- The Washington Times - Thursday, November 18, 2010

What if Osama bin Laden was captured, brought to trial and walked? This question comes to mind after the Justice Department only managed to convict al Qaeda embassy bomber Ahmed Ghailani on one of 285 counts against him before a federal court in Manhattan.

Ghailani - considered a “high-value” terrorist - was charged with murder and conspiracy related to al Qaeda’s 1998 bombings of the U.S. Embassies in Kenya and Tanzania, which killed 224 people and wounded thousands. Ghailani, a former bodyguard for Osama bin Laden, was the first detainee transferred from the U.S. prison facility at Guantanamo Bay, Cuba, to the U.S. civilian criminal justice system. His trial was a critical test of the Obama administration’s approach to dealing with terrorists. In September, President Obama was confident that his model would work. “Some have derided our federal courts as incapable of handling the trials of terrorists,” he said. “They are wrong.” The president continued that American courts, juries and citizens “are tough enough to convict terrorists,” but the real issue was not who was “tough” but whether Mr. Obama’s Justice Department was skilled enough to deliver convictions. That matter is now seriously in doubt.

There was no shortage of confidence at the front end of the process. In May 2009, when Ghailani was charged, Attorney General Eric H. Holder Jr. said the trial “will ensure that he finally answers for his alleged role in the bombing of our embassies in Tanzania and Kenya.” He added that “by closing Guantanamo and bringing terrorists housed there to justice we will make our nation stronger and safer.” White House spokesman Robert Gibbs promised that “swift and certain justice” would be brought “on behalf of the families of those victims.” Mr. Obama’s team failed to give the promised closure to the victims’ families.

In June 2009, when Ghailani entered his not-guilty plea, Mr. Holder was certain his team would bring in convictions. “Ahmed Ghailani is being held accountable for his alleged role in the bombing of U.S. embassies in Tanzania and Kenya and the murder of 224 people,” he said. “The Justice Department has a long history of securely detaining and successfully prosecuting terror suspects through the criminal justice system, and we will bring that experience to bear in seeking justice in this case.”

The deck, however, was stacked against the prosecution from the start. Justice Department apologists blame the failure on the George W. Bush administration, claiming Ghailani was tortured at Guantanamo after his transfer there in 2006. The Bush team had moved to try the accused terrorist before a military commission and had sought the death penalty. The Obama administration dispensed with the commission, the death penalty and any evidence it thought was “tainted” by torture or otherwise did not pass muster. Mr. Obama unilaterally redefined previously legal “enhanced interrogation techniques” as torture, and even though Ghailani was not waterboarded, some of the most damning evidence against him never made it to the courtroom.

Mr. Obama’s overly legalistic approach to bringing terrorists to justice is in tatters, and a serious public debate is in order over how to handle future such cases. Last year, when Mr. Gibbs was asked what might happen if Ghailani wasn’t convicted, the flack declined to speculate. “I’m not going to get into hypotheticals,” he said. “Let’s discuss that if it ever comes to fruition.” No time like the present.