United States v. Ghaliani

Ahmed Ghaliani was accused of being a significant participant in the August 7, 1998 bombings of the United States embassy complexes in Kenya and Tanzania. At least 223 people were killed and over 4,000 were wounded in nearly-simultaneous suicide bombings of the two embassies in Dar es Salaam and Nairobi.

After a substantial political controversy, Ghaliani was tried in a regular United States District Court in the Southern District of New York. A critical witness against Ghaliani and a substantial confession were excluded from the trial because the judge found that the evidence had been obtained through unconstitutional interrogation techniques (commonly called "torture"). The result was that Ghaliani was acquitted of 284 of the 285 counts against him, being convicted of only a single count of conspiracy.

Let's not lose perspective on the real-world result. Ghaliani hasn't been sentenced yet, but the minimum sentence that can be imposed on him is 20 years and the judge can find that good cause exists for a life sentence. There is no parole in the Federal penal system -- if you're sentenced to serve 20 years, you're going to serve 20 years. This is not a man who is going to be walking free, planning additional crimes, or hanging around with his terrorist buddies again any time soon. That's the result from a single count.

Some have argued, and with some weight to the argument, that torture is in fact useful to extract information from prisoners. But let's distinguish "information," which can be useful and used for gathering additional "information" and possibly motivating intelligence or military operations, from "evidence," which can be used in a court. Information which is obtained wrongfully cannot be used as evidence.

It needs to be underlined that the same exclusion of evidence would have applied in a military tribunal. Substantial, educated, and mature discussion of the issue can be found at the excellent blog Lawfare, which has been having something of a Ghaliani-fest since the verdict was returned. It also bears noting that the conviction's having been obtained in a civilian court makes the conviction much easier to defend on appeal. What it really comes down to is not in what forum Ghaliani should have been tried but whether he should have been tried at all or simply held without trial indefinitely.

While I can see the attraction to indefinite detention, our legal system cannot tolerate such a thing forever. Someone who is in the power of the government at some point transforms from being a "detainee" to being a "prisoner" and becomes entitled to some kind of legal process, an opportunity to know why he is being held, and to present evidence and argument in a meaningful bid for freedom. We do this not because we lack concern about guys like Ghaliani. We do this because it is the only way for us to act consistent with our own morals and ideals, it is fundamental to our system of government, it is at the still-beating heart of why there is such a country as the United States of America in the first place. We must not fear truth, and truth is, hopefully, what trials are all about.

What bothers me about the verdict here is the question of "what if he had been acquitted of everything," because then we would have to make a very hard decision. If Ghaliani is really as dangerous as the government tells us he is, he cannot be allowed to go free. But if he is acquitted of any crime, then we have no legally valid option but to let him go free. And the fact that the Administration announced before the trials started that there was no chance at all that Ghaliani would be allowed to breathe free air, this makes the trial appear to be a show trial. I'd rather that they simply skipped the trials altogether than have the trials not be meaningful. If Ghaliani had been acquitted of everything, he should have been set free.

The big problem here, and I don't claim to have any easy, pat solutions to it, is that so much evidence against so many of these Really Bad Guys is tainted from being obtained through torture. So it could very well be the case that most of the really good evidence we've got against, say, Khalid Sheik Mohammed will be excluded from any court. So we return to the question of whether we should have trials at all.

There is insistence in some quarters to treat terrorism prisoners, and all anti-terrorism activities, as military in nature. If we were talking only about protecting ships in foreign ports, fighting bad guys in the mountains of Afghanistan, and shooting missiles at camps, I could see that. But we're also told that there are dozens of terrorist training camps within the United States, and we know that U.S. citizens are involved in terrorism activities of some kind. There is intelligence that must be gathered within our own borders and from our own citizens. Some interaction with the criminal justice system is therefore inevitable.

It's very, very tempting to say, "Keep them in Guantanamo and throw away the damned key already." But here's what I can't get past: if we really don't have any good evidence to offer against someone we're keeping under lock and key, we shouldn't be keeping that person under lock and key. Trials are where that kind of evidence is tested. We fought the Revolution for that.

Trials are a risk for the government. But at the end of the day, our choices are to betray our own principles or take the risk. If we succeed, the problem of what to do with these guys really does go away -- they go into the penal system and that is that. Let us hope that we have sufficient admissible evidence for the rest of the prisoners with whom who we eventually have to do something.