By Marc A. Thiessen
Monday, November 22, 2010;
As the charges for the murder of Ahmed Ghailani's victims were read aloud in court last week, one by one, each time the jury foreman announced the verdict: "Not guilty . . . Not guilty. . . Not guilty." Incredibly, some in the Obama administration are trying to argue that Ghailani's conviction on one count is a victory. But as former Attorney General Michael Mukasey put it this weekend, "To take someone who murdered [more than 200] people and to convict him of conspiring to destroy government property is a cruel travesty."
The Justice Department is now hoping to secure a life sentence for Ghailani on that one charge, so they can brush this embarrassment under the table and forget it ever happened. That is unacceptable. Two hundred and eighty-four not-guilty verdicts should not be the last word in the Ghailani case. While he cannot be tried again for the 1998 embassy bombings in East Africa, there are still plenty of charges the government can bring against Ghailani - if they send him back to Guantanamo to stand trial before a military commission.
Ghailani's defense lawyers managed to convince a civilian jury that their client was an "innocent, naive boy [who] was fooled by his friends." In truth, this "innocent, naive boy" is a hardened terrorist who continued to commit crimes of war after our embassies in Kenya and Tanzania lay in ruins. After his success in East Africa, Ghailani became a hero in the jihadist ranks and rose quickly in al-Qaeda - becoming a top terrorist document forger, bomb-maker and travel facilitator, as well as Osama bin Laden's personal cook. (You don't get that close to the most wanted man in the world unless you are someone of proven loyalty and trustworthiness.)
Ghailani can still be charged with crimes related to these terrorist activities. Indeed, before he was sent to New York for trial in civilian court, military prosecutors at Guantanamo were preparing to try Ghailani on charges beyond his role in the embassy bombings. But Attorney General Eric Holder took the case out of their hands.
In Holder's grand scheme, the Ghailani trial was going to be the easy case that paved the way for the other terrorists in Guantanamo to be brought before civilian courts. After all, Ghailani was already under indictment for the embassy bombings before he was captured, and four people involved in attacks had been successfully prosecuted in 2001. Much of the evidence had been collected and had passed muster in federal court. Holder decided to bring Ghailani from Guantanamo and secure a near-certain conviction - which he would then hold up triumphantly as proof that federal courts were capable of handling the trials of Khalid Sheik Mohammed, Ramzi bin Binalshibh and the other high-value detainees.
But Holder's triumph instead turned into a debacle. Much of the evidence that had been used in the earlier embassy bombing trials was no longer available. For example, the owner of the truck Ghailani used in the attack - the man who nine years ago had helped establish Ghailani's role in the bombings - had since died. And then there was the trial's coup de grace, when Judge Lewis Kaplan ruled that the government's star witness - the man who delivered five crates of TNT to Ghailani - could not testify because he was first identified by Ghailani during coercive CIA questioning.
Kaplan ruled that this made his testimony the "fruit of the poisonous tree." But in a military commission - under the rules put in place by the Bush administration and approved by Congress in 2006 - there was no "fruit of the poisonous tree" rule. Any statements Ghailani made through coercive interrogations could not have been used against him. But indirect evidence and the testimony of witnesses that trace back to those statements would have been permitted. And as I pointed out in an October column, even under the Obama administration's revised military commission rules, evidence obtained through involuntary statements can be admitted if the government can show that it would have discovered the evidence anyway, or if the court finds the "interests of justice" favor it.
"A different outcome could have been expected at Guantanamo because of the different rules that pertain there," Mukasey says. "There is no question that valuable information was gotten from him that led to evidence that could have been used against him in a military commission."
But President Obama and Holder rejected the military commission route and insisted on a civilian trial. Have the "interests of justice" been served by this choice?
Administration officials say justice has been served, because Ghailani's one conviction means he will spend 20 years to life in prison. But Ghailani can be held under the laws of war as an enemy combatant until al-Qaeda ends its war on America. We don't need his one conspiracy conviction to keep him off the streets.
What is needed is action to repair the damage caused by his 284 acquittals. We owe that much to the families of his victims, whom the government failed with its insistence on a civilian trial. The best chance to give them the justice a civilian jury denied them is to bring charges against Ghailani in a military commission at Guantanamo Bay - the forum where he belonged in the first place.
Marc A. Thiessen, a visiting fellow with the American Enterprise Institute, is the author of the book "Courting Disaster." He writes a weekly column for The Post.