The following Op-Ed by Colonel Morris Davis appeared in the NY Times on the Ghailani Trial on Friday, November 19, 2010.
A Terrorist Gets What He Deserves
By MORRIS DAVIS
Washington
CRITICS of President Obama’s decision to prosecute Guantánamo Bay detainees in federal courts have seized on the verdict in the Ahmed Ghailani case as proof that federal trials are a disastrous failure. After the jury on Wednesday found Mr. Ghailani guilty of only one charge in the 1998 African embassy bombings, Mitch McConnell, the Republican leader in the Senate, called on the administration to “admit it was wrong and assure us just as confidently that terrorists will be tried from now on in the military commission system.”
The verdict — in which Mr. Ghailani was found guilty of conspiring to blow up United States government buildings and not guilty on 284 other counts — came as a surprise to many, but the outcome does not justify allowing political rhetoric like Senator McConnell’s to trump reality.
True, prosecutors suffered a major setback when Judge Lewis Kaplan of the Federal District Court in Manhattan refused to permit the testimony of the only witness who could connect Mr. Ghailani to the explosives used in the bombings. The judge did so because Mr. Ghailani claimed that he revealed the identity of this witness after being tortured by the C.I.A. The prosecution did not contest his claim, arguing instead that the identificationof this “giant witness for the government” was only remotely linked to Mr. Ghailani’s interrogation.
Judge Kaplan disagreed, saying that Americans cannot afford to let fear “overcome principles upon which our nation rests.” He said that, given the same circumstances, a military commission judge might have reached the same conclusion and barred the testimony.
Many have scoffed at this claim. Representative Peter King, a New York Republican, insists that Judge Kaplan “doomed” the case. Yet a look at the record shows that Judge Kaplan’s assessment of what a military commission judge might have decided was well founded.
Consider Mohammed Jawad, an Afghan teenager who was charged with attempted murder for throwing a grenade at an American vehicle in Kabul in 2002. In 2008 a military judge, Col. Stephen Henley, suppressed incriminating statements Mr. Jawad had made after he was beaten and his family threatened while he was in Afghan custody. The military commission charges were later dropped and last year the United States sent Mr. Jawad home to Afghanistan.
We don’t know for certain whether a military judge would have reached the same conclusion as Judge Kaplan, but given the Jawad precedent it seems very possible. Those who claim to know that the government would have gotten a more favorable ruling in a military commission are ignoring the record.
In any case, Mr. Ghailani now faces a sentence of 20 years to life. Even if he gets the minimum, his sentence will be greater than those of four of the five detainees so far convicted in military commissions. Only one defendant, Ali Hamza al-Bahlul, has been sentenced to life, and this was after he boycotted his tribunal and presented no defense.
Of the four detainees who participated in their military commissions, Omar Khadr, a Canadian citizen who was 15 when arrested, is serving the longest sentence after pleading guilty to murder. Yet he will serve no more than eight years behind bars, less than half of Mr. Ghailani’s minimum incarceration. Salim Hamdan, Osama bin Laden’s former driver, was sentenced to five and half years in 2008 but given credit for time served; five months later he was free. There is no reason to assume that a military commission sentence will be more severe than one from a federal court.
In addition, Mr. Ghailani may well serve his sentence at the “supermax” federal prison in Florence, Colo., where others convicted in the embassy bombings are confined. If so, he will spend more time in solitary and enjoy fewer privileges than those under the most restrictive measures at Guantánamo.
President Obama is in a no-win situation when it comes to trying detainees — any forum he chooses will set off critics on one side of the debate or the other. I hope he pauses to reflect on what he said at the National Archives in May 2009: “Some have derided our federal courts as incapable of handling the trials of terrorists. They are wrong. Our courts and our juries, our citizens, are tough enough to convict terrorists.”
The Ghailani trial delivered justice. It did so safely and securely, while upholding the values that have defined America. Now Mr. Obama should stand up to the fear-mongers who want to take us back to the wrong side of history.
