Obama's Handcuffs

Was the Ahmed Ghailani verdict a victory for the rule of law, or the final nail in the coffin of the Obama administration's attempt to try terrorists in civilian courts?

A U.S. federal criminal court in Manhattan made history Wednesday when it issued a verdict in the case of Ahmed Ghailani, the first former Guantánamo Bay detainee to be tried in an American civilian court. The result wasn't exactly what the White House was hoping for: Ghailani was acquitted on 284 out of 285 charges related to the 1998 U.S. embassy bombings in East Africa. He was found guilty of one count of conspiracy, which carries a possible life sentence, and a minimum sentence of 20 years in prison.

Both the Obama administration and its critics were quick to use the ruling as ammunition in the ongoing debate over how to balance national security and the rule of law in the war on terror. Rep. Peter King (R-NY) decried the verdict as a "total miscarriage of justice," and said that it exposes "the absolute insanity of the Obama administration's decision to try al Qaeda terrorists in civilian courts."

White House spokesman Robert Gibbs soon fired back. The trial "incapacitated somebody that has committed a terrorist act and because of that incapacitation is not going to threaten American lives," he said.  He also affirmed the president's continued commitment to closing Gitmo.

Who's right? To get some answers, Foreign Policy asked six legal experts, former policymakers, and human rights activists to tell us what they believe this verdict means. Here's what they had to say.

Tom Malinowski:

Cynical commentators are portraying the Ghailani verdict as a blow to civilian trials.  But in case facts still matter, we should remember: A civilian American jury convicted Ghailani, swiftly and with finality. He will serve at least 20 years.

Had he been tried before a military commission, the judges would have likely also thrown out evidence tainted by Bush-era torture. All of the members of Congress criticizing this verdict (including New York Rep. Peter King) voted for the reformed military commission rules that prohibited evidence derived from torture and cruelty and should know better.

If the U.S. government had sought instead to keep Ghailani in Guantánamo without charge, there is absolutely no certainty that it could have held him for as long as the 20 years -- minimum -- that he will serve under this sentence. Do the proponents of this option really think that U.S. courts will allow detainees to be held forever without trial, especially if, at some point in the next few years, Osama bin Laden and other top al Qaeda leaders are killed or captured, and the "war" against them is seen to be over? Under such an approach, the United States would not only be creating, for the first time in its history, a system of preventive national security detention, but the danger of releasing potentially dangerous people would be greater than if they were prosecuted in the civilian system.

President Obama now faces a decision about terrorism trials to come. In his National Archives speech last year, he laid out his policy -- that detainees who have violated American criminal laws and who can be prosecuted will be tried in civilian courts.

The president can do what he has said he believes is best for the country. Or he can allow local, not-in-my-backyard politics to influence what is fundamentally a decision about national security and the administration of justice. He can, in effect, create a new category of detainee:  those who can be prosecuted, but won't be for political reasons. Such a decision would not only undermine the rule of law, but diminish the president's authority and invite even more irresponsible political attacks on his counterterrorism policies. Fortunately, it's his choice.

Tom Malinowski is Washington advocacy director for Human Rights Watch.

Juan Zarate:

This verdict is hugely problematic for the United States in two fundamental ways. First, it demonstrates the difficulties of bringing high-level al Qaeda figures out of Guantánamo and injecting them in to the legal system. The questions of evidence, duration of detention, and the complications of cases that are old or are growing stale demonstrate that there are mechanical and substantive problems to bringing these types of cases to civilian courts.

More importantly, however, it reveals a fundamental tension between the reality that these are individuals the U.S. government will not release and the desire to hold them accountable in a criminal context in which their innocence is presumed by law. The fact that failure is an option in the criminal legal system -- that acquittals are possible -- raises the specter of a case in which an al Qaeda figure can be acquitted but not be released. Such an outcome will do fundamental damage to the central premise of criminal legal proceedings.

