Embassy Bombing: Terrorism going unpunished?
“Terrorism Going Unpunished” was the headline on Sean Hannity’s Web page back in November when Guantanamo detainee Ahmed Khalfan Ghailani was convicted of one count of conspiracy in the 1998 terrorist bombing of two U.S. embassies in Africa and acquitted of 284 counts. “Eric Holder needs to resign,” Hannity announced. “He said failure wasn’t an option but it certainly was here!” Newt Gingrich, Tim Pawlenty and others also called for Holder to resign following the verdict.
By the way, Ghailani was sentenced today to life in prison without parole.
As I noted in November, it was a mistake for major news organizations to highlight the acquittals instead of the conviction on one count, which in and of itself was serious enough to send the defendant to prison for life. “Terrorism Going Unpunished” just wasn’t going to happen, and it didn’t. Given the deadly consequences of the conspiracy Ghailani took part in, the life sentence was to be expected.
Given the deadly consequences of the conspiracy Ghailani took part in . . .
So you are surmising that Ghailani was sentenced/punished for crimes that he was found not guilty of?
Probably. But is it really honest justice to engage in such a-wink-and-a-nudge sentencing? Is it really honest justice to punish someone for something that a jury has said that you are not culpable for? Not really.
Now, in the overall scheme of things, from a cosmic justice standpoint, the sentence is deserved. But we do not deal in terms of cosmic justice in the criminal justice system. We follow the rule of law. And, speaking as an attorney with many years experience in criminal defense law, punishing a defendant for something that he was acquitted of is a gross violation of that rule of law (see, e.g. the Double Jeopardy and Due Process Clauses).
And I thought that following the rule of law was supposed to be an important component in having civilian trials, rather than military tribunals, where such crimes have historically been tried.
“House Judiciary Committee Chairman Lamar Smith (R-Tx.) called the case a ‘near disaster’ in that they ‘barely won a guilty verdict.’”
That quote, from the article about the verdict you linked to, Paul, reminds me of the episode of The Simpsons where Mr. Burns — returning from the Yale-Harvard game with his Yale pennant — says to Smithers, “I don’t know why Harvard even shows up. They barely even won this year!”
The Republican attempt to turn the success of the Ghailani trial — despite the significant obstacles presented by the Bush administration’s torture policy — into an advertisement for military tribunals (that is, an attack on whatever the Obama administration does) is pathetic. Pay no attention to any of the circumstances, or the outcome! Doesn’t it just seem like military trials would be better?
Adam Serwer at The American Prospect has been very good on this story. His latest is here. As he notes, the other conspirators were tried, in civilian court, back in 2001. One got the same conviction as Ghailani. All got life sentences. Nobody called it an embarrassment for the administration, because it wasn’t.
“So you are surmising that Ghailani was sentenced/punished for crimes that he was found not guilty of?”
I think Judge Kaplan would say that the life sentence is justified for the single count of conspiracy. According to the NY Times account, Judge Kaplan said that “Mr. Ghailani knew and intended that people would be killed as a result of his own actions and of the conspiracy that he joined,” and that this was “supported by the trial record alone.” In other words, the defendant deserved the maximum punishment because he aware of the possible consequences of the deadly conspiracy he entered.
But yes, in a sentencing hearing federal prosecutors can produce evidence of other crimes for which the defendant was not convicted.
When I was a child my father was on a jury that found an accomplice in a bank robbery guilty of murder. He had driven the get-away car of his partner who shot and killed a guard. I couldn’t understand how he could be guilty of murder if he didn’t shoot the guy. My father said that it was because he was a willing partner in the whole project, and, therefore, responsible for the parts of it.
This is another case involving proximate causality with some proximate causes which literally can’t be imagined — we can only think intellectually about them because they are non-physical realities. (When I say “unimaginable” I mean it literally.) In my father’s jury case the proximate causes of the murder included the driver’s choice to concur in the whole project and his choices to drive the car before and after the shooting.
It certainly overstated things to say he would go “unpunished,” but the underlying point is valid.
A central criticism of te AG’s approach has always been that the civilian trial system was in appropriate for such offenses because of their unpredictabilty – particularly regarding juries. Given the deadly nature of the attack and the facts on which the single conviction was based, a finding of guilt on only a count of conspiracy to destroy the building was illogical and inexplicable. This outcome proved the point. If it happened in this case, with overwhelming evidence, what about ones where the evidence is adequate but not as strong?
