- The Washington Times - Thursday, November 18, 2010

The Justice Department on Thursday said it was committed to a policy of taking some terrorism suspects before civilian courts, although several critics - Republicans and one high-ranking Democrat - said the verdict in the civilian trial of Ahmed Ghailani showed that military commissions were needed to try terrorism detainees.

The commander of the USS Cole when it was attacked by al Qaeda terrorists in 2000 said the verdict against Ghailani - found guilty on only one of 285 counts - represented “a mockery of justice and is further proof that civilian trials for enemy combatants is a foolish and misguided strategy.”

“Once again, under the watch of the Obama administration, justice is being sacrificed at the altar of political expediency,” Kirk S. Lippold said. “The families of those killed by the terrorists have been re-victimized by Attorney General [Eric H. Holder Jr.s] decision to use the federal court system to prosecute terrorists.”

The White House had hoped that an overwhelming verdict would eliminate congressional concern about moving the detainees being held at U.S. Naval Base Guantanamo Bay, Cuba, to civilian courts. President Obama avoided discussing the case during brief public appearances on Thursday.

The Ghailani verdict also called into question the problem of what to do in the pending case of Khalid Shaikh Mohammed, the so-called mastermind of the Sept. 11, 2001, attacks on the World Trade Center and the Pentagon, and others involved in the attacks. The Justice Department initially planned to prosecute those cases in civilian courts, but the administration reversed course amid political opposition.

Ghailani was convicted in federal court in New York on Wednesday after a five-week trial on one of 285 counts for his role in the 1998 bombings of the U.S. embassies in Kenya and Tanzania, which killed 224 people, including 12 Americans. He faces 20 years to life at sentencing in January.

“Those charged with crimes of war and those who have been determined to be dangerous law-of-war detainees do not belong in our courts, our prisons or our country,” Sen. Jim Webb, Virginia Democrat, said in a statement. “I again call on President Obama to use the new military commission system that is in place to try the terrorist detainees currently held at the Guantanamo detention facilities.”

The senator, a former secretary of the Navy and a highly decorated Marine Corps infantry officer during the Vietnam War, said the new commission system “is consistent with international standards” and “balances robust procedural and substantive rights for the defendants, including prohibiting the introduction of evidence obtained through torture, against the reality that these are not common criminals, but violators of the law of war.”

The Ghailani conviction did little to push Mr. Obama closer to closing the military prison at Guantanamo Bay, Cuba - a promise he made during the 2008 presidential campaign. White House press secretary Robert Gibbs said Thursday that the administration was committed to trying some terrorism suspects in civilian courts and would use “all the tools at our disposal” to try Guantanamo Bay detainees.

“The president remains committed to the goal of closing Guantanamo Bay because we know from talking to our commanders in the field, and we know from intelligence that we gather, that this is a source of, this is a recruiting tool that al Qaeda is and continues to actively use in trying to find people like Mr. Ghailani and others to seek to do our country harm,” Mr. Gibbs said.

Justice Department spokesman Matthew Miller said Ghailani was convicted of “a serious crime for which he could be sentenced to life in prison” and told reporters that the Obama administration would continue to rely on a combination of civilian courts and military commissions to handle terrorism cases.

But Rep. Peter T. King, the New York Republican who is in line to become chairman of the House Homeland Security Committee in January, said he was “disgusted at the total miscarriage of justice” in the Ghailani case.

“This tragic verdict demonstrates the absolute insanity of the Obama administrations decision to try al Qaeda terrorists in civilian courts,” he said.

Mr. King noted that Mr. Holder had “assured us that failure is not an option” in the trial of suspected terrorists, but “this case was doomed from the beginning when the judge excluded [the Justice Department’s] key witness, who admitted selling the explosives to Ghailani.”

“Where is the justice for the more than 200 people killed and 4,000 injured in the terrorist bombings of our U.S. embassies in Kenya and Tanzania?” he asked. “This is a tragic wake-up call to the Obama administration to immediately abandon its ill-advised plan to try Guantanamo terrorists like the admitted 9/11 mastermind Khalid Shaikh Mohammed in federal civilian courts.

“We must treat them as wartime enemies and try them in military commissions at Guantanamo,” he said.

The California-based Criminal Justice Legal Foundation, which filed a “friend of the court” brief on Ghailanis unsuccessful speedy-trial motion, said the testimony of a key witness was excluded because the government learned of the identity of the witness through interrogation of Ghailani.

Foundation Legal Director Kent Scheidegger said the trial judge found that admission of this testimony would violate the rules applicable to civilian trials. He noted that the Military Commissions Act contains a provision excluding statements of the defendant himself under some circumstances, but it does not expressly exclude evidence obtained from leads acquired through interrogation.

“The verdict announced yesterday demonstrates that rules designed to safeguard American citizens from oppressive police interrogations have no place governing military and intelligence services grilling alien enemies,” Mr. Scheidegger said. “Evidence incriminating Ghailani in the killing of 12 Americans and hundreds of other innocent people was excluded by those rules.

“You made a huge mistake, Mr. President. Recognize it, and do not repeat it. Try the rest of the terrorists before military commissions,” he said.

Sen. Lindsey Graham, South Carolina Republican, who might be a key vote in any decision to close Guantanamo, was Mr. Holder’s guest at a Justice Department speech Thursday, telling reporters that top-level al Qaeda suspects should not be tried in civilian courts.

Mr. Graham said he was going to “have my hands full holding back” some fellow Republicans who want to rule out the use of civilian courts altogether for terrorist suspects. “That would be a bridge too far for me.”

c David Sands, Ben Conery and Kara Rowland contributed to this report.

• Jerry Seper can be reached at jseper@washingtontimes.com.

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