Morris Davis, a former Air Force colonel, was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, from 2005 to 2007. He is the director of the Crimes of War Project.
Mo misses the point. These detainees should be held indefinitely as prisoners of war. They can also be tried as illegal combatants and for violating the laws of war if the evidence warrants, but should not be tried as criminals. This practice would remove the ambiguity of civil trials versus military commissions. The commissions shoulld take precedence for trials based on the laws of war.
This misguided focus on criminal acts was a key error of Bush that has been perpetuated by Obama. We are in a war and we should treat it as such by using the tools at our disposal for removing enemy combatants from the battlefield.
But was this dude an enemy combatant in 1998? I am not taking a position on this issue at this point. but if we weren’t at war then it seems to me blowing up embassies was not different than blowing up government buildings in Oklahoma City. Timothy McVay stood trial in civilian court.
OMG! Is this OUR Morris Davis?
Blowing up an embassy by a foreign entity should be viewed as an act of war. Bill Clinton certainly used the military to respond to some of these attacks, i.e. Tomohawk missile attacks. So our primary response was military in many cases even if no formal declaration of war existed.
It sure is.
Kelly, I would go so far as to say blowing up a govt. building is an act of war also, even if done by an American. I think in this case, the lines are blurred. I am not sure the same thing wouldn’t have happened in a military tribunal.
How about the shoe bomber? Was he not tried in civilian court?
The issue that will continue to plague us is how information is extacted and if it can be used as evidence.
@Moon-howler
Wow. He’s like…famous. I mean, I knew he was a “somebody,” but now he’s a literary somebody. I mean, not that we’re not all “somebody,” but…
Oh never mind. I just think it’s cool, and I don’t have anything to add to the conversation at the moment.
Kelly – I don’t necessarily disagree with you. In my view, we (under both Dem and Repub administrations) have never come to grips with whether terrorism is warfare or criminal conduct. Deciding which it is answers many of the questions about the appropriate means to address it. I argued in an op-ed I wrote in the Wall Street Journal last year that the administration needed to choose war crimes tribunals or federal courts, but trying to have it both ways is a mistake. http://online.wsj.com/article/SB10001424052748704402404574525581723576284.html
With respect to the East Africa Embassy Bombings: There were 21 individuals indicted in connection with the bombing of the embassies in Tanzania and Kenya in 1998 by the Clinton Justice Department. Some (like Osama bin Laden) are still fugitives, some have died or were killed, some are in custody in England, and a few have been apprehended by the U.S. In 2001, four of the 21 that had been captured were prosecuted by the Bush Justice Department and sentenced to life. They were all sent to the Supermax and no one has heard of or from them since. The Obama Justice Department followed the same course of action as the Bush Justice Department and prosecuted Ghailani in federal court. The 2001 trial and the 2010 trial were based on the exact same events and the exact same indictment. To treat them differently, in my view, would be problematic. The main difference is that in the latter case the accused went into the CIA black sites and was tortured after he was captured and that made prosecuting him a challenge. I don’t know that the outcome would have been any different in a military tribunal.
He’s SOOOOO famous!!! Morris, will you autograph my boobs?!?!
@Slowpoke Rodriguez
LOLOL! Shut up, Slowpoke.
Get him, Pinko!!!!!!!!!!!!!!!! You go girl!
I’ve actually given some thought to how terrorists should be tried. I think since terrorists are essentially declaring war on our country and IN our country, then terrorists, no matter where they come from, even if they are U.S. citizens, should be tried by a jury comprised of both military and civilian representatives.
@Morris Davis
http://online.wsj.com/article/SB10001424052748704402404574525581723576284.html
At the risk of having Slowpoke laugh, I want to say…WOW. How cool are you, Sir Morris? And you’re here at Moonhowlings. This must be THE place to be!
Interesting article but is this the same Morris Davis who is famous for calling people teabaggers?
And what are you famous for, Hello? Hmmmmm….Let he who is without sin….