by Eric Martin
In what should have been heralded as a dramatic triumph for our criminal justice system and our laudable dedication to the rule of law, Ahmed Ghailani (who was involved in the embassy bombings in Africa in the late 1990s) was convicted and will likely serve life in prison (he faces a minimum of 20 years, but given the nature of the crimes, the judge will undoubtedly opt for the maximum of life without parole).
This conviction was obtained despite the fact that Ghailani was tortured and, thus, significant portions of the evidence against him was inadmissible.
Nevertheless, many torture-advocates and others that favor discarding Constitutional assurances of fair trials, have been treating the Ghailani conviction as proof of the need to jettison key sections of the Bill of Rights because Ghailani was "only" convicted on one charge, and was acquitted of the two-hundred-plus other charges - the acquittals largely a result of the tainted evidence excluded because it was obtained via torture. Yet another reason why torture is an ineffectual, counterproductive policy. But I digress.
Unfortunately, the media seems to be buying into the spin that one conviction is a grave defeat because Ghailani was acquitted on the other charges. Paul Waldman (whose post is cleverly titled, Terrorism Conviction Supposedly Demonstrates Futility of Seeking Terrorism Convictions) has a decent round-up of media reactions. This article from James Meek in the New York Daily News is typical:
Ahmed Ghailani was supposed to be the test case, the reason why political opposition to trying Guantanamo goons in civilian courts was just hot air.
But now, after "Foopie" Ghailani was acquitted on all but one count for his role in the 1998 East Africa embassy bombings by Al Qaeda, Team Obama's hope of trying Gitmo's worst in civilian courts has been all but dashed.
Look for the secure courthouse at the U.S. Naval base in Cuba to get busy with military commission trials for many of the remaining inmates of the terrorist prison there, who number less than 200 now.
This sentiment is deeply disheartening on many levels.
First of all, our adherence to the rule of law is premised on the notion that all are entitled to fair trials - that you are innocent until proven guilty, and that the executive cannot be judge, jury and executioner. Living up to these principles requires that we accept the inevitability that some guilty parties may be acquitted. This unfortunate eventuality is mitigated by a glimpse at the alternative - lifetime imprisonment or execution based on the say-so of the executive, which would result in a far worse tyranny.
Thus, even though OJ Simpson was acquitted, there was not a massive, coordinated call to disregard the requirement that accused murderers get fair trials. Unlike OJ, however, Ghailani wasn't even fully acquitted - he was convicted of a very serious crime, and will almost certainly spend the rest of his life in prison because of it.
Some, however, complain that Ghailani was "only" convicted of conspiracy, and not any of the associated murder charges. In order to put this in perspective, I'll resort to another historical analogy: Al Capone (a truly inhumane and murderous individual) was convicted on relatively benign sounding tax-related charges (which carried a stiff penalty regardless). But, again, the failure to secure a conviction on "more serious" charges was not used as a pretext for stripping away vital Constitutional protections for certain classes of accused.
In the present case, we should also look at the alternatives proposed. Meek suggests that we shift suspects out of the criminal justice system and into military commissions. But, and this is key, military commissions have a much worse track record of obtaining convictions in terrorist-related cases and, if and when they do, the sentences tend to be much lighter. In fact, the Ghailani sentence is harsher than any sentence handed out in a military commission to date.
As Adam Serwer points out:
There have been hundreds of civilian terrorism convictions in civilian court since 9/11, the vast majority of which were secured by the Bush administration. There have been four military commissions convictions in the past decade, and they are currently facing legal challenges that may put past and future convictions in doubt.
And Serwer again, from today:
The military commissions have, by and large, been a disaster, only securing five convictions in their entire existence. In the last military commissions trial, which involved Omar Khadr, the detainee pleaded guilty to murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, providing material support for terrorism, and spying, and received an eight-year sentence. He'll serve the first year at Gitmo, then he'll be transferred to Canada where he could be eligible for parole after serving two thirds of his sentence. That was actually one of the harsher military commissions sentences -- David Hicks got nine months, Salim Hamdan got five months. And we're supposed to view Ghailani's minimum sentence of 20 years as a "failure"? [emphasis added]
Just as torture advocates unwittingly endorse a form of interrogation that is ultimately far less effective in terms of garnering useful information under the irrational belief that such a morally reprehensible short-cut keeps us safer (while its use badly diminishes our principles and degrades our image in the world because of its repugnant nature), so, too, do proponents of military commissions urge the adoption of a justice system that is only more gratifying on a base, emotional level if you are willing to vastly undervalue the importance of our ostensibly cherished principles, and ignore the outcomes to boot.
Nevertheless, this will undoubtedly be labeled the "tough on terror" approach.
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