Republicans Collectively Freak Out About The Ghailani Verdict

November 18, 2010 5:48 pm ET

In the wake of a civilian court verdict convicting suspected terrorist Ahmed Khalfan Ghailani of only one of the over 280 charges brought against him, Republicans had a field day decrying the Obama administration's decision to try suspected terrorists before civilian courts instead of military tribunals. The denunciations ranged anywhere from declaring such a decision "insanity" to suggesting that the Obama administration "nearly allowed this terrorist to get away." In reality, there is no evidence that trying Ghailani in a military court would have produced a more severe verdict. Indeed, whereas terrorists tried in military commissions have served relatively short prison sentences, those tried in criminal courts have faced significantly longer prison terms.

"Obama Administration Nearly Lets Terrorist Go Free": Republicans Deride Verdict In Ghailani Trial

Sen. Jim Inhofe (R-OK): "Obama Administration Nearly Lets Terrorist Go Free." From a November 18 press release under the headline "Obama Administration Nearly Lets Terrorist Go Free":

"While I am thankful that our civilian court system was able to convict Ghailani on one of the 285 charges brought against him, the fact remains that the Obama Administration's rejection of our military tribunal system nearly allowed this terrorist to get away," Inhofe said.  "The results of this trial highlight the truth that the prosecution of terrorists detainees belongs in a military tribunal not because it ensures a particular result, but because it is the best way to present classified information and present evidence that has been taken from the battle field.  Within the military tribunal system, terrorist do not need to have their Miranda Rights read to them when captured, and obtaining a warrant on the front lines of the war is not necessary."

"It has long been my concern that terrorists could more easily circumvent justice with President Obama and Attorney General Holder pushing for civilian trials.  Despite their assurances and empty promises of the civilian court system's ability to handle these cases, this trial clearly shows that the proper place to try terrorists is through the military tribunal system.  Make no mistake:  these are enemy combatants not common criminals." [Inhofe.Senate.gov, 11/18/10; emphasis added]

Rep. Dan Burton (R-IN): "We Sent A Message To Terrorists Around The World That, Hey, You Can Kill Americans, But You'll Get Off Pretty Light If You Get Into An American Courtroom." From a November 18 statement on the floor of the House of Representatives:

We sent a message to terrorists around the world that, hey, you can kill Americans but you'll get off pretty light if you get into an American courtroom. Isn't that tragic? It's tragic. They're cutting off heads of people. They're blowing up embassies. They're blowing up ships. They flew a plane into the World Trade Center on 9/11. And the master mind behind that is down at Guantanamo. Are we going to try him in a civil case in New York? That's what they want to do. And if they do that, are they going to let him off? He was the master mind behind 9/11 that killed over 3,000 people. I would just say if I was talking to the president - and I wish I could - I'd say Mr. President this is a travesty of justice and your justice department should be instructed to try these people in military tribunals. No more of this baloney. American lives are at stake and the security of America is at stake. [C-SPAN, 11/18/10; emphasis added]

Rep. Trent Franks (R-AZ): "Terrorists Now Have Incontrovertible Evidence That They Can Exploit The American Justice System." From a November 18 press release:

"Despite Attorney General Holder's promises that "these cases have to be won" and that "failure is not an option," yesterday's ruling will be remembered as one of the most blatant miscarriages of justice in the history of our federal criminal court system. I cannot imagine a greater affront to the families of the victims who have waited so long for justice on behalf of their loved ones, nor can I imagine a more dangerous signal that was sent to our enemies, than to see a man who had already admitted to the 1998 African Embassy bombings, and who continued to work as an Al Qaeda operative and even a Bin Laden bodyguard until as late as 2004, acquitted of more than 280 criminal charges due to procedural protections in the civil court that precluded critical evidence from being admitted.

The Obama Administration has now fundamentally characterized itself with the word "failure."  In this case, failure comes with the unspeakably high cost of the shock, pain, and grief to the families of the 224 innocent people who were murdered and the more than 4,000 people who were wounded in these horrific terrorist attacks, who were all just told by a federal court that the man who irrefutably helped create the bombs that maimed and slaughtered their innocent loved ones is not guilty of a single count of murder.

