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Terrorist Bomber/Conspirator Guilty of One Count in Civilian Court

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Am I the only one appalled by the consistency of the press in the coverage of the trial and verdict in the case of now-convicted terrorist, suspected al-Qaeda operative, Ahmed Ghailani? Ghailani was tried in a civilian court; tried for complicity in the 1998 bombings of US embassies in Kenya, and in Tanzania. Those bombings resulted in the loss of 224 lives. Government prosecutors said that terror suspect Ghailani purchased a truck and explosives; then he left Africa and went into hiding in Pakistan. In Ghailani’s behalf, his defense team said he was being “used by al-Qaeda,” and was never aware of the terrorism plot.

Ahmed Khalfan Ghailani, born in Zanzibar, Tanzania, is known to be 35 or 36 years of age and has a wife and children. He is thought by military authorities to have been at one time a bodyguard and a cook for Osama bin Laden. He was tried according to the standards of evidence and testimony that have been developed and finely tuned in American courts for generations.

Many in the press, and in the political arena have considered as options in the arbitration of the current terror suspects, traditional American civilian courts, such as we read about and participate in daily in matters ranging to murder, kidnapping, civil disobedience, etcetera, and the alternative option, military tribunals which can provide quick trials in time of war. These tribunals are indicated when time constraints are involved, as well as in cases hampered by inability to obtain evidence. The “chain of evidence”, and rules regarding hearsay, always applied in civilian and criminal trials, may preclude conviction in these cases, if such restraints were applied. A military tribunal necessitates agreement of a majority of several military judges, high ranking officers, to obtain a guilty verdict. Decisions of a military tribunal cannot be appealed in federal court. The President, as Commander-in-Chief, or in some cases a panel of review, comprised of military personnel and, in some cases,  civilians, can hear an appeal. Such tribunals do not satisfy most protections and guarantees provided by the United States Bill of Rights.

President George W. Bush ordered that certain detainees imprisoned at the Naval Base at Guantanamo Bay were to be tried by military commissions. This decision sparked controversy and litigation. On June 29, 2006, the U.S. Supreme Court limited the power of the Bush administration to conduct military tribunals of suspected terrorists at Guantánamo Bay. Ahmed Khalfan Ghailani is one such detainee.

The press has been uniform in reporting their discontent with the verdict in the trial; they felt that a military tribunal would be more just, more likely to find guilt and to punish. They sought a guilty verdict on the broad range of charges, and a guarantee of a sentence of a life-time in confinement. They were and still are caught up in a quest for retribution. But it was a civilian jury that found Ghailani guilty of conspiracy; specifically, “conspiracy to damage or destroy U.S. property.” That jury did not register a finding of guilt for the remaining 284 charges, including murder, and the use of weapons of mass destruction. A key witness in the prosecution, Hussein Abebe, who is believed by many to have sold explosives to Ghailani, was prevented by Judge Lewis Kaplan from testifying on grounds that the CIA had derived the information by subjecting Ghailani to “rough questioning”. Defense attorney Peter Quijano said his client was subject to “enhanced interrogation” for 14 hours over a 5 day period. Prosecutor Michael Farbiarz at this revelation rose and said the information about the interrogation was “not supposed to be mentioned in open court.” Mr. Quijano withdrew the statement.

The New York Daily News feels that Obama and US Attorney General Eric Holder “gambled and nearly lost” by holding a civilian trial. It was felt that a military court martial with far fewer restrictions on evidence and witnesses, would produce the desired verdict. Impartiality was the last thing needed. This view is shared by the vast majority of American press outlets covering this terrorism case. Emotion seems to override clear thinking and judicial objectivity.

The National Post quotes legal expert Benjamin Wittes, of the Brookings Institute, as saying that the final sentence for Ghailani, which in fact may be the mandatory minimum of 20 years in prison, will “fail to quell the political storm.” He points out  to those seeking retribution, “A terrorist hugging his lawyers in victory can’t be considered a confidence builder.” The Post agrees.

A Washington Times editorial on Thursday, November 18, compares this convicted conspirator with Osama bin Laden. The un-named author would like us to feel the same anger we might feel if bin Laden had been tried, then walked free from the courtroom.

One exception to the irrational vehemence expressed by the media toward this finding that fell short of press expectations is the view of National Public Radio. NPR’s Carrie Johnson called the trial a “test run” for the 174 men still detained in Guantanamo. It was a test, she said, whether testimony or evidence attained through “enhanced interrogations” would be admissible, and whether a suspects Sixth Amendment right to a speedy trial was violated. Ahmed Ghailani was held for nearly five years awaiting trial.

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About John Lake

John Lake had a long and successful career in legitimate and musical theater. He moved up into work behind the camera at top motion pictures. He has done a smattering of radio, and television John joined the Blogcritics field of writers owing to a passion for the liberal press, himself speaking out about the political front, and liberal issues. Now the retired Mr. Lake has entered the field of motion picture, television, and video game (now a daily gamer!) critique. His writing is always innovative and immensely readable!
  • http://www.tomdegan.blogspot.com Tom Degan

    Great piece, John. I discovered you on Sarah Goldston’s “Much Ado” page. Bravo.

