Ghailani Verdict Complicates Bid to Close Gitmo

The first court conviction of a Guantanamo Bay detainee did little to inch President Barack Obama closer to shuttering the island prison, making it increasingly likely his campaign promise will remain unmet when his term expires.

Jurors in New York City on Wednesday convicted Ahmed Ghailani of conspiracy to blow up government buildings in the al Qaeda attacks on two U.S. embassies in 1998, but they acquitted him on more than 280 other charges. He is the only person transferred from Guantanamo Bay for trial since the U.S. began filling the military prison in Cuba eight years ago.

In some ways, the conviction was a vindication for an administration that believes the judicial system established by the Constitution has proved itself capable of handling terrorism cases.

Predictions of new terrorist attacks and huge police expenses surrounding the trial never materialized. Ghailani now faces 20 years to life in prison, longer than three of the four sentences handed down by military tribunals at Guantanamo Bay.

But CBS News national security consultant Juan Zarate, a former official in the Bush administration's anti-terror efforts, called this "a very mixed result."

The verdict "Demonstrates the complications trying to bring high-level al Qaeda figures from Guantanamo into the civil system," Zarate said on CBS' "The Early Show Thursday. "It also demonstrates the contradictions trying to hold somebody accountable in the criminal system, even if we are going to hold them in custody, regardless of the verdict. … I think this starts to close the debate on the use of civilian trials for high-level Guantanamo detainees and will certainly color the debate how to handle Khalid Sheikh Mohammed."

Zarate's comment highlights an irony that frustrates defenders of the rule of law. As the New York Times' Charlie Savage reported Thursday, "Critics of the Obama administration's strategy on detainees said the verdict proved that civilian courts could not be trusted to handle the prosecution of al Qaeda terrorists."

Cully Stimson, a senior legal fellow at the conservative Heritage Foundation, also sees military commissions, where the rules of evidence are looser and the rights of defendants more restricted, as a better venue for the alleged perpetrators of 9/11.

"They committed a war crime, and standard war crimes should be put to a military commission. Those people who say the Ghailani case is a test run are wishful thinking," Stimson said in an interview with CBS News.

Stimson, who was an assistant defense secretary for detainee affairs in the Bush administration, saw federal court as an appropriate venue only for Ghailani, because his case was entirely about the embassy bombings 12 years ago. There was no evidence about his activities since then or in the company of al Qaeda in Pakistan.

"Unlike all the other detainees at Guantanamo who may go through commissions or a federal trial, this case is all pre-9/11 activity," Stimson said.

But if a partial acquittal is proof that courts cannot be trusted, then the critics are proposing a system where the outcome - conviction on all counts and a harsh sentence - is predetermined and the trial is meaningless.

"The system worked here," Mason Clutter, the counsel of the Rule of Law Program at the Constitution Project, told the Times. "I don't think we judge success based on the number of convictions that were received. I think we judge success based on fair prosecutions consistent with the Constitution and the rule of law."

Clutter said that the result left Ghailani with little recourse for appeal and did not entail the extravagant cost or need to disclose classified information often cited by opponents of civilian trials.

Despite the acquittals, which included murder counts for each of the 224 people killed in the bombings, the Justice Department said it was pleased Ghailani faces up to life in prison and said it would seek that sentence.

But senior officials, speaking on condition of anonymity to discuss private discussions, conceded that the one-count conviction, combined with big electoral wins for Republicans this month, will make it harder to close the prison.

The administration had hoped for an overwhelming conviction to help ease congressional opposition to Obama's long-stymied plan for moving the detainees to U.S. soil. The administration must notify Congress before any transfer, and Republicans have said they would block such efforts.

"They couldn't come close to getting that done when the Democrats were in charge," said Rep. Peter King, a New York Republican who is expected to be the next chairman of the House Homeland Security Committee. "There's no way they're going to get it now that Republicans are in charge."

King called the verdict a "tragic wake-up call to the Obama Administration."

Additional Coverage

Photos: Ghailani Terror Trial
Ghailani Verdict: Where To Go from Here?
Ghailani Still Faces Stiff Penalty for Bombings
Gitmo Detainee Acquitted of Most Terror Charges
Defense Attorney: Al Qaeda Suspect is Innocent
Prosecutors: Ahmed Ghailani a Mass Murderer
Alleged Embassy Bomber Aimed to "Kill Americans"
Key Witness Barred from NYC Gitmo Detainee Trial

Administration officials believe there are only a handful of options for closing Guantanamo Bay:

• Prosecute the detainees. Some, like Ghailani, could face criminal trials. Others could face military commissions. Regardless, the administration wants those trials in the U.S., not at Guantanamo.

• Transfer some prisoners to other countries. Many already have been cleared for release. But Yemeni citizens make up the largest contingent, and the U.S. doesn't trust Yemen to monitor them if they are released. Two failed airline bombings originating in Yemen in the past year have made such release efforts even more difficult.

• Hold prisoners indefinitely. Top administration officials have said they don't like the idea but would consider it in some form, if the detainees were held inside the U.S. with some review by courts.

Ghailani's conviction does not make any of those options easier. When Obama announced, days after his election, that he would close Guantanamo within a year, he had hoped to move detainees to a refurbished old prison in Illinois.

Even if, somehow, that plan were to get resurrected early next year, much of 2011 would be spent renovating the facility. Actually transferring detainees would get pushed back to 2012, a presidential election year in which political differences are amplified and compromises are rare.

The Ghailani case also did little to resolve the question of what will happen to Khalid Sheikh Mohammed and the other masterminds of the Sept. 11, 2001, terrorists attacks.

The Justice Department had planned to prosecute those cases in civilian courts, but the administration reversed course amid political opposition. The move left a sour taste with some prosecutors, who felt the White House was letting political considerations influence the department, a criticism Democrats often lobbed at President George W. Bush.

Ghailani, like Mohammed, was held for years in a secret CIA prison overseas and received some of the harshest interrogation tactics. His trial was seen as a test of whether those actions would sink the case or whether prosecutors could salvage a conviction.

A federal judge prohibited prosecutors from calling a key witness in the Ghailani case, saying the witness had been identified while Ghailani was interrogated at the CIA prison.

Prosecutors could face the same challenge in the Sept. 11 trials, though many have been asking for years to plead guilty.

Sen. Lindsey Graham, a Republican who is seen as key to any deal to close Guantanamo, said late Wednesday that he was disappointed by the Ghailani verdict and said the government was endangering the nation "by criminalizing the war."

"We are at war with al Qaeda," Graham said. "Members of the organization and their associates should be treated as warriors, not common criminals.

[maistir]

Attorney General Holder, who insisted on arguing this case in civilian court instead of the military commissions created specifically for the Guantanamo detainees and others detained in the war on terror and who did not appeal the exclusion of a key prosecution witness from the Ghailani trial, ought to be hauled before Congress and made to answer for this enormous failure. He is the Alberto Gonzalez of this administration, and Pres. Obama should cut him loose.

[tsigili]

The US legal system is so corrupt, it protects the criminals at the expense of the citizens.

The fools in Washington should have known that! They are lawyers!