If this insane policy of appeasing terrorists and granting them American Constitutional rights to be tried as quasi American citizens continues, the cost of this failure will pale in comparison to the cost of the failure that will undoubtedly yet occur as a result of this ruling. Terrorists now have incontrovertible evidence that they can exploit the American justice system and they will use this knowledge to train new terrorist recruits and manipulate their cases if and when they are caught.

[...]

Unfortunately, the failure of the Ghailani verdict is just the beginning. In light of this disastrous ruling-- the obvious consequence of the Administration's own disastrous terror trial policy-- I call on Eric Holder to either repudiate the Administration's policy on terror trials, or resign immediately." [Franks.House.gov, 11/18/10; emphasis added]

Rep. Peter King (R-NY): Verdict Is "Tragic," Shows The "Insanity" Of Bringing These Cases To Civilian Court. From the November 18 edition of Fox News' America Live:

MARTHA MacCALLUM: You have said it was a tragic outcome. 

REP. PETER KING: It is, it's tragic because of the outcome itself, but, also tragic because we knew for at least the last month that this was bound to happen. Once the judge excluded the testimony of a witness who would have connected Ghailani to these horrible acts which would have brought about conviction, it became very very, difficult to convict him. And this is the real danger, the real insanity, if you will, of bringing these cases in a civilian court. If this had been in a military commission, that evidence would have been allowed, and, I'm confident that Ghailani would have been convicted. And the president said, and the attorney general, the reason they wanted to have these cases in civilian court was to show that these courts can get the job done and let the world see what was going to happen. Well what the world has seen, is that Ghailani was acquitted on 284 counts, and including over 200 charges of murder.

MacCALLUM: Well, you know, I heard from David Lee Miller, who has been covering the case for us, that the prosecution basically got up from the table, walked out, and were completely silent. They had to have been struck by this. It was also reported that Ghailani smiled at times when the not guilty was read over and over and over and over again for all of those more than 200 murders in these embassy bombings. Nobody can feel too good about that this morning. But the other side, Congressman King, is probably going to say things along these lines: that he got 20 years, that he could get life. A 20 years to life sentence and because of the way the case was handled, there are fewer opportunities for him to appeal, because, you know, they were stringent about not allowing that testimony.

KING: Well there was never a problem of keeping him in jail. We could have detained him indefinitely if we had wanted to because there's a war with al Qaeda and he is an enemy combatant in that war. The purpose of this trial, as I understand it from the president, was to show the world that we would convict these people and find them guilty of the heinous crimes. Instead, the world has seen an American jury acquit him of over 200 counts of murder, 284 counts altogether, and it really sets the tone as to what can happen. It's really, you know, the prelude to what would happen if we had Khalid Sheikh Mohammed and the other 9/11 defendants on trial in a civilian court in New York. 

[...]

KING: And even though it was a failure, I don't blame the prosecutors in the case. They did the very best they could under the circumstances, but under the rules of that - of the law in that case, it was very -- almost impossible to win it. And when Eric Holder said there was a delay years for 8 years, the fact is several years ago Khalid Sheikh Mohammed wanted to plead guilty before a commission. It would have be over and he would have received the death penalty. Much of the delay came from constant legal delays by liberal lawyers, then by the president and Eric Holder themselves, closing down the military commissions in Guantanamo, and now we have had a delay over a year, but not a word has come from the Attorney General, so delay is because of him. [America's Newsroom, 11/18/10; emphasis added]

Keep America Safe: Verdict "Signals Weakness In A Time Of War." From a Keep America Safe release signed by Liz Cheney, Debra Burlingame, and William Kristol: "Bad ideas have dangerous consequences. The Obama Administration recklessly insisted on a civilian trial for Ahmed Ghailani, and rolled the dice in a time of war. The Department of Justice says it's pleased by the verdict. Ask the families of the victims if they're pleased. And this result isn't just embarrassing. It's dangerous. It signals weakness in a time of war. The Ghailani trial was supposed to be a test case for future trials of 9/11 terrorists. We urge the president: End this reckless experiment. Reverse course. Use the military commissions at Guantanamo that Congress has authorized. And, above all-accept the fact that we are at war." [Keep America Safe, 11/18/10]

Former Ambassador John Bolton: Verdict Is A "Humiliation," Interpreting It As A Success "Sends A Terrible Signal Of American Weakness" To "Would-Be Terrorists." From a November 18 interview on Fox News' America Live:

MARTHA MacCALLUM: New reaction coming into Fox, coming from the White House moments ago on that verdict for terror suspect Ahmed Khalfan Ghailani. He was found guilty of conspiracy to destroy the embassies that were obliterated, but cleared on even more than 240 counts of murder. 224 people including 12 Americans were killed. Many, many more injured. The White House just saying quote: "Would it have been better optically if he were convicted of more counts? Sure. Would it have made any practical difference? No. Let's bring in John Bolton. Former U.S. Ambassador to the United Nations. Ambassador, first of all, your reaction to that White House comment?

BOLTON: Well, you know for the ongoing race for the most ignorant, most incompetent senior administration official, this fellow - or lady - has to have taken the lead. That is really an appalling comment by someone who theoretically, I suppose, is familiar with the circumstances here. This defendant was accused of mass murder and was convicted on only one conspiracy count and I think that reflects a fundamental failing in the administration policy of trying to ram these sorts of terrorist attacks into the traditional criminal justice system. And that kind of comment, I just think is beyond the pale.

MacCALLUM: Well and you have seen, over the last less than 24 hours since we've gotten this verdict, but, comments out there from a lot of folks on the left saying this proves the civilian trial works for this kind of cases. He was convicted. We can't guarantee this he's going to be guilty on all counts, this is still a success. Right or wrong?

BOLTON: Well, silly, worse than being wrong. The fact is there are two different paradigms here. One is the bank robber paradigm, the other is the war paradigm. This kind of terrorist attack against facilities of the United States, mass murders like the terrorist attacks of 9/11 are fundamentally acts of war. They are not like bank robberies, you can't fit them into a traditional criminal justice system. So the result, actually, for this particular defendant is that he will receive some as yet unknown system for the one count he was convicted on, but as the judge in the trial himself admitted, will be held indefinitely at Guantanamo because he is, in fact, a terrorist. I think it looks foolish for the administration to try and rationalize what is a clear litigation defeat in New York.

MacCALLUM: Well and speaking of litigation, he was on the hook to be tried for almost 300 criminal counts. He's convicted on one conspiracy charge, meaning on his appeal, it's only one charge that's standing between him and his freedom at this point. Do you have concerns about this through the appeals process?

BOLTON: Sure, absolutely. But I think the thing to stress is that it's not that a military commission would be better to try this guy than a civilian court as is that the administration is still trying to imagine the threat of international terrorism like it's a law enforcement problem when it's not. It is fundamentally more analogous to war and the laws of war should apply, so that in the case of this individual whether we tried him or not we could keep him at Gitmo or any other facility that we established for as long as the war on terrorism existed and that's fundamentally what we should have done. If they interpret this kind of humiliation from this jury in New York as vindication for further criminal justice system trials of terrorist defendants, it sends a terrible signal of American weakness throughout the world to all the would-be terrorists out there. [America Live, 11/18/10; emphasis added]

Sen. Lindsey Graham (R-SC): "We Put Our Nation At Risk By Criminalizing The War." From a statement reported by The Hill: "'While I respect the judgment of the court, I'm deeply disappointed in the verdict,' said Sen. Lindsey Graham (R-S.C.). 'We are at war with Al Qaeda.  Members of the organization, and their associates, should be treated as warriors, not common criminals.  We put our nation at risk by criminalizing the war.'" [The Hill, 11/18/10]

Sen. Orrin Hatch (R-UT): Verdict "Demonstrates The Dangers Of Forcing Terrorism Trials Into Civilian Courts." According to a November 18 press release:

"The Obama Administration rolled the dice in a time of war by insisting on a civilian trial for Ahmed Ghailani for conspiracy and murder in the 1998 terrorist bombings of the U.S. embassies in Kenya and Tanzania.

"Yesterday's verdict in New York demonstrates the dangers of forcing terrorism trials into civilian courts. Last November, Attorney General Holder told the Senate Judiciary Committee that failure is not an option when it comes to trying terrorists in federal criminal court. The reality is that of the 285 charges against him, Ghailani was convicted on only one count, leaving open the very real possibility that this terrorist could be released.

