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Ghailani: Why 285 Counts?



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There is some conspiracy theory stuff making the rounds. Ordinarily, the Justice Department should not load up indictments with hundreds of charges, especially when it takes just one or a few charges to put a defendant out of commission for a mountain of years. So some people are suggesting that the Obama/Holder DOJ deviated from this usual practice in order to make a spectacular statement about the effectiveness of civilian trials – you know, visions of the foreman going “guilty … guilty … guilty” 284 times, instead of “not guilty … not guilty … not guilty.”

That did not happen here. Don’t get me wrong: there’s no question that Attorney General Holder was trying to make a powerful political statement that civilian due process can handle enemy combatants, and he was certainly hoping for “guilty … guilty … guilty …” But in this he was merely exploiting an opportunity, not orchestrating one.

The decision to indict the case the way it was indicted was made over a decade ago, when the embassy bombing case (along with the al Qaeda conspiracy to kill Americans) was first charged by the U.S. attorney’s office in Manhattan (my old office) during the tenure of Attorney General Reno. (Eric Holder was Deputy AG at the time). The number of counts had nothing to do with demonstrating the effectiveness of the civilian justice system because there was no alternative military option competing with it. (For what it’s worth, I had begun arguing that al Qaeda was a military challenge, not a law-enforcement problem – in a 1999 Weekly Standard essay, written while I was on a brief hiatus from government service. But no one paid any attention to such contentions until after 9/11.)

There are three main reasons for the 285 counts in the indictment. First, because it is imperative to convict terrorists if you’re convinced they’re guilty, you have to throw the kitchen sink at them – different rules apply when it comes to mass murderers. Second, it was appropriate to acknowledge each of the 224 people killed, so each homicide got a separate count. Finally, there was a need to demonstrate gratitude to the governments of Kenya and Tanzania, who allowed us a wide berth to investigate and turned the terrorists over to us for prosecution in the U.S. That is, the large number of counts would hopefully show Kenyans and Tanzanians that justice was done for atrocities committed on their soil, and that we didn’t overlook their suffering. In sum, there were a lot of counts because Ghailani was tried on that same indictment. That indictment was not designed to make a point about civilian prosecutions, even though it would surely have been used that way if the verdict had come out the way the Obama administration was hoping.



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