There's been a lot of back-and-forth on whether the result of the trial of Ahmed Ghailani (one conviction for conspiracy; acquittal on the other nearly 300 counts) was a victory for the U.S. One dimension of the debate has been whether the result either proves that federal courts can handle prosecutions of al Qaeda terrorists, or that it proves that it was a mistake to use such a forum.
I'm agnostic about federal trials vs. military trials, which is to say that I don't know if the government would have done "better" in a military commission. And I don't have a conclusive view as to whether this result was a win for the government, but I'm inclined to think that the result is not such a good one for the government, and that Wittes and Jack Goldsmith are right that it's just better to use military detention to incapacitate the other high value detainees rather than prosecute them in any forum.
Imagine if Khalid Sheikh Mohammed were prosecuted in federal court, with a similar result to Ghailani's -- that is, conviction on a serious conspiracy to use a weapon of mass destruction charge, 18 USC 2332a, but acquitted on 3000 counts of terrorism transcending national boundaries, 18 USC 2332b (for killing the victims of 9/11). Well, with the conspiracy conviction, we could imprison KSM for life. But we are likely to do that with military detention as it is. (True, 18 USC 2332a does carry a potential death sentence if death results from the use of the weapon of mass destruction, but the jury's split verdict might raise a question -- as it does in the Ghailani case -- of what exactly it held the defendant responsible for.)
In other words, I have to think that a major reason for seeking prosecution is the demonstration, through a judicial verdict, that the defendant in fact committed the particular act with which he is accused. Debra Burlingame, whose husband was one of the pilots killed on 9/11, raised a variation of this point to Wittes and Chesney, who respond that this concern doesn't prove that the federal trial was a mistake, because there is no guarantee of a different result in a military commission, and that military detention would not have provided any more closure.
I think Wittes and Chesney are right, as far as that goes, so I am not suggesting that it was a poor decision to have tried Ghailani in court. Rather, I'm suggesting that the result was, relatively speaking, a poor one. If we were to try KSM and have a similar result, I would also argue that too would be a relatively poor one. Yes, we do validate Ghailani's criminal status based on the single count of conviction. But we failed to validate his murderous intent toward the 200+ victims of the bombing. In the end, we get to incapacitate him for a long time, but perhaps no longer than what we would be entitled to do even without the conviction. Only we've spent a lot of money on a trial. . . .
A final thought: even though the ultimate sentence Ghailani receives may be the same as that if he had been convicted of the other 200+ counts, there is still a potentially significant difference. What if Ghailani successfully appeals his conviction? Maybe he gets convicted again on a retrial on that count, but the other counts are dead to the government, because of the double jeopardy protection.
Of course, there's no guarantee in the hypothetical that, had he been convicted of more counts, those counts would not have been reversed as well, or at least "tainted" by the one reversed count. But they might have survived independently. The point is that the acquittals are home runs for Ghailani's defense team, and now they only have to attack the remaining count of conviction.
To sum up -- I'm not arguing that the result shows we should have used a military commission. What I am saying is that I am skeptical of the government's proclamation that it achieved a satisfactory result:
Officials at the Justice Department and White House brushed aside the prosecution's weak showing in the New York trial, portraying the single-count conviction as a victory. They emphasized that Mr. Ghailani is facing 20 years to life in prison after being found guilty on the conspiracy charge.
“I would point out, as a general matter, that there are very few federal crimes that carry a mandatory minimum of 20 years,” said White House spokesman Robert Gibbs.
If it's a victory, it's kind of like Oregon's 15-13 victory over Cal this last weekend, except that there's the possibility of an NCAA appellate court reversing an on-field ruling and dictating either a do-over, or in the worst-case scenario, awarding the victory to Cal.