Or so the conservative national security wisdom goes. At least, that's the only reasonable conclusion to reach after watching the numerous politicians and hopefuls pouncing on the Ahmed Ghailani case as an excuse to lambast the Obama Administration.
Ahmed Ghailani, a Tanzanian and not a US citizen, was acquitted of 284 of the 285 counts the government had brought against him for his role in the 1998 Embassy Bombings. A member of al-Qaeda, Ghailani had assisted their efforts in conspiring to attack US assets overseas. The case against him had been brought in Federal court after his capture in Pakistan and rendition to the United States. Of the 285 charges brought against him, the jury acquitted him of all but one -- one count of conspiracy. The conviction means that he will spend at minimum 20 years and at most the rest of his life in "Supermaximum Security" ADX Florence along with other noted criminals such as Richard Reid (Shoe bomber), Ted Kaczynski (Unabomber), Zacarias Moussaoui (9/11 conspirator), Mahmud Abouhalima ('93 WTC Bomber) and Ramzi Yousef ('93 WTC Bomber).
There are those who criticize the use of the civilian court system as "coddling terrorists" or for being "ineffective" and "harmful to national security". The US is at War, after all and we don't try enemy POWs in civilian court, that'd be crazy. And if their assumption was correct, that would be a very logical progression given the facts established. The problem is that their underlying assumption is incorrect.
The United States is not at war, or at least not in anyway that matters to the current discourse of how to try international terrorists. We are, of course, at war in Iraq and Afghanistan but that is not what this is about. Ghailani did not attack US troops in Afghanistan, he did not attempt to bomb a market in Baghdad, he attacked US assets overseas in Tanzania. As such, he was subject to US laws, as many other have been before him. The US Federal Court system has plenty of experience trying terrorists successfully and has done so many times since and before 9/11. There is no reason to give him a status he does not deserve. He is a terrorist, a murder -- a criminal. He is no warrior, no soldier -- he deserves to spend the rest of his life in prison.
The other flawed assumption behind the aforementioned reasoning is that we are in an existential conflict with al-Qaeda and affiliated organizations. Their continued existence poses a threat to the very existence of the United States. But this too is flawed; al-Qaeda cannot destroy the United States, no matter how long and hard it tries. It may hurt us, it may kill thousands of people but in the fight between 300million people, 14 trillion dollars and the most powerful military in history against a few hundred people who are perpetually broke, the outcome is preordained. What has a greater ability to hurt us is ourselves: bankrupting ourselves with costly wars, sacrificing our civil liberties and our values for questionable security gains and our willingness to point fingers and political opportunism.
It's also not as if there is no precedent for the trying of non-US citizens for crimes against the United States, my personal favorite is Manuel Noriega, who never set foot in the United States but was nonetheless captured, tried in federal court and incarcerated in the US prison system. Since 9/11 hundreds of people have been convicted of terrorism/terrorism related offenses in the civilian court system. To be precise, 524 people are currently in US prisons on terrorism related charges (prosecuted since 9/11). The other option that detractors of the prison system support are military tribunals. Since 9/11 there have been 4 people convicted in these tribunals, 2 of whom are walking the streets and one of which is 15 years old.
There are some, very isolated cases in which there is a genuine legal uncertainty about the proper methods of trying terrorists. An al-Qaeda member who blows up a Baghdad market should be tried under Iraqi law. A Talib who throws acid in a girls face for attending school should be summarily executed, I mean... tried under Afghan law. There are a few cases where the legal system or prison system in the countries of origin is so precarious as to make it genuinely dangerous to keep them in the country and that is a rare exception. But with that caveat noted, terrorists should be tried in civilian courts. And yes, there will be some cases where the courts acquit a terrorist and he goes free. Such is the price we pay for having a just society. Such is a price I am more than willing to pay to keep it that way. Ahmed Ghailani is not a terrorist mastermind, and any possible damage done by releasing him is entirely manageable. Nor, even if he was would it be unreasonable to release him. The United States, the judicial system, is bigger than any man, regardless of how horrible his crimes.
The reason the United States is worth saving as more than a collection of disparate peoples and material goods is the values upon which we were founded and attempt to live up to every day of our lives. Equal Justice Under Law isn't just a pithy quote relegated to the fresco of some stone construct in downtown DC, it is the underpinning of our entire judicial system and changing that would do more damage to the United States than Usama bin Laden could ever dream of doing. To close, a quote from Judge William Young at the sentencing of Richard Reid:
This is the sentence that is provided for by our statutes. It is a fair and a just sentence. It is a righteous sentence. Let me explain this to you.
We are not afraid of any of your terrorist co-conspirators, Mr. Reid. We are Americans. We have been through the fire before. There is all too much war talk here. And I say that to everyone with the utmost respect.
Here in this court where we deal with individuals as individuals, and care for individuals as individuals, as human beings we reach out for justice.
You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too much stature. Whether it is the officers of government who do it or your attorney who does it, or that happens to be your view, you are a terrorist.
And we do not negotiate with terrorists. We do not treat with terrorists. We do not sign documents with terrorists.
We hunt them down one by one and bring them to justice.
So war talk is way out of line in this court. You're a big fellow. But you're not that big. You're no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders.
In a very real sense Trooper Santiago had it right when first you were taken off that plane and into custody and you wondered where the press and where the TV crews were and you said you're no big deal. You're no big deal.
Thank you, and vote Ballingrud/Scout in 2012.
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