"Federal criminal courts are not suited for terror trials. Military commissions are the most appropriate venue for these trials and are conducted in a manner that provide Constitutional protections to the defendant, while protecting classified information.

"It's time for the Administration to listen to the 9/11 families and the American people and change course by putting all terror trials through our military commission system." [Hatch.Senate.gov, 11/18/10]

Sen. Hatch Uses Ghailani Case To Advocate For Military Commission Trials, Claiming "You Don't Have To Put Up With A Jury That Might Not Be Paying Attention." From a November 18 interview on Fox News' Happening Now:

HATCH: Well if this case doesn't make our case that these cases should be tried in Guantanamo, I don't know what does. He had 280 counts against him and they only found him guilty on one, meaning he's only going to spend a certain amount of time in jail. This is a guy that literally, with all the evidence in the world, participated in killing a lot of people. And frankly it just shows the hazards of trying these cases in civilian courts in this country. Keep in mind he was not water boarded, he was not -- it will be ten times harder to try a case against Khalid Sheikh Mohammed in a civilian trial than it would be in a military commission trial. And I might add that constitutional protections are there in military commissions, it's just that you don't have to get into classified information - unnecessary classified information, you don't have to allow the same amount of discovery, you do not have to put up with a jury that might not be paying attention, or might just feel sorry for somebody. I mean you literally can try the case on the merits, on the facts, and then make decisions that basically will be in the best interests of our country. That's a perfect illustration of how out of the ordinary this Justice Department is. You know, I understand why they believe civilian trials are good, I mean that is a nice liberal point of view, but in these cases they're not good. In these cases it would be far better to have a military tribunal with all the constitutional protections that military tribunals are forced to comply with, and, uh -- but it's a much easier way of bringing the case, presenting the facts, establishing the case and of course bringing justice to these people who have been responsible for killing, you know, thousands of Americans. [Happening Now, 11/18/10; emphasis added]

Rep. Tom Rooney (R-FL): The "Decision To Give A Foreign Terrorist The Same Rights And Privileges As American Citizens Has Proven To Be Disastrous." From a November 18 press release:

"The Obama Administration's decision to give a foreign terrorist the same rights and privileges as American citizens has proven to be disastrous, and this verdict sets a terrible precedent.  Foreign terrorists absolutely do not deserve the same rights in a court of law as American citizens.  The constitutional and legal standards for evidence-gathering and prosecution in a civilian case are simply not adequate for the trial of an enemy combatant.

"As a former military prosecutor, I strongly believe that trying enemy combatants in military tribunals at Guantanamo Bay is the best approach.  These tribunals are fair, provide due process for the accused, but also protect critical intelligence officials and evidence.  I hope this verdict will convince President Obama to join us in a bipartisan manner to hold terrorists accountable, keep them out of the United States, and prevent them from rejoining the fight." [Rooney.House.gov, 11/18/10]

Rep. Buck McKeon (R-CA): "Verdict Is A Blow To The Administration's Failed Terrorist Detention And Prosecution Programs." From a November 17 press release:

"Today's verdict is a blow to the Administration's failed terrorist detention and prosecution programs, which are not guided by the law of armed conflict as they should be.  While the Administration continues to grasp at the hope that trying terrorists in civilian courts will improve our standing in the international community, Congress has already provided the Administration with a bipartisan system to try terrorists in military commissionsm [sic].  

"Early this week, I called on the Administration to work with members of the Armed Services Committee to craft a legislative framework for terrorist detention and prosecution that protects the homeland, respects the rule of law and upholds our high ideals.  Hopefully, the Ghailani verdict will encourage the Administration to work with us in a bipartisan manner to hold terrorists accountable for their crimes and keep them out of the United States." [McKeon.House.gov, 11/17/10]

Rep. Mike Pence (R-IN): Ghailani Case Shows "What's Wrong With The Administration's Disastrous Policy Of Moving Terrorists To American Soil For Trial." From a November 18 press release:

"The case of Ahmed Khalfan Ghailani has given Americans a stark look at what's wrong with the administration's disastrous policy of moving terrorists to American soil for trial in civilian courts. Ghailani faced 285 charges, including murder, for his part in two deadly truck bombings outside U.S. embassies in Africa. A civilian jury acquitted Ghailani of all but a lesser charge of conspiracy after the judge refused to allow the testimony of a key prosecution witness.