It's time for a step back -- for a principled legal approach that admits that the United States is at war with al Qaeda, provides a legal framework that allows for preventive detention, and permits the use of the criminal and military commission systems to hold terrorists accountable in certain, specific cases -- as with American citizens. The United States needs clarity and legitimacy in its long-term legal and policy approach to detaining terrorists in this long war. We are further away today than ever before from that clarity.

Juan Zarate was the first assistant secretary of the U.S. Treasury for terrorist financing and financial crimes, deputy national security advisor for counterterrorism (2005 to 2009), and is now a senior advisor at the Center for Strategic and International Studies.

Aziz Huq:

If there is any "lesson" to be learned from the Ghailani trial and its aftermath, it is that the politics of terrorism have scant connection to the law and policy of terrorism.

Perhaps the fairest way of reading the verdict -- especially given that at least one jurors is known to have been a hold-out in favor of outright acquittal -- is as a compromise. The jury split the baby, issuing a guilty verdict on one token conspiracy charge while acquitting on charges based on the identical acts.

This illustrates what the framers of the U.S. Constitution thought to be the central function of the jury: that a group of ordinary citizens could, as leading constitutional scholar Akhil Amar writes, exercise "de facto power" to acquit "against the evidence." The Ghailani verdict, in other words, may be a paradigmatic example of the jury in its original constitutional function of being a check on government action.

As for the politics, the Ghailani verdict will be used as another stick with which to beat the hang-dog Justice Department of Attorney General Eric Holder. Of course, those who take this position do not, and will not, explain why the case is a failure. They simply assume that Ghailani must be guilty and that a sentence of 20-plus years is not enough. They hardly pause to ask why a jury of ordinary New Yorkers -- people who live and work in and around the fallen Twin Towers -- would have acquitted him on most of the charges.

They do not dwell on the reasons for acquittal -- for example, the government's use of coercive means to extract evidence and its decision to detain him for years at Guantánamo while witnesses against him passed away or disappeared. Nor do they question whether the policies they endorse will ameliorate or worsen the problem they claim to decry. Least of all will they say what they really mean -- that the framers of the Constitution got it wrong when they assigned to ordinary juries the task of adjudicating guilt or innocence.

Aziz Huq is assistant professor of law at the University of Chicago.

Andrew Borene:

From the perspective of due process, the Ghailani verdict reinforces the argument that terrorism jury trials can be held successfully in civilian courts. That said, the case won't answer existing questions related to national security -- of which the use of federal criminal courts versus military commissions for Guantánamo detainees is just one.

Broader questions remain about the policy framework the United States will use to handle the challenge posed by terrorism in the years ahead. Is America at war with al Qaeda, its formally trained adherents, and any self-initiated followers? Is counterterrorism a law enforcement action, a military action, or some kind of hybrid? What are the accepted standards for reliable information deemed actionable for intelligence-gathering or targeting? How do those standards differ from reliable information deemed actionable by law enforcement and later admissible in any court or commission?

The public energy surrounding the Ghailani case could potentially spur positive movement in answering these questions. As a lawyer, I am hopeful that Congress will act to create conscientious, comprehensive detention legislation setting out standards for different categories of criminal defendants, combatants, and terrorists or war criminals. As an American citizen and veteran, I also fully expect our commander-in-chief to continue taking decisive, ethical action under the Authorization for the Use of Military Force resolution to capture or kill positively identified terrorists.

Andrew M. Borene is an attorney and was an adjunct lecturer at the University of Minnesota's Humphrey Institute. A former U.S. Marine officer and government lawyer, he is the editor of the American Bar Association's U.S. Intelligence Community Law Sourcebook.

Karen Greenberg:

The lesson I take from the Ghailani trial is that civilian trials can work, that it's possible to have a trial in which members of a New York jury -- who know what terrorism is like and how dangerous and destructive it can be -- can see where the facts seem to lead to a verdict of guilty on one count and where the facts seem to lead to a verdict of not guilty on other counts. It shows that there are citizens of this country who can make judgements in a way that is free of politics and who understand how to think about facts and the law within a trial setting.

