The Corner

Detainee Transferred to Civilian Courts to Face Embassy Bombing Charges

Today’s big combatant news is that Ahmed Khalfan Ghailani, a Tanzanian jihadist, has been transferred from Gitmo to my old haunts — the U.S. District Court for the Southern District of New York (in Manhattan) — for a full bells-n-whistles civilian trial. Ghailani is one of al-Qaeda’s bombers of the U.S. embassy in Tanzania in 1998. So it’s not that much of a surprise — he’s been under indictment for many years, and the last revised (i.e. “superseding”) version of the charges in 2001 alleged 286 counts against him, mainly owing to the fact that the conspiracy resulted in the murders of at least 224 people at the embassies in both Dar es Salaam and Nairobi.

Is this a good idea? Well, it depends on what you hope to accomplish. From the perspective of the Obama administration’s policy preferences, it is a shrewd move. The administration is trying fitfully to return to the law-enforcement model of counterterrorism, which means atrocities are treated as crimes rather than acts of war, and are addressed by trials in which defendants are vested with all the rights available in the criminal justice system — including lavish discovery rights. If that’s where you’re coming from, it’s hard to see how they could have picked a better test case than Ghailani.

The embassy bombings have already been the subject of a successful trial (which ended in July 2001); the discovery pertinent to the case (at least that which was discoverable as of 2001, plus witness debriefing tapes that emerged post-trial) has already been disclosed to other al-Qaeda operatives; and the evidence against Ghailani is overwhelming. On that last point, I just reviewed the transcript of his Combatant Status Review Tribunal (the proceeding at which the military tests a detainee’s designation as an enemy combatant). Ghailani made devastating admissions at the hearing. Specifically, he admits working with al-Qaeda, being trained in al-Qaeda camps, and he acknowledges most of the actions he’s accused taking to carry out the Tanzania bombing — though he laughably denies knowledge of what those actions were for. 

Obviously, assuming the Justice Department tries to introduce these statements at trial, there will be litigation over their admissibility – though clearly voluntary, Ghailani’s hearing statements took place long after indictment, and he received neither Miranda warnings nor the assistance of counsel (which is appropriate since the purpose of a CSRT is to determine if a person is detainable under the laws of war, not to try whether someone is guilty of criminal offenses). In any event, even without these admissions (but certainly if the government is allowed to prove them), this trial should be reasonably short — not a seven-month extravaganza like the first embassy bombing trial. It should result in Ghailani’s conviction, after which he’d be sentenced to death or life-imprisonment.

Assuming that happens, the case will be used to argue that the criminal justice system has again proved its mettle as superior in every way to the military system — which has experienced lots of problems and imposed, in one of its few cases, an unconscionable sentence of time-served for bin-Laden’s bodyguard, Salim Hamdan. Indeed, in his announcement, Attorney General Holder began making just that case:

With his appearance in federal court today, Ahmed Ghailani is being held accountable for his alleged role in the bombing of U.S. Embassies in Tanzania and Kenya and the murder of 224 people.  The Justice Department has a long history of securely detaining and successfully prosecuting terror suspects through the criminal justice system, and we will bring that experience to bear in seeking justice in this case.

Of course, the issue has never been whether we can get terrorism convictions in federal courts (and while most terrorists have been securely detained in federal prisons, not all have). The question is whether prosecution in civilian courts is a sound national security strategy given (a) the limited capacity of the system to apprehend and bring international terrorists to trial, and (b) the generous due process rules which force us to disclose skads of intelligence to terrorists – and expose our sources to testify against terrorists — even as their network is still at large and still committed to killing us. That latter seems like it shouldn’t be much of a concern with Ghailani, but even this is by no means certain.

The charges entail not only narrow murder counts focused on the bombing but very broad conspiracy charges (including the overarching al-Qaeda conspiracy to murder Americans). Broad charges trigger broad discovery obligations. Rest assured Ghailani’s lawyers will ask for every shred of information in the government’s files, even for years after the embassy attacks — arguing that, since the government has chosen to charge Ghailani with that conspiracy, and since it contends the al-Qaeda conspiracy continues to this day, Ghailani is entitled to all relevant information in the government’s possession regarding al-Qaeda.

Regardless of whether we think these cases belong in the civilian courts, we obviously want to see the Justice Department succeed here — and see that this savage gets what’s coming to him. So I hope the prosecutors in my old office refine the charges so they are tightly tailored to the embassy bombings and lay the groundwork for persuading the judge that this case should not occasion disclosure of all we’ve learned about the enemy in the eleven years since.

Meantime, though the administration has made a good choice in terms of furthering its policy preferences, I don’t think success in the Ghailani case will demonstrate that all future cases involving enemy combatants would work well in civilian court.

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