When U.S. District Judge Lewis Kaplan sentenced African Embassy bombing conspirator Ahmed Ghailani to life in prison Tuesday he wasn't just making up for his pre-trial ruling that prevented federal prosecutors from telling jurors that Ghailani had confessed to his crimes. Judge Kaplan was also making good on an implicit promise the federal judiciary made to the executive branch in the immediate wake of the terror attacks on America: You play by our rules in these terror trials and we'll get your back when you need it.
I guess we all have our own definitions of "success" when it comes to criminal cases. In my view, it is a big "success" for the government when federal prosecutors are able to get a life sentence in a case where they were prevented from showing jurors their best and strongest evidence -- here, Ghailani's confession, which was deemed inadmissible because of the way in which it was obtained. To argue otherwise, as so many have over the past few months, is to eschew substance over form. No appeals court judge is going to overturn this result precisely because Judge Kaplan was fair to the defendant.
United States v. Ghailani wasn't pretty -- many big trials aren't -- but from the government's perspective it got the job done. The feds get their conviction and the maximum sentence set forth in the indictment. The courts kept their honor, at least so far, and the rule of law is still sound. And, lo and behold, New York City did not tumble into the sea because it hosted yet another terror trial. What can the "What's So Bad About Guantanamo Bay?" crowd possibly say today, now that yet another federal defendant (this one, the first from Gitmo) is off to the Supermax prison facility in Colorado for a likely life of solitary confinement and Special Administrative Measures?
I know what they will say. They will say that a case which generates 284 acquittals and one conviction is not a success. They will say that the government barely scraped by, hanging on by its skin with that lone conviction, which doesn't even make much sense in light of all of the acquittals that surrounded it. They will say that the acquittals reflect a weakness in our civilian justice system; that men like Ghailani do not deserve the kindnesses and niceties they receive when they stand trial in open court.
I see it completely the other way. In a case that was 12 years old when it was brought, about an event that happened in East Africa long before 9/11, with federal prosecutors hamstrung by Bush-era interrogation policies, I think the lone conviction says more, and more eloquently, than do the hundreds of acquittals. To me, the Ghailani trial teaches that terror defendants can get convicted and thrown in prison for life even when the cases against them are weakened mightily by circumstance. To me, the result here, right down to Judge Kaplan's firm sentence, reflects the great strengths of our civilian system. We gave Ghailani a fair trial -- fairer than many wanted -- and he's still gone forever. What is so wrong about that?
The "feds got lucky and may not be so lucky next time" argument just doesn't wash with me. Besides, the feds sure do seem to get "lucky" a lot in terror cases, don't they? They got lucky when jurors in Miami rushed back from deliberations to convict Jose Padilla, the once-upon-a-time dirty bomb suspect. They got lucky when Richard Reid, the shoe bomber, pleaded guilty and was sentenced to life in prison by Chief U.S. District Judge William Young in Boston. They got lucky when federal jurors in Alexandria, Virginia saw through Zacarias Moussaoui's ploy to martyr himself. The list goes on and on -- and I have covered almost all of it. Now, on the other hand, give me a name of a suspected terrorist since 9/11 who was tried and acquitted in federal court and is now walking around?
Judge Kaplan's sentence thus serves three important functions in the ongoing debate over what to do with the detainees remaining at Gitmo:
- It reminds lawmakers that federal judges are not their enemies, or even necessarily their adversaries, in the legal war on terrorism.
- It reassures everyone else that affording the detainees due process rights guarantees them no breaks.
- It re-establishes the role and prominence of our federal courts, still and always, as the most reliable way to dispatch justice to those accused of crimes.
Now, please, on the topic of successful federal criminal trials for terror suspects, let's bring Khalid Sheik Mohammed to trial in federal court in New York; let him, too, be convicted; and let's then be done with him once and for all. And let's start in that direction, finally, before September 11, 2011, the 10th anniversary of the biggest crime in American history.