On the matter of the excluded witness, Hussein Abebe, I'm not sure how valuable his testimony would actually have been. He was judged not only to have been located as a result of the enhanced interrogation of Ghailani but to be in many respects a less than credible witness when he appeared here in New York at a pre-trial hearing.

That may have been because he felt threatened by the Tanzanian national police, who constituted a troublesome presence during this trial. But there is no way of telling how his testimony would have stood up in cross examination. Arguably, his contributions may not have proved credible to this jury, just like other evidence presented by the prosecution seemed somewhat tainted by factors in Tanzania. 

Karen Greenberg is executive director of the Center on Law and Security at the New York University School of Law and author of The Least Worst Place: Guantanamo's First 100 Days. Her ongoing commentary on the Ghailani trial has appeared regularly on

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



Rethinking Objectives in Afghanistan

The United States invaded Afghanistan to defeat al Qaeda. It should stay that way.

The sense of unknown was pervasive during the CIA's nightly al Qaeda threat briefings in the first years after 9/11. Was a second catastrophe in progress? Were its perpetrators deployed? Might they use chemical, biological, or nuclear material? Our knowledge of al Qaeda grew quickly in 2002 and afterward, but we knew that our window into the group was nowhere near good enough to assure policymakers, legislators, and the American people that we in the agency, where I served from as deputy director of the Counterterrorist Center from 2003 to 2005, could prevent another strike.

The United States entered Afghanistan to resolve this threat, to hunt those who had orchestrated the 9/11 murders, and to disrupt, then dismantle, the network that would organize future plots. The Bonn diplomatic process that resulted in the creation of Hamid Karzai's government in Kabul supported this goal of uprooting and eviscerating al Qaeda. We would help Afghanistan choose legitimate, competent leaders who would not allow terrorist safe havens on Afghan soil. But there was not going to be any nation-building effort, and certainly not on the scale of the Marshall Plan in postwar Europe. U.S. troops weren't fighting in the hills of Tora Bora as a result of civil unrest and Taliban atrocities: After all, we chose not to intervene in Afghanistan before the attacks, despite rampant human rights abuses and seemingly interminable chaos. We simply wanted to stop attacks at home.

Now, nine years later, the link between terrorism and the war is obscure. Americans now wonder why their sons are still fighting and dying for the Karzai government, with its periodic criticism of coalition operations and reputation for corruption, including during elections this year. Yet we are still there, perhaps because we have incurred such a cost by intervening in Afghanistan that we cannot bear to consider disinvesting. Perhaps because our national reputation is at stake: Cut out now and we will be perceived as shortsighted (remember the Somalia and Lebanon withdrawals during the 1990s), not a characteristic of great powers. This is not to say we should be cautious about setting withdrawal timetables; instead, our question might be how we maintain a counterterrorism capability rather than whether we have the capability to oversee a return to some sort of Afghan normalcy.

We shouldn't delink these problems, though, for brutal but inescapable national security reasons: If our initial intervention stemmed from the attacks, should not follow-on decisions, such as whether to speak to the Taliban about reconciliation, relate directly to the al Qaeda fight? If we want to destroy al Qaeda, does our current strategy of isolating the Taliban -- which has a far greater penetration of Afghan society and provincial life that we or the Kabul government ever will -- make sense? It does if we want to build a civil society; it doesn't if we want local Taliban leaders to limit an al Qaeda presence because it might interfere with their goal of creating an Afghan emirate.

Over the long term, the Taliban, a Pashtun movement with limited aims, will not threaten U.S. national security interests; al Qaeda, if it resuscitates, just might. More pointedly, a deal with Taliban elements might help us pursue al Qaeda and limit our investment in Afghanistan, but it will result in human rights abuses and, possibly, a new civil war. We might remember that these problems, however disturbing from a Western perspective, were not sufficient cause for us to intervene in Afghanistan before the 9/11 attacks. We went in for national security interests, not to extend good governance. If we believe that we now owe more to the country, after nine years of intervention, we should be clear about the implications: We won't be able to create a civil society; this expanded goal is not a part of a counterterrorism strategy; and our investment in blood and money will have to be far greater than it is today. We underinvested nine years ago; we are paying the price now.