All this after Holder virtually, and entirely inappropriately, guarnateed convictions.
Ann
That’s the point. This guy was charged with murder, and with conspiracy to commit murder, and was not convicted for these crimes. His involvement was even greater than a getaway driver, and they still couldn’t convict.
How facile the partisans are who did not sit in court and hear testimony, sit in the jury room ,attend sentencing or read sentencin grepo=rts – but, then again, their orioginal thoughts are dictated by the like of hannity et al.
Bob,
Even the jurors have reported that the verdict was distorted by one of them who took an irrational approach to the evidence. While I might not have seen the evidence, I base my criticism on the opinions of those who did and not some “facile” partisanship. By selecting this forum, reliable (and demonstrably true) evidence was excluded, and a civilian jury was the decision maker. These things introduced complexities and risks that were completely unnecessary from a legal perspective. The administration was pandering to its base and trying to impress international critics whose own countries would not conduct a terrorist trial this way. It was a major bonehead decision.
What is facile is the claim now that since “everything worked out” this isn’t a problem. It’s a lot like Janet Napalitano’s nutty comment that the underwear bomber case was an example of security success because the plane wasn’t blown up.
Right, Sean, because obviously if he’d been convicted on every count, Charles Krauthammer et al. would be saying, “Well done, Eric Holder, you made the right call,” rather than “You see? He’s going to prison for life, and none of the terrible things we predicted actually played out, but we were still right all along.”
[...] dotCommonweal » Blog Archive » Embassy Bombing: Terrorism going … [...]
I would imagine Lawyer Bender and Sean will protest the sentences of Capone and OJ Simpson just as soon as I can research and post that the prosecutors were from the Democrat Party. I working on it.
Mollie,
Of course they wouldn’t. No one says that civilian trial will never result in an appropriate or that they will all be disasters, just that making this choice was courting disaster. It just turns out that this case happened to provide a good example of the problem. One of the reasons that Holder picked this defendant was because it presented a low risk. It was supposed to be a “slam dunk” on almost every count, and it didn’t turn out that way. If it had happened the way they intended, we wouldn’t be having a discussion today because the judge would have had almost no discretion. As it turned out, the judge had the discretion to give him a much lighter sentence, but he fortunately chose not to.
The complaint is that Holder decided this policy for reasons that had nothing to do with the security of the country, which should have been his central concern, and in doing so he took an unnecessary risk. What happened wasn’t even the most serious risk. I think Krauthammer et al. would put the risk of aquittal or a light sentence way down on the list behind, the security risk of the trial itself, providing a political platform for enemies of the country, and an outlet for important intelligence information. Some of these “terrible things” have actually played out in terrorist trials already.
Holder and the president’s reasons for taking this policy position were, in my opinion, unreasonable. The idea that we will “show” the rest of the world we have confidence in our legal system is dopey. The use of military or special tribunals for terrorists, pirates, and other international criminals has a longstanding and legitimate role. The commissions had already passed constitutional muster. The simple truth is that the Obama administration was more interested in impressing people who read MoveOn.org and the Huffington Post than they were in security.
Ed,
Am I protesting the sentence? How, where?
The complaint is that Holder decided this policy for reasons that had nothing to do with the security of the country, which should have been his central concern, and in doing so he took an unnecessary risk.
Yes, and the rebuttal is that this argument accusing Holder and the administration of being reckless and disingenuous is itself reckless and disingenuous. I know you will say otherwise, but I’m afraid it will take someone with a better track record to convince me that’s not true.
“Am I protesting the sentence? How, where?”
You’re protesting sending any case to juries because the juries might reach the wrong verdict.
In essence, you argue that the inherently defective jury system is OK for your run of the mill gangster and wrongfully arrested innocent bystander but incapable of handling terrorists.
Mollie,
The prosecuter and judge in the 1993 World Trade Center case, who know of which the speak, say that this kind of trial has serious security implications. In fact, the great weight of evidence indicates that Osama Bin Laden learned that he was a target of US intelligence from the defense in that case and was able to escape and remain sfae from capture because of it. How about them?
