Critics are calling for military tribunals for remaining terrorism suspects in U.S. custody, pointing to a New York City jury's verdict Wednesday that cleared a former Guantanamo detainee of the most serious charges against him.
But national security experts say they're not so sure that the problems that prosecutors in the case against Ahmed Khalfan Ghailani confronted in civilian court would have played out much differently in a military commission.
Ghailani was convicted of just one count in federal court for his role in the 1998 bombings of U.S. embassies in Kenya and Tanzania that killed 224 people. He was acquitted of more than 280 other charges.
During his trial, prosecutors were prevented from using any evidence allegedly obtained from Ghailani through torture. But that evidence would also have been inadmissible if Ghailani had been tried by military tribunal, says Benjamin Wittes, a senior fellow with the Brookings institution who studies legal issues surrounding the war on terrorism.
“If you, when you arrest somebody like Ghailani, put him in long-term secret detention with enhanced interrogation, you will create enormous back-end problems for any criminal trial that you'd later try to conduct, including a federal court trial and including a military commission,” Wittes said.
On the other side, defense lawyers for Ghailani say they haven't stopped fighting. They're going to appeal the single conspiracy conviction. And that's not all.
“We will be arguing strongly that based upon everything that Mr. Ghailani has gone through while in United States custody, specifically what he went through at the CIA black sites, what he went through at Guantanamo Bay, that those should mitigate against having a harsher sentence,” said Michael Bachrach, a member of the defense team.
Would that be different if the case were handled by a military commission?
One detainee charged before a military commission received a life sentence, but a few others got out within months, essentially being given credit for time they had already served.
Contrast that with the fate of four other men who were charged with taking part in those same Africa Embassy bombings years ago but never taken to Guantanamo.
Instead, they went to trial in New York — and they're all spending the rest of their lives in a supermax prison.
Ghailani, meanwhile, faces a minimum term of 20 years in prison, and a maximum of life, when he is sentenced in January.
"No one should dismiss this as a trivial conviction or a minor event," says Eugene Fidell, who leads the National Institute for Military Justice. "It's going to change Mr. Ghailani's life, big time."