"Closing the detention facility at Guantanamo and moving dangerous terrorists to U.S. soil does not make our country safer. During the lame duck session, Speaker Pelosi must allow a vote on the Keep Terrorists Out of America Act, legislation that would allow states to refuse terrorists who are being transferred by the Obama Administration. Terror detainees should be held at Guantanamo Bay for military tribunals, but if the administration will not rescind its dangerous policy of moving them to U.S. soil, then Congress must act to protect the American people." [MikePence.House.gov, 11/18/10]

RNC: "Obama DOJ's Liberal Experiment Of Trying Foreign Terrorists In U.S. Civilian Courts An Utter Failure." From the RNC's Twitter feed:


RNCGhailani

[Twitter, 11/18/10]


Military Tribunal Would Not Have Necessarily Produced A Different Verdict

CAP: "Criminal Courts Hand Out Tougher Sentences Than Military Commissions." According to the Center for American Progress:

The facts are clear: Criminal courts are a far tougher and more reliable forum for prosecuting terrorists than military commissions.

[...]

The sample size of military commissions' sentences is very small, but there are some analogous cases in the criminal justice system to compare the length of sentences in the two forums. The allegations against David Hicks in a military trial were quite similar to those leveled against John Walker Lindh—the so-called American Taliban—in a criminal court, while comparable charges to the material support for terrorism conviction for Salim Hadman can also be found in criminal courts.

Hicks pleaded guilty to the charge of material support for terrorism with the underlying allegations that he trained at an Al Qaeda camp in Afghanistan and that he was an armed participant in numerous engagements with American and Northern Alliance forces. Lindh pleaded guilty to serving in the Taliban army and carrying weapons. Hicks received a nine-month sentence while Lindh got 20 years. Even if all of the time Hicks served prior to his plea bargain is counted, his total time in custody was only six years, less than one-third of the sentence Lindh received.

Hamdan was convicted of providing material support for terrorism for being Osama bin Laden's chauffer. In 2006, Ali Asad Chandia was convicted in a criminal court of material support for terrorism for driving a member of Pakistani extremist group Lashkar-e-Taibi from Washington National Airport and helping him ship packages containing paintball equipment back to Pakistan. Hamdan received a five-month sentence while Chandia got 15 years. Even if all of the time Hamdan served prior to his conviction in a military commission is counted, his total time in custody would be only eight years.

At most, Osama bin Laden's driver got a little more than half the sentence from a military commission that a criminal court doled out to someone for driving a low-level Pakistani extremist. [Center for American Progress, Criminal Courts Are Tougher on Terrorists than Military Detention, 1/20/10

Fox News' Herridge: "Two Terrorists Convicted At Guantanamo In The Last Six Months Got A Maximum Of Eight Years In Prison" While American Tried In Federal Court For Threatening South Park Creators "Is Looking At Up To 30 Years." From an exchange on the November 11 edition of Fox News' America's Newsroom:

HERRIDGE: [T]wo terrorists convicted at Guantanamo in the last six months got a maximum of eight years in prison. In one case, a detainee who confessed to helping Osama bin Laden escape from Tora Bora was given just two years under a plea agreement with the military. Now, the Canadian detainee Omar Khadr, who was picked up in Afghanistan at 15, admitted killing an American special-operations medic, Chris Speer. Khadr was sentenced to 40 years by a military jury, but it was only symbolic. Under a plea deal, Khadr will get eight years for the murder, and a former lawyer at Guantanamo believes Khadr could be out on the street much sooner.

EDWARD McMAHON (former Guantanamo lawyer): Well, the military jury sentenced him to 40 years in prison after he admitted to the murdering of an American soldier. And the secret deal, which was done without the jury knowing it, was that he would serve eight years, most of which would be in Canada, which essentially could mean he could be paroled next year.

