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On trial: Terrorists, courts and military tribunals

Post by Patrick O'Callahan on Nov. 18, 2010 at 7:35 pm |
November 18, 2010 5:38 pm

This editorial will appear in tomorrow’s print edition.

As a matter of political reality, President Obama’s hopes of trying high-value Guantanamo terror suspects in civilian courts probably died Wednesday in the U.S. District Court in Manhattan.

When a New York jury wound up acquitting an accused al-Qaida bomber of more than 224 murder charges – charges the Justice Department had been confident would stick – the verdict was instantly politicized as evidence that terrorists can’t be held to account with normal criminal prosecutions.

But the reaction is itself evidence that, more than nine years after the terror attacks of 9/11, too many Americans continue to let fear compromise their notions of justice.

The jury’s decision was admittedly screwy.

Ahmed Ghailani – the first Guantanamo detainee tried in federal court – stood accused of helping blow up two U.S. embassies in East Africa in 1998. Incriminating evidence abounded, but the judge prevented federal prosecutors from calling a key witness because the CIA had extracted his identity from Ghailani during coercive interrogations.

Based on the evidence that was admitted, the jurors convicted Ghailani of conspiring to blow up the buildings – but not of killing the 224 people killed by the explosions.

Administration officials found consolation in the single conviction, which could put Ghailani away from 20 years to life. Still, that is only one conviction short of a complete shutout for the Justice Department.

But the idea that better justice would have emerged from a military tribunal – the alternative to a criminal trial – is itself screwy.

Several Qaida-linked terrorists have now been tried and convicted in federal courts, and dire predictions about the outcome haven’t been borne out. Though open to the public, they haven’t been turned into pulpits for propaganda by defendants. The accused terrorists weren’t set free, and the trials haven’t run up enormous security expenses.

Nor is there any guarantee that Ghailani would have been convicted on all those murder charges in a Guantanamo military tribunal. The handful of tribunals held so far have hardly been kangaroo courts; they have included significant safeguards for defendants, and they have produced acquittals.

It’s also likely that handling an act of terror committed in 1998 under the Military Commissions Act of 2006 could have produced a rich crop of appeals.

Military commissions can deliver justice. What they haven’t always delivered, in isolated Guantanamo, is openness and a visible demonstration that American standards of due process are being respected.

If they are going to be the way America tries terrorists captured overseas, they have to prove that due process doesn’t stop at the nation’s borders.

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