White House responds to Ghailani verdict criticism

James Cohen in Newsday, November 18, 2010

Media Source

The White House Thursday pushed back against a surge of politically charged criticism in the wake of accused embassy bomber Ahmed Ghailani's 284 acquittals Wednesday in federal court in Manhattan, declaring the result proved that civilian trials of terror detainees work.

Speaking in Washington, press secretary Robert Gibbsargued that what counted was the sentence Ghailani faces on his single conspiracy conviction and the fact that Manhattan did not face a terror attack during the trial.

"There was a guilty verdict, a minimum sentence of 20 years, that incapacitates somebody that has committed a terrorist act," Gibbssaid. " . . . Not once was there a security concern relating to either the transfer of or the conduct of this trial."

Republicans were out in force, lashing the outcome as a death knell for civilian trials, but legal experts agreed with Gibbs on at least one point.

If anything, they said, the White House may be low balling its prediction on what will happen at a Jan. 25 sentencing that could delve into factors ranging from Ghailani's harsh treatment during CIA interrogation to U.S. District Judge Lewis Kaplan's view of his acquittal on dozens of murder-related charges.

"JudgeKaplan," declared Washington lawyer and former Justice Department prosecutor Aitan Goelman, "is going to give him life."

Ghailani, 36, was charged with 285 counts, including murder and conspiracy, in the 1998al-Qaidabombings of U.S. embassies in Africa, in which 224 people died. Captured in 2004 and detained at CIA secret jails and Guantánamo for five years, he was the first ex-detainee tried in civilian courts.

His defense was that he didn't know he was part of a terror plot. The jury, apparently finding insufficient evidence that he wanted to kill people, convicted him only of conspiring to blow up a U.S. building, and "proximately causing" deaths.

That carries a minimum of 20 years, and a possible maximum of life. If he gets a term of years, experts said, Ghailani has a strong argument to get credit for the five years he was already detained, and extra credit for any abuse he suffered in custody.

"The defendant will argue the conditions under which he was confined were so horrendous, he should get two days for one, or three days for one," said James Cohen, a Fordham law professor who represents Guantánamo detainees."

The problem, Cohen said: If Ghailani gets life, it's life - subtractions and credits don't matter.Kaplanknows evidence the jury didn't hear, including a witness who sold GhailaniTNT whom the judge barred from testifying, and admissions Ghailani made in custody. And the judge is allowed to take the alleged murders into account in sentencing, despite the acquittals.


"Knowing what was excluded, he probably knows this guy murdered hundreds of people," said Goelman. "And he'll be inclined to showing that the civilian justice system is capable of meting out tough sentences in these cases." With Tom Brune