Convicted terrorist Ahmed Khalfan Ghailani
Ahmed Khalfan Ghailani, the first Guantanamo Bay detainee to be tried in a U.S. civilian court, was sentenced to life in prison last month for his role in the 1998 bombings of two U.S. embassies in East Africa. Though government lawyers successfully prosecuted Ghailani, the landmark case nevertheless highlights the difficulty of trying “high-value” terrorists.
Ghailani, 36, was convicted on Nov. 17, 2010, of a single count of conspiracy to destroy government buildings and property. He was acquitted of more than 280 charges of murder and conspiracy. Although U.S. District Judge Lewis A. Kaplan sentenced him to life without parole — the maximum sentence he would have received were he found guilty on all accounts — trying him in an open civilian courtroom afforded the possibility he could be acquitted of all charges and released from custody entirely.
To ensure this does not happen, defendants are only brought to trial when the chance for complete acquittal is marginal, or when the right to detain the suspect following acquittal is reserved. This calls into question the effectiveness of the court. If we only try so-called high-value terrorists in the civilian court system when we know their full acquittal is unlikely, or when we maintain the right to detain them if they are acquitted on all accounts anyway, what have we really gained?
The Ghailani trial also raises concerns as to what is appropriate for those terrorists we are not confident we can convict. Classified material cannot easily be brought into evidence in an open civilian courtroom given the sensitive nature of the information. As such, should we try these suspects in an open civilian criminal courtroom anyway and hope the evidence we can present is sufficient for a conviction? Doing so risks a not-guilty verdict and the possibility for recidivism. An alternative, then, is to try them before a military commission. While this option allows for the presentation of more evidence because it is a closed courtroom, conducting a military tribunal would raise specific unresolved issues regarding legal jurisdiction and the classification of these individuals as military combatants.
A valid lawfare argument can be made for each course of action, but unfortunately, at this time there is no one perfect solution. Instead, this debate emphasizes just how difficult it is to adequately discourage terrorism while fostering an environment that does not infringe upon the civil liberties that make this country unique. While experts and decision-makers continue to discuss this complex issue, Ahmed Ghailani’s case serves as a reminder that the struggle for justice is not easily winnable.
Jessica Phillips is a first year graduate student at Rice University pursuing a master’s degree in liberal studies. She is an intern for the Baker Institute Homeland Security and Terrorism Program working under the supervision of fellow Joan Neuhaus Schaan.