In terrorism trial, the system worked

Our view: A terror trial in NYC shows justice can be done by following the rule of law

November 18, 2010

When a federal jury in New York found terrorism suspect Ahmed Khalfan Ghailani guilty Wednesday on just one of the more than 280 charges of conspiracy and murder, it was to be expected that critics would leap to condemn the verdict as proof the Obama administration was wrong to insist on trying terrorism suspects in civilian courts rather than before military tribunals.

In fact, however, the jurors' decision proved just the opposite: that despite the many obstacles the government had to overcome in getting evidence of Mr. Ghailani's crimes before the jury, the defendant was still convicted and now faces a sentence of 20 years to life in prison. If the purpose of the trial was to secure justice for victims of Mr. Ghailani's terrorist acts and protect Americans from future attacks, the trial in New York accomplished that.

Though the jury failed to convict Mr. Ghailani on any of the murder counts he was charged with in connection with the 1998 bombing of the U.S. embassies in Kenya and Tanzania, which killed 242 people and wounded thousands more, it's virtually certain that he will spend the rest of his life behind bars. By scrupulously following the law, the jurors demonstrated that justice could be done in the country's civilian criminal courts, using standard rules of evidence, with results just as definitive as those rendered by a military commission.

The real problem was never that Mr. Ghailani was tried in civilian court but that so much of the evidence against him was tainted as a result of the CIA's having held him in secret prisons around the world and having tortured him for years after he was captured in Pakistan in 2004. Had the defendant never been subjected to such treatment, there would have been ample evidence to convict him not only of the single count of conspiring to destroy government property and buildings the jury agreed on but also for the deaths of all those who perished in the embassy attacks.

The government's star witness, for example, was a man named Hussein Abede, who, according to prosecutors, sold Mr. Ghailani the large quantities of explosives used to blow up the U.S. embassy in Dar es Salaam. Mr. Abede was ready to testify at the trial that the defendant purchased those materials, but because the CIA allegedly had tortured Mr. Ghailani to obtain the witness' name, the jury was never allowed to hear Mr. Abede's testimony.

The same problem prevented prosecutors from using much of what Mr. Ghailani himself admitted to federal investigators following his capture. Over a period of four days in 2007, after he had been transferred to the U.S. detention facility at Guantanamo, Mr. Ghailani gave the FBI information that, in the words of prosecutors, "amount to a confession" of his involvement in the bombings. In those conversations, Mr. Ghailani reportedly even expressed something akin to remorse for the lives he had helped destroy. Yet because by then he had already been subjected to torture by the CIA, none of those statements could be used to establish his guilt.

The obstacles the government faced in prosecuting Mr. Ghailani all stemmed from the Bush administration's wrong-headed embrace of torture as a central element in the war on terror and its co-opting of the Justice Department to come up with legal rationales for its use. The flimsiness of the contorted arguments government lawyers came up with to justify such practices as water-boarding and holding prisoners in freezing cells would have been comical if they hadn't done so much to weaken the government's power to bring terrorism suspects to justice.

The outcome of this week's trial undoubtedly will be used by administration opponents to criticize its proposal to close Guantanamo and try future terror suspects in federal courts. But adherence to the rule of law is not a luxury the government can dispense with whenever it suits its purposes but a fundamental principle that must be upheld not only because it is one of the most cherished values in a democracy but because it is also our most potent weapon in the fight against terrorism.

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