(Benjamin Wittes & Robert Chesney)
The Ghailani verdict is going to play badly–very badly–in the political arena. It won’t matter that he will receive a minimum of a 20-year prison sentence and could well spend the rest of his life behind bars. It won’t matter that the same evidentiary problems that impeded his prosecution in federal court would likely have arisen in a military commission as well. It won’t matter either that a conviction in a military commission would have been vulnerable to more lines of appellate attack than this one will be. The only thing that will matter in the political sphere will be that prosecutors won a conviction on only one of 285 criminal counts–that they came within a hair’s breath of losing the case entirely. The verdict has offered a vision of the nightmare scenario–acquittal in a terrorism case involving a high value detainee–and that vision will be enough to ramp up the already intense pressure not to try something like this again.
Unfortunately, all of these factors that won’t matter in the political sphere actually do matter to a reasonable consideration in light of the verdict of the Obama administration’s decision to pursue this case in federal court.
So let’s dwell on them for a moment.
First, Ghailani will spend at least 20 years in prison and very likely will receive a life sentence. If he receives the latter or close to it (and assuming his conviction survives appeal), this disposition will not be in practical terms a bad one. This was not a capital case, after all. So life without parole was the most Ghailani could possibly get. That is still on the table, and the minimum sentence involves his going to prison for a good long time–though not nearly enough time, to be sure. If prosecutors can win a sentence at the high end of the range, the near-defeat here will be entirely symbolic, not practical. In functional terms, the trial will have served its purpose: to incapacitate and punish a very dangerous guy for a very long time, while shifting the foundation for his detention onto largely unassailable grounds.
Second, it really is not clear that prosecutors would have fared better in a military commission. There is a fairly pervasive myth that military commissions represent the tough option, while federal courts represent the soft, wussy option. You know the trope: Military commissions represent a war mentality (tough, manly, conservative), while federal courts represent a pre-9/11 law enforcement mentality (weak, emasculated, liberal). The gross underperformance of the military commissions over many years has not shaken the trope, nor has their quiet development towards greater due process norms. There is no particular reason to think that the government would have gotten in before a commission the key witness that the court in New York excluded. The simple reality is that one cost of interrogating Ghailani in the CIA’s high-value program over a long period of time is to make any subsequent trial difficult.
Third, there’s a lot of reason to think that the still-very-uncertain rules of the road in military commissions would have caused additional headaches. For one thing, the core conspiracy charges in this case would have been at least a matter of concern in military commissions; three sitting justices are on record saying they do not believe conspiracy is a charge triable in a military commission.
Fourth, one argument Ghailani will not have on appeal is that there is something wrong with the U.S. District Court for the Southern District of New York. Members of Congress might think there is, mind you, but from a judicial point of view, the tribunal is at this point pretty well-established. By contrast, a conviction in a military commission would necessarily face attack–both in court and in the public and international arenas–over the nature of the tribunal itself.
In other words, it’s very easy to tally the costs of a case like this, to fail to tally the gains, and to compare it only to a fantastical assertion of the alternative and then to pronounce it a “miscarriage of justice” or to promise hearings–as does GOP Rep. Peter King–on “the absolute insanity of the Obama Administration’s decision to try al-Qaeda terrorists in civilian courts.” But it’s not serious. The reality is more complicated. Trial in federal court didn’t work out the way the Obama administration wanted, but it wasn’t a disaster–and we can’t honestly say it worked out worse than the military commission alternative would likely have done.