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In Terror Prosecution Cases, Justice Does Not Mean Convictions

By Mary Shaw

23 November, 2010

On November 17, in federal court in New York City, Guantanamo detainee Ahmed Khalfan Ghailani was convicted of a single charge of conspiracy in connection with the 1998 U.S. embassy bombings in Kenya and Tanzania. He was acquitted of 284 other counts against him. Ghailani was the first Gitmo detainee to be tried in federal court rather than a military commission. His sentencing hearing is scheduled for January.

Some on the right are pointing to the acquittals as proof that trying terrorism suspects in a civilian court does not work. But these critics are conveniently ignoring the fact that four other defendants in the same bombings had been sentenced in 2001 - also in federal court - to life in prison without parole. Ghailani could face a similar sentence, and will serve at least a minimum of 20 years.

They also misconstrue the fact that some evidence in the case - specifically, information obtained under torture - was inadmissible in the case. This is routine in credible legal systems, since experts agree that torture does not produce reliable intelligence. After all, under torture, the victim is likely to say whatever he thinks his torturer wants to hear, in order to make the pain stop.

The Center for Constitutional Rights (CCR), which represents a number of Guantanamo detainees, believes that the civilian court system is imperfect but still more just than the military commissions. CCR issued the following statement in response to the Ghailani verdict: "CCR questions the ability of anyone who is Muslim to receive a truly fair trial in any American judicial forum post-9/11. Both the military commission system and federal criminal trials have serious flaws. However, on balance the Ghailani verdict shows that federal criminal trials are far superior to military commissions for the simple yet fundamental reason that they prohibit evidence obtained by torture. If anyone is unsatisfied with Ghailani's acquittal on 284 counts, they should blame the CIA agents who tortured him." Indeed, and the Bush-Cheney administration that authorized the abuse.

Joanne Mariner, counterterrorism director at Human Rights Watch, also questions the military commission system's competence. "The federal court system has been tested over time, while the military commissions are making things up as they go along," said Mariner.

Daphne Eviatar, of Human Rights First, agrees. "The questions [Ghailani's] verdict raise are why the government has not tried all terror suspects in federal court and when will the government announce additional prosecutions," said Eviatar. "I have watched the hearings at Guantanamo and Ghailani's trial in New York. What strikes me is how efficient, fair, and transparent the federal court prosecution was in contrast to the recent Khadr decision at Guantanamo which left one with the uneasy feeling of justice gone awry. The military commissions remain rife with constitutional defects. Federal courts have far more legal tools to prosecute terror suspects."

Rob Freer, Amnesty International's USA researcher, addressed the critics' attitude as follows: "If the only procedure that critics of ordinary criminal trials would accept is one that guarantees convictions regardless of the evidence, then what has been demonstrated is a gross failure on their part to commit to the most basic principles of fairness."

So President Obama now faces an important choice: Appeasing the right vs. doing what's right.

Choosing the latter is the only way he'll be able to keep his campaign promise, albeit too late, of closing Guantanamo and returning this nation to the rule of law.

And it's the only way he'll be seen as leading, not following, his critics.

Mary Shaw is a Philadelphia-based writer and activist, with a focus on politics, human rights, and social justice. She is a former Philadelphia Area Coordinator for the Nobel-Prize-winning human rights group Amnesty International, and her views appear regularly in a variety of newspapers, magazines, and websites. Note that the ideas expressed here are the author's own, and do not necessarily reflect the opinions of Amnesty International or any other organization with which she may be associated. E-mail: mary@maryshawonline.com