The mayor of NY said that security for terrorist trials will cost hundreds of millions, if not over a billion dollars. Is he reckless, disengenuous, or does he just want to waste money? Even Chuck Schumer opposes it if it’s in NYC. Why’s that?
I will grant you that the Obama admnistration believes the risk is worth taking, but even they recognize that there is some risk. I am saying that the so-called benefits for this decision are all political, and you shouldn’t take risks with people’s lives for such reasons.
Joe,
Yes, I am. And yes, the jury system is flawed and anyone who tells you otherwise is a fool.
Every type of system has flaws, strengths, risks and benefits. A risk of the jury system is that lay people may be more prone to make legal mistakes or be swayed by factors other than the law and facts – in some ways that’s a benefit as well – as compared to a judge or hearing officer or tribunal. Guess which system most of the rest of the world uses?
The gangster gets a jury because the constitution says so. The founders made that cost benefit analysis, and valued the benfits of a jury system. These guys aren’t entitled to that, we get to choose where and how to try them within the constraints of international law. The tribunals were already in place, already ruled on by our courts, in a safe and secure location with sensitivity and facilities to handle sensitive information and people who were trained to handle it.
What non-political benefit was gained by this decision? Do we really think this is earning the respect of the Muslim world? That Europeans will be impressed?
I recognize that people will disagree on the question of where to try cases like this. What I don’t accept is the way news of the verdict was spun in November. There is no excuse for what Sean Hannity, Charles Krauthammer and others said at the time.
Paul,
I agree it was spin and not accurate to say that the bomber went “unpunished.”
First, what specifically did Krauthammer say that was innacurate or exagerated? I think I read his column on the subject back then and I don’t recall anything problematic in it.
Second, the emphasis on the acquittals was because they demonstrated one of the risks engendered in the decision. Do you claim that the fact that this guy was aquitted on all of the most serious charges – charges which the evidence clearly supported even according to most of the jurors – isn’t troubling? The verdict was nonsensical. He was guilty of conspiring to blow up the building, but not of killing any of the hundreds of people inside it. Before the trial took place, people like Krauthammer were saying that one problem with trying terrorists in civilian courts was that the outcomes would be unpredictable. The bottom line is they were right and Holder was wrong when he guaranteed convictions.
Finally, if the Holder decision was a good one, don’t just attack those who disagree, explain why it was a good decision. All I see is that it isn’t as bad as the critics claim. Why is it more just and how does it protect the American people better than the alternative – claims that Holder made when he announced the decision.
Sean,
Rejecting jury trials wholesale is at least internally consistent but our founding fathers disagreed. They were not afraid to try terrorists before juries either. I’m with our founding fathers in rejecting goverment lynching and totalitarianism.
The security argument is similarly defective. The Rosenbergs were indicted before a grand jury and then tried and convicted before a jury.
As a matter of fact I do think the the Muslim world and Europeans would be impressed by jury trials
Joe,
You obviously aren’t following what I am saying.
I don’t “reject jury trials wholesale.” The jury system is an important feature of our system. But it’s not there because it renders “better” or more just results. our history is replete with examples of the flaws with it. Worked great if you were a white man accused of killing a black child in the pre-1970 South, but not because it was accurate or just. It is a feature of a participatory government for the benefit of the person being tried. It’s a personal right. In fact, it’s a waivable right – people choose to be tried by a judge all the time. The choice isn’t between a jury trial and totalitarianism. If it is, places like France, Spain, and Italy will be mighty surprised to find out they are dictatorships.
The Rosenbergs got a jury trial because they were entitled to one. The people we are talking about are international criminals, and they only get a jury trial if we choose to give it to them. Trial by jury isn’t a basic human right protected or even recognized in international law. I am saying the cost benefit doesn’t add up.
As far as security at the Rosenberg trial, they weren’t being tried a few blocks from a smoking hole that is the burial ground for 3000 people, and as to information security, let’s just say federal courts in 1951 had a far greater deference to things like national security than the current system does. In short, you are comparing apples to elephants. A better example is the 1993 WTC Bombing Trial – millions and millions for security, classified and other sensitive information leaked, one of the terrorist’s attorneys convicted of assisting her client in continuing to conduct terrorist activities from jail.