HERRIDGE: Contrast Khadr's cases with that of American Zachary Chesser, who was prosecuted this year in a Virginia federal court. Chesser pleaded guilty to threatening the creators of the cartoon South Park because of its depiction of the prophet Mohammed. Chesser is looking at up to 30 years for the threats and supporting a Somali Al Qaeda group when he is sentenced in about a month's time. So there's the contrast, Martha -- 30 years, potentially, for an American, and just eight for a Canadian who killed an American soldier. [America's Newsroom, 11/11/10]

Colin Powell: Of Three People Tried In Military Court In Eight Years, Two "Served Relatively Short Sentences And Are Free" And "One Guy Is In Jail." From the February 21 edition of CBS' Face the Nation:

POWELL: The issue about sending people to military commissions, we're not using military commissions like we should. Any time you lock somebody up or you catch a terrorist, let's give them the military commission. In eight years, the military commissions have put three people on trial. Two of them served relatively short sentences and are free. One guy is in jail.

Meanwhile the federal courts, our Article III regular legal court system has put dozens of terrorists in jail. And they're fully capable of doing it. So the suggestion that somehow a military commission is the way to go isn't born out by the history of the military commission.

I think a lot of people think just give them to the military and the military will hammer them. Well, guess what? Officers in the military are obliged to follow the Constitution. Military lawyers are obliged under their oath to give the best possible defense to the defendant no more whether he's a terrorist or not. And so you didn't get out of the military commissions what a lot of people thought at the beginning you would get and a lot of us did not think it was a good idea in the beginning. [Face the Nation, 2/21/10; accessed via Nexis, emphasis added]

Political Commentators Have Touted The Verdict As Proof The American Justice System Works And A "Victory For The Rule Of Law"

Serwer: Verdict In Ghailani Case A "Victory For The Rule Of Law." In a November 18 post on the Washington Post's Plum Line blog, the American Prospect's Adam Serwer wrote:

The verdict yesterday in the case of former Gitmo detainee Ahmed Ghailani, who stood accused of helping facilitate the 1998 bombings of the U.S. embassies in Kenya and Tanzania, was a victory for the rule of law. Conservatives arguing that the trial was a failure because Ghaliani was acquitted on most of the charges are missing the point -- the integrity of American justice is more important than any single conviction, and, as it stands, Ghailani will very likely spend the rest of his life in prison for his crimes.

[...]

So here's the reality: Ghailani's trial took a mere month, at the fraction of the cost of flying translators, jurors, lawyers and reporters back and forth from Guantanamo. He will likely spend the rest of his life in prison. There were no opportunities to use the court as a "platform" to preach terrorism, and no security threats that disrupted the lives of New Yorkers. Opponents of the use of civilian trials often argue that civilian courts can't "handle" terrorists. They literally just did. They've done it hundreds of times before.

If the verdict does not ultimately reflect the level of responsibility Ghailani holds in the deaths of more than 224 people, the failure to secure justice on their behalf lies squarely on the shoulders of those in the Bush administration who sanctioned Ghailani's torture in the first place. That shame is fully theirs to bear.

In any just system, the government runs the risk of acquittal. But as Thomas Jefferson wrote, trial by jury is "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." It is perhaps fitting that those who supported using torture techniques borrowed from Chinese communists would demand a show trial where the outcome is preordained. [Plum Line, 11/18/10]

Greenwald: Ghailani Verdict Is Proof That The American Justice System Works. In a November 18 Salon.com op-ed, Glenn Greenwald wrote:

But the most important point here is that one either believes in the American system of justice or one does not.  When a reviled defendant is acquitted in court, and torture-obtained evidence is excluded, that isn't proof that the justice system is broken; it's proof that it works.  A "justice system" which guarantees convictions -- or which allows the Government to rely on evidence extracted from torture -- isn't a justice system at all, by definition. [Salon.com, 11/18/10]

New Yorker's Amy Davidson: "Our Legal System Is Not A Machine For Producing The Maximum Number Of Convictions, Regardless Of The Law." The New Yorker's Amy Davidson wrote on her Close Read blog:

The Times noted that the years during which we shuffled Ghailani around meant that "the prosecution faced significant legal hurdles getting his case to trial and then winning the conviction." Let's be clear: if time in the extra-judicial limbo of black sites, and the torture that caused some evidence to be excluded, makes prosecutors' jobs harder, the problem is with the black sites and the torture, and not with the civilian trials that might eventually not work out quite the way everyone likes. It's a point that bears some repeating. Our legal system is not a machine for producing the maximum number of convictions, regardless of the law. Jurors are watching the government, too, as well they should. Ghailani today could be anyone tomorrow. [Close Read, 11/18/10; emphasis added]

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