“By prosecuting Ahmed Ghailani in federal court,” Attorney General Eric Holder said in a May 21, 2009, statement, “we will ensure that he finally answers for his alleged role in the bombing of our embassies in Tanzania and Kenya.” “This administration,” Holder continued, “is committed to keeping the American people safe and upholding the rule of law, and by closing Guantánamo and bringing terrorists housed there to justice we will make our nation stronger and safer.”
On November 17, 2010, however, Ahmed Ghailani was acquitted of more than 280 charges, including one count of murder for each of the 224 people killed by al Qaeda in the 1998 embassy bombings. Ghailani, in the end, was convicted of only one charge: conspiracy to blow up U.S. government buildings. The verdict was a stunning rebuke to Holder’s and President Obama’s plans to try Guantánamo detainees in U.S. federal courts.
Nonetheless, we’ve been told by the administration and its defenders that the Ghailani verdict proves the superiority of the criminal justice system. A Department of Justice spokesman said the administration was “pleased” with the verdict, because the one count on which Ghailani was convicted carries a sentence of at least 20 years in prison and possibly life. We should be content, the Obama administration claims, that Ghailani will not be set free any time soon.
That argument is a dodge. Ghailani was properly held at Guantánamo under the laws of war. The Obama administration did not need to try him in any venue. It is perfectly legal for the United States to hold Ghailani as an enemy combatant. In fact, the Obama administration itself has concluded that around 50 Guantánamo detainees will be held indefinitely without trial. America does not need a verdict from a New York jury—and a mixed verdict at that—to justify Ghailani’s continued detention.
The Obama administration, moreover, was never going to set Ghailani free—even if he was acquitted on all of the charges. Holder was asked about such a nightmare scenario by Senator Lindsey Graham during a Senate Judiciary Committee hearing on November 18, 2009. Graham’s questioning dealt primarily with 9/11 mastermind Khalid Sheikh Mohammed and his co-conspirators, whom the Obama administration has also said it wants to try in a U.S. federal court. But the senator’s line of questioning applies equally to Ghailani and other top al Qaeda operatives: “[Y]ou’re not suggesting if, by some one-in-a-million fluke, one of these defendants were acquitted or given a short sentence, that they would be released anywhere, are you?” Graham asked.
“No,” Holder responded. And the attorney general explained: “I certainly think that under the regime that we are contemplating, the potential for detaining people under the laws of war, we would retain that ability.”
In other words, regardless of the trial’s outcome, Ghailani wasn’t going to be set free. His career as an al Qaeda terrorist, and the threat that he posed to the security of the United States and the world, came to an end when he was captured in 2004.
So how, then, did Ghailani’s trial uphold the “rule of law” or make America “safer and stronger”?
It didn’t. If anything, the jury’s verdict failed to hold Ghailani truly accountable for the terror he unleashed. Ahmed Ghailani is obviously guilty of mass murder.
According to published reports, prosecutors introduced all of the following pieces of evidence at trial: Ghailani and another al Qaeda operative purchased the truck that was used in the suicide bombing in Tanzania. Ghailani purchased the oxygen and acetylene gas tanks that al Qaeda used to magnify the truck’s explosion. Ghailani gave one of the suicide bombers a cell phone that he used repeatedly in the hours before the attack. The FBI found a detonator, exactly like those used in the bombings, in Ghailani’s home. The FBI also found, according to CBS News, articles of clothing “tainted with TNT residue.” The government called multiple witnesses who placed Ghailani in the company of the al Qaeda cells that executed the attacks. Using an alias and fake passport, Ghailani flew from Tanzania to Karachi, Pakistan, the night before the embassy bombings. Several other al Qaeda operatives who were involved in the attacks accompanied Ghailani on the flight.
All of this was presented to the jurors. But they could still only reach a compromised verdict. And it is a completely unsatisfactory and illogical verdict at that.