What evidence do you, or anyone, have for the idea that the PR benefit internationally is even remotely worth the hundreds of millions of dollars this would cost? I have seen absolutely nothing that shows the international community is interested, let alone impressed. For gosh sakes, we released dozens of these guys already and they are back trying to kill Americans and the Muslim world is doing nothing about that.
As I said, this was for domestic political consumption by a small minority of Americans. Playing to your base isn’t a good reason when national security is involved.
“The use of military or special tribunals for terrorists, pirates, and other international criminals has a longstanding and legitimate role. The commissions had already passed constitutional muster.”
It appears that, consistent with Harold Koh’s March 25, 2010 speech on behalf of the Administration, military tribunals with respect to alien enemy combatants held at the Guantanamo Bay detention center may resume. (http://abcnews.go.com/Politics/military-tribunals-return-guantanamo-bay-detainees/story?id=12732138)
“As a matter of fact I do think the the Muslim world and Europeans would be impressed by jury trials.”
I hope so. Until now they have not only been silent on shutting down those illegal abominations in The Hague without juries, the ICC, ICJ, and ICTY, and their associated illegal detention centers, but they actually participate in them.
“what specifically did Krauthammer say?”
He was on the air on Fox when the verdict was announced. He immediately declared it a “huge embarrassment” for the administration and went from there, ignoring that the defendant was likely to get life in prison. In my quaint view, it’s sloppy journalism to analyze the significance of a verdict, especially in such strong terms, without even mentioning the penalty the defendant faces. I would guess that he didn’t mention it because he was looking to stir up partisan fervor, as required on Fox. Mentioning that the defendant still faced life in prison despite his acquittal on so many counts would have taken some of the sting out of Krauthammer’s analysis. But his viewers deserved to know the facts so they could decide for themselves – that’s what used to be called fair and balanced journalism.
The conversation on Fox continued with other voices and no one mentioned the penalty the defendant faced. In reporting on a verdict, that is normally boiler-plate stuff.
Over the following couple of days, the transcripts show, Fox brought in a series of Republican politicians who all picked up on the “embarrassment” theme. The possibility of a life sentence was never raised. No interviewer ever responded, “But Congressman, he does still face life in prison …” Even Sen. Hatch, who knows better, implied that the conviction on one count would result in a smaller sentence, saying, “He’s only going to spend a certain amount of time in jail.” The interviewer, Jenna Lee, ought to have corrected the record: “He faces up to life without parole, doesn’t he, Senator?”
If this is supposed to be journalism, it’s shoddy at best.
Adam Serwer has a new column on the Ghailani verdict (and the unfulfilled doomsday scenarios) today. He also links to an earlier post of his on military commissions and how they’ve actually done in the putting-away-terrorists department. (Not so well!)
The judge in this case applied the absolute maximum he could. That’s a fact.
Pointing out that the verdict put the portential sentence at risk is again a fact.
Mollie,
Given that people like Holder (he and his firm specifically) spent years, thousands of hours, and millions of dollars trying to frustrate the work of the tribunals, claiming the tribunals weren’t efficient is the worst kind of bootstrapping.
Paul,
Are you really saying that the DoJ really was “pleased” with the verdict like they said? As I recall, that was what Krauthammer was responding to. And what if they did “mention the penalty he faces”? What was that? When he made the comments no one knew what the sentence would be. Would it have been good journalism to suggest a guaranteed life sentence?
Besides, he’s not a journalist. There were just as many commentators on the other side soft soaping Holder on a great victory as if the hundreds of acquittals were irrelevant.
Like I said, I don’t even think that the sentence was the central issue. I just looked at the Weekly Standard commentary from Novemeber and they say so explicitly – admitting he was likely to go away for a long time. The problem was that Holder sold this thing as having absolutely no risk. The verdict demonstrated that this isn’t true. They came dangerously close to a hung jury. It was a compromise verdict. Evidence (not collected under torture) that would definitiely have been admissible in a tribunal was excluded. It would have shown that Ghailani was an explosive expert and knew what the target was and knew people were going to be killed. This was the issue that the jury hung up on.
Again, just because the final outcome was OK doesn’t mean the process is perfect. This case revealed a seriously flawed process for prosecuting international terrorists.