If we return to linking these two issues -- al Qaeda and our intervention in Afghanistan -- we would have to accept a painful reality that no force presence is likely to change. No power, from the British to the Russians to any Afghan government, has exercised control over the country's ethnically diverse provinces. Coalition power has proved equally limited: When insurgents, in this case the Taliban, benefit from local support, even the most heavily armed and technologically adept foreign forces in history -- U.S. soldiers and Marines -- face an uphill battle in uprooting them.

Assuming both sides are willing to cut a deal instead, there remains, then, the question of whether the Taliban would have the capability to police the country -- and whether Taliban leaders, themselves Islamist ideologues, would acquiesce to the presence of foreign fighters who intend to attack the United States. Taliban leaders obviously harbored Osama bin Laden and friends in the past, but it's not clear how deep their commitment was -- they are local tribal leaders, after all, not global jihadists.

To prevent an al Qaeda resurgence, the conversation, long term, might center on how we maintain an intelligence-collection capability to detect terrorist training and how we strike quickly when we find any information suggesting that training is taking place. The fight against al Qaeda is in Pakistan, not Afghanistan.

Without foreign occupiers for al Qaeda and its allies to fight in Afghanistan, our job in Pakistan might become narrower, and more achievable. It is a safe bet that Pakistani authorities do not much care whether tribes along Pakistan's border with Afghanistan cross into Afghanistan to fight against coalition forces that are viewed negatively throughout Pakistan. But if we eliminate the cause for cross-border activity by bringing in Taliban elements, U.S.-Pakistan tensions will diminish -- we won't need help policing resupply routes through hostile tribal areas, for example, and we won't need to run cross-border military operations. Conversely, Pakistan might have more motivation to help when it sees a government in Kabul that allows the Pakistani Army to believe that its long-term goal of strategic depth -- a comfortable flank in Afghanistan that helps keep the focus on India -- isn't being undermined. Far from believing that we are an ally in this campaign, Pakistan now sees us as an unreliable, sometimes duplicitous, partner. Our support for an Indian seat on the U.N. Security Council is a good strategic move, but in the short term it will help cement Pakistanis' view that we will abandon them eventually in favor of a far more attractive strategic partnership with their rival in New Delhi.

It's an equally safe bet that Pakistani officials, including in the security apparatus, are deeply concerned about the Pakistani Taliban and its allies as they attack Pakistani civilians outside the tribal areas and threaten to expand the extremist presence into cities such as Peshawar and Karachi. If we can eliminate the allure of cross-border operations for jihadists in Pakistan's tribal belt, we might be able to more effectively accomplish what the British -- and the Pakistanis -- have done in the past: pit one Pakistani tribe against another, with a focus on isolating those that harbor al Qaeda elements. Rough politics, maybe. But we're not going to eliminate al Qaeda by Hellfire missile alone, and the Pakistani security forces have spent nine years showing us they're not going to do it either, especially not for us. The only remaining lever is those who own the territory -- the tribes -- and they don't operate by our rules.

We should go into any of these policy evolutions with our eyes wide open. A return of the Taliban in Kabul might well result in a renewed civil war as the Northern Alliance that joined us to oust the Taliban grows nervous that we will allow the return of their enemy, and rearms. Let's not sidestep the potential human rights implications either: Abuses will escalate, sharply. But we fought the Taliban because they harbored terrorists, not because they failed to provide a healthy civil society. For the future, nation-building will remain a mirage in Afghanistan, with nine years of futility as proof. But destroying al Qaeda is a reachable goal, and a far more salient one for the United States. We've now turned these priorities around.