Robert Chesney:
It was inevitable that participants in the larger debate over terrorism and detention would make too much of the Ghailani trial's result. An across-the-board conviction would have been touted on the left as proof that civilian criminal prosecution should completely displace both military commissions and indefinite preventive detention (subject to habeas review). An acquittal would have been touted on the right as proof of the opposite.
Neither argument would have been persuasive. In any one case, the efficacy of prosecution is deeply contingent on the particular mix of evidence, legal issues, judge, and jury. Failure or success in one instance is no guarantee that the same result will be achieved in the next case. The ambiguous nature of the Ghailani verdict -- a near acquittal, but a conviction on a single count that could still could open the door for the maximum sentence of life in prison -- leaves both poles in the debate trying to make lemonade from lemons. They are both doing their best to portray this as either a sufficient victory (though it does not look that way to many) or a complete defeat (which is just ridiculous).
Much of the post-verdict debate has centered on the question of whether obstacles the government encountered in this case could have been avoided had Ghailani been tried by military commission. While there has been much talk of evidence that could have been admitted in a commission that was excluded in the civilian setting, there has been very little convincing explanation of why this would have been so. At the same time, there has been insufficient attention to the unique problems that would have arisen had the case been tried by military commission -- most notably the certainty of protracted appeals over the propriety of a military commission's ability to prosecute a conspiracy charge. The U.S. national debate would be better served if it focused less on the question of the proper prosecution venue, and a lot more on the question of whether and when it is worthwhile to pursue any prosecution under circumstances in which the government has already decided it will hold the defendant indefinitely even if it loses the case.
Robert Chesney is the Charles I. Francis Professor in Law at the University of Texas, a distinguished scholar at the Robert S. Strauss Center for International Security and Law, and a nonresident senior fellow at the Brookings Institution. He blogs on national security-related legal topics at www.lawfareblog.com.
SUBJECTS:
(7)
HIDE COMMENTS LOGIN OR REGISTER REPORT ABUSE