In justifying his decision last year to try Ahmed Ghailani in a civilian court rather than by a military commission, Attorney General Eric Holder reassured Americans that he and President Barack Obama knew that “failure is not an option. These are cases that have to be won.” Now that Holder has failed to gain a single murder conviction of an admitted participant in the 1998 bombings of U.S. embassies in Kenya and Tanzania that killed 224 people, including 12 Americans, he should resign immediately. The Ghailani verdict exposes Holder’s appointment as a profound mistake with deeply damaging implications for America’s security.
Ghailani, the first Guantanamo detainee to be tried in civilian court, was charged with 285 counts, including 224 murder counts. Holder’s team chose this case specifically to prove that civilian courts could convict terrorists. Instead, they succeeded only in gaining a conviction on one charge of conspiring to destroy government buildings. Ghailani was spotted by witnesses purchasing gas tanks, using al-Qaida funds, that were used in the truck bombings. The FBI found a blasting cap in his room at an al-Qaida safe-house. Ghailani fled to Pakistan the day before the bombings after lying to his family about his destination and his reason for leaving. But the jury never heard these facts because so much of the crucial evidence was barred by the judge.
This perversion of justice not only highlights Holder’s unfitness, it also points to Obama’s feckless and essentially theatrical policy on the prosecution of terrorist detainees. On the one hand, he promises to close Guantanamo; on the other, he admits some Guantanamo detainees will be held indefinitely without trials of any kind. So why close Guantanamo except for symbolic — i.e. political — reasons? Obama also insists that civilian juries hear cases of al-Qaida soldiers caught abroad while waging war against America. But his attorney general told Congress last November that the government will not release terrorists even if they are acquitted in civilian trials. This charade makes a mockery of justice.
To be sure, by convicting Ghailani of plotting bombings but not of causing the deaths, jurors returned a contradictory verdict. Instead of rendering justice based on the merits of each charge, they appear to have brokered a verdict to please a lone holdout. We cannot imagine such an outcome in a military trial. Luckily, the conspiracy charge carries a minimum 20-year sentence, and Ghailani could get life imprisonment. But will luck spare us the next time Holder drops the ball in a terror trial before a civilian court? Obama must find a credible detainee prosecution policy, and Holder ought to spend more time with his family as soon as possible.