Suspected Terrorists should be Transferred to Civilian Custody and Processed in the Criminal Justice System

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Ahmed Khalfan Ghailani was involved in the two bombings of U.S. embassies in Africa in 1998 which killed 224 people, including 12 Americans. To what extent we do not know. The final verdict is mixed on that issue. What we do know is that the New York Times reported Ghailani was captured in Pakistan in 2004 where he was held in one of the CIA’s “secret prisons” for most of the next five years. He was subjected to repeated interrogations and torture during that period before he was transferred to Guantanamo Bay detention facility, according to his attorneys. The Obama administration elected to use the Ghailani case as a test run for its policy that terrorists should be tried in civilian courts rather than before military tribunals. Ghailani was then indicted by a New York federal grand jury on 285 terrorism-related counts, including conspiracy to use weapons of mass destruction and murder in connection with the embassy bombings, and thereafter transferred from military custody to civilian custody.

The Times also reported that last May that U.S. District Court Judge Lewis A. Kaplan issued two significant pretrial rulings in the Ghailani case which seem to pave the way for future prosecution of suspected terrorists, like Khalid Sheik Mohammad, in civilian courts. The judge denied motions by Ghailani’s attorneys to dismiss the charges against him because he had been subjected to torture while held in the CIA’s “black site” facility and because his right to a speedy trial had been violated by the secret CIA pretrial incarceration. Put simply, torture and long term incarceration in secret prisons without an attorney or due process protections will not stand as a bar to terrorism prosecutions in Judge Kaplan’s court—a significant departure from longstanding constitutional precedents in our system of  justice.

But on the day before the Government was to present its case Judge Kaplan handed down a ruling which, some legal experts believe, damaged the prosecution’s case, according to theTimes. The judge ruled the Government could not use Hussein Abebe as a witness because the CIA learned about him through Ghailani’s tortuous interrogations. Abebe was prepared to testify he had sold Ghailani the explosives used to destroy the embassies. Judge Kaplan, however, tempered his ruling with the observation that even if Ghailani were found not guilty, he could be held indefinitely as an “enemy combatant” until “hostilities between the United States and al Qaeda and Taliban end.”

Last month, following a four-week trial, an anonymous six-man, six-woman jury acquitted Ghailani of 284 counts while finding him guilty of one count of conspiracy to destroy government buildings and property. He faces a minimum of 20 years and a maximum of life imprisonment on that one count at his sentencing scheduled for January 25, 2011. Lead prosecutor in the case, Preet Bharara, said he will seek a life sentence for Ghailani. Ghailani’s four attorneys presented a defense that their client had been “duped” into assisting in the conspiracy to destroy the embassies and will obviously push for a much lesser sentence because of the jury’s verdict.

Peter E. Quijano, one of Ghailani’s attorneys, told the media gathered outside the federal courthouse after the verdict: “This verdict is a reaffirmation that this nation’s judicial system is the greatest ever devised. It is truly a system of laws and not men, where, in the shadow of the World Trade Center, this jury acquitted Ahmed Khalfan Ghailani of 284 of 285 counts.”

Others were not as overjoyed about the verdict. In an op-ed piece, the New York Postcharacterized the verdict as “obscene” and said Ghailani was a “terrorist” who got away with murder. New York Congressman Peter T. King, probably the next chairman of the House Committee on Homeland Security, was quoted in the Times as saying that verdict was a “miscarriage of justice” while Rep. Tom Price, R-Ga., took the criticism a step farther, calling the verdict “a gross miscarriage of justice.”

Longtime advocate of military tribunals as the venue for trying terror suspects, South Carolina Republican Senator Lindsey Graham used the verdict as an opportunity to reinforce his support for terror trials exclusively before such tribunals: “While I respect the judgment of the court, I’m deeply disappointed in the verdict. We are at war with al Qaeda. Members of the organization, and their associates, should be treated as warriors, not common criminals. We put our nation at risk by criminalizing the war. Going forward, I once again strongly encourage the Obama Administration to use military commissions to prosecute enemy combatants, particularly the 9/11 conspirators like Khalid Sheik Mohammad, held at Guantanamo Bay, Cuba.”

