“What I told the prosecutors and what I will tell you and what I spoke to them about is that failure is not an option. Failure is not an option. These are cases that have to be won. I don’t expect that we will have a contrary result.” — Attorney General Eric Holder, November 2009, seemingly guaranteeing guilty verdicts for terrorists in civilian courts.
Ahmed Khalfan Ghailani: Ahmed Khalfan Ghailani, a 36-year old native of Tanzania and former Islamic cleric, is an Al Qaeda terrorist who participated in the 1998 U.S. embassy bombings in Kenya and Tanzania. The bombings killed 224 people (12 Americans) and injured more than 4,000 others. Following the bombings, Ghailani became an icon of Islamist Jihad. He traveled to al Qaeda training camps in Afghanistan and consorted with fellow terrorists, including some of the 9/11 conspirators. At one point, Ghailani served as a bodyguard for Osama bin Laden. In October 2001, the FBI listed Ghalaini on its first FBI’s Most Wanted Terrorists List Ghailani was captured and detained by U.S. and Pakistani forces in 2004 and transferred to Guantanamo Bay in September 2006. The U.S. government then proceeded with the prosecution of Ghailani in a military commission at Guantanamo, with a trial set to begin in late 2009.
Obama Administration Action: The Obama administration, in one of its first acts, halted preparations to try Ghailani before military commission. Instead, The Obama administration made Ghailani its test case to prove that civilian criminal courts are as effective as military commissions for wartime enemy combatants. The decision came despite the fact that military commissions have been used competently throughout American history and were approved by a bipartisan basis in Congress in 2006 and 2009 for trying al Qaeda terrorists. Ghailani faced 285 charges, including numerous counts of murder, before a federal civilian court in the Southern District of New York.
Predictably, however, the judge excluded critical testimony from a government witness who admitted selling the explosives to Ghailani. The federal civilian court judge excluded testimony from a crucial witness even though Ghailani named that witness in a statement provided to the FBI in 2007—while he was represented by counsel. Lacking that crucial testimony, on November 17, 2010, the jury found Ghailani guilty of one count of conspiracy to damage U.S. property and acquitted him of 284 other charges. Ghailani now faces 20 years in prison but will not be served justice for the murders he caused.
Kirk Lippold, former commander of the USS Cole, summed up the trial’s result by saying, “One of 285 counts is not exactly a record for a prosecution team to be proud of…This case sends a clear and unmistakable signal about using civilian courts: It didn’t work.”
The Problem with Trying Terrorists as Civilians: The Obama administration misguidedly favored civilian courts despite Congress’ bipartisan authorization of military commissions for terrorism trials in 2006 and 2009. Moreover, their position ignores evidentiary pitfalls of trying military prisoners as civilians. In civilian courts, the danger exists that sensitive information or sources may be disclosed and reliable evidence may be excluded. Additionally, treating terrorist attacks as simple criminal matters rather than acts of war hinders U.S. efforts to fight terrorism and sends the wrong signal to the nation’s enemies abroad. Finally, trials in the U.S. create safety risks in heavily populated cities and require enormous resources for security.
Where Do We Go From Here? In light of the debacle of the Ghailani verdict, Homeland Security Committee Ranking Member Peter King (R-NY) concluded, “This tragic verdict demonstrates the absolute insanity of the Obama Administration’s decision to try al-Qaeda terrorists in civilian courts… This is a tragic wake-up call to the Obama Administration to immediately abandon its ill-advised plan to try Guantanamo terrorists like the admitted 9/11 mastermind Khalid Sheik Mohammed in federal civilian courts. We must treat them as wartime enemies and try them in military commissions at Guantanamo.”
The primary responsibility of the federal government is to protect the citizenry. The case of Ghailani illustrates everything wrong with the administration’s dangerous policy of moving terrorists to American soil for trial in civilian courts. Closing the detention facility at Guantanamo Bay and moving terrorists to the U.S. does not make America safer. Terrorists should be held at Guantanamo Bay for military tribunals, but if the administration will not rescind its policy of moving them to U.S. soil, then Congress must act to protect the American people. Congress should immediately pass the “Keep Terrorists Out of America Act” to help ensure that terrorists meet effective justice and Americans are kept safe at home and abroad.