A Little Conviction

November 18, 2010

A Little Conviction

Everyone's talking about the fallout from the first civilian trial of a Guantánamo detainee. In a rather awkward Washington Post headline (but at least you know they didn't want to accentuate the positive), the newspaper trumpets: "Terror Detainee Largely Acquitted." (The New York Times's isn't much clearer: "Detainee Acquitted on Most Counts," while the Wall Street Journal is looking on the sunny side: "Man Convicted in '98 Attacks.) It turns out that Ahmed Ghailani, a Tanzanian man captured in 2004 in Pakistan and charged with the 1998 U.S. embassy bombings in Kenya and Tanzania, was acquitted on 284 of 285 counts of consipracy and murder. But that one charge—conspiracy to damage or destroy U.S. property—could still land him in prison for life (and a minimum of twenty years).

And regardless of the headlines, the three newspapers agree that the result could damage the Obama administration's case for trying detainees in civilian court, despite the likelihood that, as Times correspondent Charles Savage reports, a military tribunal might have turned out the same. The case largely rested on a key witness whose testimony Judge Lewis Kaplan refused to allow into the courtroom, on the grounds that investigators found out about him only after using "abusive and coercive techniques" on Ghailani. Judge Lewis argued that the evidence wouldn't have past muster in a military tribunal, either.

But image is everything, and the idea that the Justice Department just barely got Ghailani (four others have already been convicted for the embassy plot) seems to be the dominant theme, no matter that, according to the Post, "human rights activists . . . said the verdict was a vindication of their approach." The papers cite many more conservative pundits and lawmakers who claim just the opposite and note that the families of those killed in the bombings were largely "disappointed."

Bloggers quickly drew their lines in the sand. Uncle Jimbo is all for trying "these scum in military tribunals with ALL evidence considered." Pamela Geller labels the outcome "another breathtaking Obama failure," and the American Spectator's John Tabin thinks it's "an embarrasment" for the administration that "opponents" of the civilian trials "are rightly seizing upon." Doug Powers gloats that "we've almost certainly seen the first and last of the idiotic civil trials" for detainees. Clarice Feldman calls the use of "criminal law" to try "people like this" ""preposterous silliness." Taylor Marsh points out that Ghailani would have been kept in detention indefinitely anyway had he been completely acquitted, whether in civilian or military court, which reminds Doug Mataconis more of "a Stalinist show trial" than justice." And Richard Fernandez sees the administration "left with two ruined roads."

But Spencer Ackerman writes (with a nod to Sarah Palin) that it "looks more like a vindication of civilian trials for terrorism than a refudiation," and Glenn Greenwald also sees the conviction as "proof that" the justice system "works." Daphne Eviatar thinks "critics have changed their tack" after the outcome and writes that the trial "passed . . . with flying colors" as a test case for trying other Guantánamo detainees in court. Andrew Sullivan lays the blame at the feet of George W. Bush and Dick Cheney for their "incoherent, short-sighted and barbaric choices in the first years of the war," meaning those "advanced interrogation techniques," as they were called.

And Steve Benen expects Republicans to pounce on the verdict, but also anticipates "their arguments to be entirely wrong." Adam Serwer thinks the military tribunals "have, by and large, been a disaster" anyway. Charli Carpenter finds irony in the fact that, now that there's no more coercion at Guantánamo, Ghailani "might have been better off" there than in "solitary confinement at a Supermax prison," which is what he's likely to get now.

Over at the New York Times Room for Debate, former prosecutor Andrew McCarthy says the outcome confirms his opposition to the civilian-court method, which turned out to be a "misadventure." UC Davis law professor Diane Marie Amann, on the other hand, gives the conviction a "proper" welcome. But her colleagues at Texas and George Washington, Robert Chesney and Orin Kerr, warn against seeing the implications of the trial in black and white, as the case "proves very little" either way.