But California’s Democratic representative, and intelligence expert, Jane Harman had an opposite reaction: “Unlike some of my colleagues, I applaud rather than decry yesterday’s conviction of Ahmed Ghailani, who now faces between 20 years and life in a federal maximum security prison on charges connected to the 1998 embassy bombings in Africa. This is far from an exoneration of Mr. Ghailani, as has been suggested and is a stiffer sentence than all but one meted out by military tribunals … Experts believe that Ghailani would have been convicted on more counts if evidence against him, that was ruled inadmissible, had not been tainted by now discredited Bush-era detention and interrogation practices. More than 200 years of American jurisprudence and a clear track record of success should not be thrown out the window or falsely characterized for political advantage. The Obama Administration needs to push back.”

We agree with Rep. Harman. Ghailani will most likely spend the rest of his life in the federal “super max” (ADX) prison in Florence, Colorado, along with other convicted foreign and domestic terrorists such as Eric Rudolph, Richard Reid, Jose Padilla, Zacarias Moussaoui, Terry Nichols, Ramzi Yousef, and others. It does not matter whether he was convicted on one count or all 285 counts. The only way out of this deepest, darkness dungeon is through a presidential pardon but that kind of executive clemency will not be forthcoming in this lifetime.

We have no way of knowing what was in the minds of jurors who heard all the evidence against Ghailani. The fact that it was a “terror” trial and the fact that the jury had to serve anonymously tells us the jurors were aware of the legal, as well as the political, magnitude of the case. While the Bush-era “war on terror,” with all its “enhanced interrogation techniques” (a now clearly defined euphemism for torture) led by Vice President Dick Cheney, may have played well in the far right political arena, most Americans have never been, and hopefully never will be, fond of torture and the Machiavellian “the end justifies the means” manner of waging war either on terror or crime.

For the very life of us, we do not understand how Sen. Graham and his military tribunal advocates cannot see that classifying “terrorists” as “enemy combatants” elevates their world stature as martyr-like “warriors.” They want to be seen as “warriors” and, yes, treated as such. Ramzi Yousef and Zacarias Moussaoui would much rather spend the rest of their lives in a “military detention” facility like Guantanamo Bay than a super-max prison like the one in Colorado. They would not only be treated more humanely on a daily basis in military custody than in civilian custody but they would also be viewed by young terrorist hopefuls as “warrior heroes” on the world stage. As the matter now stands, Yousef and Moussaoui are just “convicted felons.”

Thus, it is our firm belief America does a disservice not only to its world renowned criminal justice system but to the global fight against terrorism when it elevates terrorists above the status of “common criminals.” Our national security interests would be better served if all suspected terrorists currently confined in military custody would be transferred to civilian custody and processed in the criminal justice system just like Ghailani. All terror suspects, whether foreign born or domestic bred, should be indicted, prosecuted, and convicted as criminal defendants in a civilian setting if there is evidence to warrant such.  We are a Country built on the foundation of fairness and rule of law and we should treat the worst of our enemies with respect to those same valued concepts.  How we treat our enemies is how we will be seen, not only by the rest of the world, but by ourselves when we look into the mirror.  Are we America or a country that is stepping closer and closer to the brink of an Orwellian Big-Brother society built on fear and hatred?

The real issue here is not “protecting the rights of terrorists” as some political conservatives like Louisiana Gov. Bobby Jindl suggests, but protecting our criminal justice system from those who advocate “war on terror” policies which are akin to a “fascist military state.” The fight against evil can never be waged at the expense of good. As John Mortimer in Where There’s a Will put it: “A ‘war on terrorism’ is an impracticable conception if it means fighting terrorism with terrorism.”

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair