The Ahmed Ghailani Verdict and Gitmo


A jury in Manhattan acquitted Ahmed Ghailani, accused of complicity in the 1998 embassy bombings in Africa, of 284 charges (including all counts of murder), convicting him only on a charge of conspiracy to destroy government buildings and property. The decision to prosecute Gitmo prisoners in American courts, says the AP, "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."

Former Bush administration lawyer and Harvard professor Jack Goldsmith, who famously broke with the administration over its broad interpretation of executive power (and angered his former comrades by writing a book attacking the Bush administration's legal policies, appearing on Bill Moyers, writing in The New Republic that "Barack Obama is waging a more effective war on terror than George W. Bush," "resist[ed] the culture of torture," etc.), thought the verdict "highlight[ed] the attraction of military detention without trial." In a 2008 Slate column, Goldsmith called for closing Gitmo—and presciently argued that the next president, regardless of party affiliation, would retain much of Bush's terrorism policy—and then, also in Slate, offered a "blueprint" for shuttering the facility. With all of this in mind, I was slightly surprised by his post-verdict blog post, highlighted by New York Times national security correspondent Charlie Savage:

I agree with (Benjamin Wittes and Robert Chesney) that the disappointing Ghailani verdict does not imply that the prosecution should have been brought in a military commission. As they argue, most if not all of the challenges of Ghailani's trial would have been replicated in a commission, and a verdict in a commission would have been harder to defend on appeal.  I also agree that it is wrong to view commissions as the muscular trial option and civilian trials as the weak trial option.  The truth, if anything, is the opposite.

But while the Ghailani verdict does not argue for commissions, it does, I think, highlight the attraction of military detention without trial.  Imagine, as now seems quite possible, that Ghailani had been acquitted.  The administration would have faced the terrible choice between releasing him or (as both the Attorney General and Judge Kaplan have said is possible) continuing to hold him in military detention indefinitely.  The first option is unsafe for the nation and suicidal politically.  The second option looks terrible in light of acquittal, and would harm the legitimacy of every subsequent terrorist trial.  The reason the first option is unsafe and the second option is available is that Ghailani helped conduct a major terrorist operation on behalf of a group with which we are at war.  Military detention was designed precisely to prevent such soldiers from returning to the battlefield.  It is a tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation.  And this morning it looks more appealing than ever.