    Tom Degan
    Goshen, NY

  • John Lake

    Gracias! Ms. Goldston is an accomplished writer and blogger, and her group is largely made up of such. I enjoyed writing this important article.

  • Baronius

    Andrew McCarthy wrote an interesting piece on this subject for National Review. I’d be curious to hear your opinion of it.

  • John Lake

    From a human-rights perspective, moreover, it is perverse to reward alien mass murderers with the enhanced due process of civilian courts — with the same rights as the Americans they kill.
    I have read the article and have some question as to whether an enemy combatant can be tried in American civil court. Basically I stand by what my article here says. The American court system is solid, tried and proven. As to the forgoing quote, it may be mentioned that the alien mass murderers are only charged with these crimes. A presumption of guilt is premature.

  • http://takeitorleaveit.typepad.com/an roger nowosielski

    Well written article, John. But how would you explain the MSM stand? It doesn’t compute.

  • http://takeitorleaveit.typepad.com/an roger nowosielski

    There’s one argument in favor of using civilian courts in such cases: civilian control of the military.

  • John Lake

    Roger nowosielski: But how would you explain the MSM stand? It doesn’t compute. It just doesn’t. The media is generally liberal. Their unexpected stand, generally universal, has me stumped.
    As to the matter of civilian control of the military – we see the damage done by civilian soldiers in particularly Afghanistan. Civil control leads to lack of transparency, and the politicians avoid responsibility for damage. Charges for food and supplies would skyrocket. There may be an issue of who is eligible to serve. Corruption at new and greater levels is unavoidable. Then the government could take over the civilian military, and sustain charges of “socialism”.

  • Baronius

    John – What I found interesting about that article was its negative appraisal of both the civilian court (too few convictions) and the military court (too light sentences). Of course, McCarthy may just be reflecting the perspective of a former prosecutor.

    It seems like the strongest arguments for not using the civilian court system are security/confidentiality and the presumption of civil rights. You say that the civilian court system is tried and true. Is it in those two areas?

  • John Lake

    Matters tried in civil courts are eligible and subjected to a wide range of appeal. The press, with or without real-time recording, is permitted.
    Baronius, if you have some specific challenges or instances with regard to security or confidentiality you have my attention.

  • Baronius

    Specifics? Nope. I hope I never do hear any specifics that would endanger troops or operations. I’d imagine that it would be an issue in many trials, however.

  • John Lake

    Certainly those trials would be closed to the public and the media.

  • Matt

    Good article? Are you kidding? John states that “These tribunals are indicated when time constraints are involved, as well as in cases hampered by inability to obtain evidence” and “They were and still are caught up in a quest for retribution.” Access to the courts, fair trials, a real attorney, rights, the constitution are for citizens of this country, not foreign terrorists. Him being convicted of on only one of the 286 counts is exactly why he shouldn’t have access to our courts. And then John states in one of his comments that “The American court system is solid, tried and proven.” How about saying “Judge Kaplan should step down?” Having tough crime laws is not about revenge but about prevention. Do you understand that?

  • John Lake

    Judge Kaplan did a fine job; he showed courage.

  • Matt

    John, what if it was your sister, father or other close loved one? Would you still describe Kaplan as having courage? What is deeper in your liberal mind? What is it that you don’t like about our country? Why is it that your views are so extreme that you defend what happened – a man getting off on 224 counts of murder? You also fail to explain why you describe a tribunal’s purpose as “in cases hampered by inability to obtain evidence.” A tribunal is because there is not enough evidence? Please explain further.

  • John Lake

    Justice is not served by finding a man with some guilt guilty of a broad range of charges. At one point I thought and wrote that Ghailani drove the truck to pick up the explosives used in the 1998 bombings of US embassies in Kenya, and in Tanzania. He was sent by bin Laden, himself, for whom he was a cook, and possibly, a bodyguard. Upon his return with the explosives, the young Ghailani went into hiding, from the authorities, and possibly too, from bin Laden.
    I later discovered that Ghailani didn’t drive the truck, someone else drove. Ghailani was unable to carry the explosives on his bicycle.
    There was a witness; the individual who sold the explosives to bin Laden. But since his name was provided by Ghailani during “enhanced interrogation” his testimony was not admissible. If that testimony had been allowed in a tribunal, and if there was media access to the tribunal, there would have been considerable discussion, and the appearance of approval of torture to gain information from those suspected of terrorism. Since the only thing Ghailani was guilty of was not related to the actual use of the explosives, the penalty he will pay, of 20 years in captivity seems reasonable; maybe even harsh.

  • John Lake

    Ghailani’s case is expected to come to a close on Tuesday, January 25. Ahmed Ghailani is expected to receive a life sentence.