This post has been updated.
Since Ahmed Ghailani's conviction on only one of 285 criminal counts on Wednesday, the verdict has been pronounced by supporters of military commissions as the reason to stop trying any terror suspects in civilian courts.
In their op-ed in the Washington Post today, Brookings Institution fellow Benjamin Wittes and Harvard Law Professor Jack Goldsmith attack that reasoning, explaining that there's no reason to believe that Ghailani would have been convicted of all the charges against him in a military commission, either. Military justice rules ban tortured evidence as well. As in the New York trial, none of Ghailani's statements made to the CIA during what the government admits were coercive interrogations would have been admissible. Evidence derived from those statements would likely have been deemed inadmissible as well. Still, civilian prosecutors in a New York federal court managed to convict Ghailani for a crime imposes a mandatory minimum sentence of 20 years, and up to life in prison.
That isn't good enough for Wittes and Goldsmith. Although they acknowledge that military commissions "raise legal uncertainties" that could undermine future military commission verdicts, they argue that the better choice is simply not to try suspected terrorists at all. It's not clear why they think the civilian justice system is insufficient, other than that, because a conviction isn't guaranteed beforehand, there's always the possibility of the government being embarrassed by an acquittal.
That's hardly a sound reason to fail to bring to justice the perpetrators of egregious crimes against the United States -- whether the 1998 embassy bombings or the September 11, 2001 terrorist attacks. Could you imagine the government refusing to try any other mass murderer - say, Timothy McVeigh, whose bombing of the Oklahoma federal building killed 168 people - out of fear of acquittal?
Wittes and Goldsmith are correct that fighters in enemy forces can be held in military detention until the war is over. But that's a law of war aimed at foreign soldiers who have not committed crimes, but pose a future danger by virtue of their status as enemy soldiers. They are to be released once hostilities have ceased. It makes no sense in the context of admitted mass murderers who committed the most heinous terrorist strike in history on U.S. soil. The "war on terror" of which they are supposedly a part will, by definition, have no end.
To the extent that Goldsmith and Wittes are arguing merely for detaining suspected terrorists a few more years until the political tides turn, it's worth remembering that justice delayed is often justice denied.
The challenges the government faced in convicting Ghailani all stemmed from his having been held for a prolonged period in military and CIA custody. First, none of his statements could be used because, as the government admitted, the CIA had coerced them out of him. And much of the other evidence was compromised by the passage of time. At least one witness available in the earlier successful 1998 bombings trial in 2001 was now dead. And many of the witnesses brought in 12 years after the crime couldn't remember what they'd seen or said just after the bombing happened. On the witness stand, they appeared to be contradicting their earlier statements to the FBI. Ghailani's defense team effectively used that to question their credibility and raise doubts in the jurors' minds about what role Ghailani really played in the terrorist plot hatched more than a dozen years ago.
Sitting in the courtroom, I was constantly aware that the witnesses flown in from Tanzania and Kenya were being asked to remember such minute details as which of two people with the same name in a shop in Dar es Salaam in 1998 handed over the cash to purchase a truck or a gas tank (one of them was Ghailani), or what Ghailani told a friend once about his future travel plans, more than a decade later and often after dozens of interrogations by the FBI. I had to wonder if they were really testifying based on memory, or based on what the government might have suggested it wanted to hear. The jury may well have been wondering the same thing.
Prolonged indefinite detention, then, only complicates the government's ability to prove a terrorist's guilt later. It could mean the inability to ever hold serious criminals accountable at all. The victims of the 9/11 terror attacks - and the potential victims of all forms of terrorism -- deserve better than that.
Of course, those who favor indefinite military detention without trial may respond that "justice" isn't really their concern. The most important thing is U.S. security, and if we can incapacitate terrorists by locking them away for the rest of their lives without a trial to make sure we've got the right ones, well, that's the price we need to pay.
Setting aside any constitutional arguments with that, even if one believes that national security trumps all, the failure to provide a fair trial to suspected terrorists will ultimately do far more harm to U.S. national security than it will do good. Nothing enrages people more than hypocrisy, and the failure to adhere to the basic principles of fairness and due process that we press others to adopt around the world would only help al Qaeda win new and more vicious recruits. If the United States' experiment with torture techniques taught us anything, it's that our global reputation is fragile and that abusive detention and interrogation of suspects won't win the war on terrorism; on the contrary, it will fuel further attacks.
Now is not the time to resign ourselves to abandoning both law and principle in the name of national security. We already know that going down that path will lead to just the opposite.
Update: On Saturday, Berkeley law professor and former Bush administration lawyer John Yoo jumped on the indefinite detention bandwagon. In the Wall Street Journal, he follows in the footsteps of Wittes and Goldsmith to argue that any kind of trial for suspected terrorists is a risk not worth taking. All trials, whether civilian or military, "put unnecessary strain on military and intelligence operations devoted to rooting out the enemy, not collecting courtroom evidence." He argues that anyone declared an enemy belligerent by the United States should be held indefinitely without trial "until the end of hostilities," as international law allows.
But it's hard to see how the United States would ever declare its "war on terror" over. And if it did, should we let people who participated in mass murder and attacks on the United States, such as the 9/11 plotters, go free?
The argument for indefinite detention for suspects like Ghailani, accused of a crime committed 12 years ago, or for any of the Guantanamo detainees, who have been imprisoned there for up to eight years now, ultimately makes no sense. None of those detainees will have useful intelligence anymore. Al Qaeda a decade ago (or even just a couple of years ago) is not the same as al Qaeda and its various associated terrorist organizations now. As one of the government's lead witnesses in the Ghailani trial explained, the terror network adapts quickly to changing circumstances, and lets individual operatives only know what's necessary for the particular operations they're working on. Those operations will change as soon as al Qaeda learns of the operative's arrest.
I'm not surprised that Yoo, the author of the infamous "torture memos," isn't convinced by the argument that indefinite detention without trial in a war without end is unconscionable. But I am surprised that he's justifying the practice of for Guantanamo detainees on the grounds that they'll have actionable intelligence. Even Wittes and Goldsmith, the other ardent defenders of that alternative, are wise enough not to go there.