Analysis: Verdict dims outlook for civilian trials of terrorism detainees

By Peter Finn and Anne E. Kornblut
Washington Post Staff Writers
Thursday, November 18, 2010; 11:09 PM

What was a very bad day for Ahmed Ghailani, now a convicted felon likely to spend many years in a supermax prison, was also, because of the super-charged politics surrounding Guantanamo Bay, a pretty bad day for the Obama administration.

To be sure, the 36-year-old Tanzanian was convicted Wednesday of one count of conspiracy in federal court in New York. In addition, Ghailani could well serve life in prison for his role in the 1998 U.S. embassy bombings in East Africa by al-Qaeda. And it's at least debatable whether the outcome would have been different in a military commission in Cuba.

But the political reality is that the prospect of a tough sentence for conspiracy to destroy U.S. property by fire or explosives was largely swallowed up by a stunning verdict in which Ghailani was acquitted of 284 counts, including all 224 murder counts.

Across the administration, from the White House to the Justice Department, and among some human rights advocates, there was private dismay that the first trial of a Guantanamo Bay detainee brought into the United States did not result in a clear and unequivocal conviction on all counts.

Neither President Obama nor Attorney General Eric H. Holder Jr. commented publicly on the verdict, which other officials said they interpreted as a sign of quiet defeat. The political climate for civilian trials will grow only worse in January once Republicans - who are widely opposed to using federal courts to prosecute Guantanamo detainees - take over the House, officials said.

"There's no political will for it," said one official directly involved in Guantanamo issues, speaking of federal trials.

Even before the jury of six men and six women issued its verdict, Obama was facing some determined and bipartisan opposition to further civilian trials of Guantanamo Bay detainees. After the verdict, the president's political adversaries are likely to be even more unyielding.

On the Senate floor Thursday, Republican Minority Leader Mitch McConnell (Ky.) said the president should offer assurances that "terrorists will be tried from now on in the military commission system that was established for this very purpose at the secure facility at Guantanamo Bay, or detained indefinitely, if they cannot be tried without jeopardizing national security."

Senior administration officials expressed frustration with the Republican response to the Ghailani case, saying the verdict changed nothing about the legal viability of civilian courts to handle terrorist cases. "Ghailani is an unfortunate addition to a long-running saga of politicization and outright distortion of this issue," one official said.

Had the jury found Ghailani not guilty on all counts, as at least seems possible now, it could have resulted in the extraordinary spectacle of the Obama administration ignoring the judgment of a jury of ordinary Americans and returning Ghailani to military custody and possibly his old cell at Guantanamo Bay's Camp 7 detention center. That is a scenario also likely to temper judgments about proceeding with other civilian trials.

At the Justice Department, spokesman Matthew Miller said "one of the strengths of the criminal justice system is its ability to handle difficult cases.

"This was a difficult case in that there were questions about Ghailani's treatment during the previous administration" - such as the use of enhanced interrogation techniques - "that led to a key witness being excluded," he said.

The judge said the government only learned about that witness because of the CIA's questioning of Ghailani at a secret prison. It is unclear whether the witness would have been allowed to testify at a military commission.

Some leading Democrats and human rights advocates said the administration should still press the case for more federal trials of Guantanamo inmates, including Khalid Sheik Mohammed, the self-declared mastermind of the Sept. 11, 2001, attacks, and his four co-conspirators, whose case is in semi-permanent abeyance.

Rep. Jane Harman (D-Calif.), the chairman of the homeland security subcommittee on intelligence, noted that Ghailani is facing a sentence stiffer than all but one meted out by military commissions.

"More than 200 years of American jurisprudence and a clear track record of success should not be thrown out the window or falsely characterized for political advantage," Harman said. "The Obama administration needs to push back."

Denis McDonough, the deputy national security adviser, said the White House remains committed to using all available venues for trying terrorism suspects. And in the past year, with little controversy, the administration has tried numerous terrorism suspects, including individuals who planned attacks on Times Square and the New York subway system.

But the legacy cases at Guantanamo Bay have become wrapped up in a strident public debate about Obama's national security policies. Administration officials concede that Congress, by denying funding and legal authority, has blocked efforts to close the military prison, while hostile public sentiment has thwarted a series of federal trials the administration had hoped to stage.

Privately, administration officials say they are leaning toward holding detainees such as Mohammed indefinitely while proceeding with a select number of military commissions. Federal trials, if they happen, might have to await a second Obama term, if there is one.

Jack Goldsmith, a former Justice Department official in the George W. Bush administration and now a Harvard Law School professor, wrote on the Lawfare blog Thursday that the military detention option is a "tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation. And this morning it looks more appealing than ever."

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