In recent months we heard a lot of pundits wax hysterical about the chaos and mayhem the federal court trial of a former Guantanamo detainee would bring to New York.
The folks at Keep America Safe – Liz Cheney, Bill Kristol, and Debra Burlingame – called the trial “dangerous,” “ reckless,” and “embarrassing”.
But in New York the trial proceeded with no disruptions. No street closures. No increased police presence. And, this week, a federal judge sentenced Ahmed Ghailani to life in jail with no chance of parole.
In a surprising verdict issued late Sunday afternoon, a military commission jury sentenced Omar Khadr to 40 years in confinement. Given that Khadr has already served eight years at the U.S. prison camp at Guantanamo Bay, Cuba, that's a 48-year sentence for a child soldier. Khadr is also the only fighter charged by the U.S. government with murder on the battlefield since the start of the wars in Iraq and Afghanistan. He was only 15 years old when, according to his guilty plea, in July 2002 he threw a grenade that killed a U.S. soldier.
Defense lawyers argue that the witness, Hussein Abebe, who the government says supplied Ghailani with explosives used to bomb the U.S. embassy in Tanzania in 1998, should be barred from the case because his identity is the fruit of the government's abuse. Prosecutors counter that the witness will testify voluntarily, and is only remotely linked to Ghailani's mistreatment. (Although evidence of Ghailani's treatment in CIA custody is largely classified and therefore filed under seal, nobody seems to be denying that Ghailani was subjected to the Bush administration's "enhanced interrogation techniques" in a secret CIA prison.)
At a hearing last month, federal district court Judge Lewis Kaplan, presiding over the case in lower Manhattan, questioned the government's claim that Abebe, who prosecutors call "a giant witness for the government," was testifying voluntarily. He's expected to rule on this issue by Wednesday. That ruling could signal how federal judges might decide these sorts of questions in the future – and whether the government will give more civilian judges the opportunity to consider them.
About 35 detainees now being held at Guantánamo Bay are slated for trial, but the government hasn't said how many it plans to bring to civilian courts on U.S. soil, and how many it will try in military commissions set up at the Guantánamo prison complex.
Since September 11, civilian federal courts have convicted more than 400 people on terrorism-related charges. Many, like Shahzad, are now serving life sentences. Military commissions, meanwhile, have convicted only four. And two of those have already been freed. That's in part because since their creation, the military commissions have been struggling to interpret the new Military Commissions Act, first passed in 2006 and amended last year, and the accompanying rulebook issued just this past Spring. International lawyers and constitutional scholars say the law has substantial legal problems that would put most post-trial convictions at risk of appeal.
Judge Kaplan's rulings in the Ghailani case so far reflect the careful way most civilian federal judges handle these cases using established law. In detailed legal opinions, the judge has so far refused to dismiss the case, rejecting strong arguments from Ghailani's lawyers that the government violated his right to a speedy trial by waiting six years to prosecute him (he was captured in 2004), and that his abuse in CIA custody should lead to his acquittal.
To their credit, prosecutors are not relying on statements Ghailani made in custody – presumably concerned that they would be considered the products of coercive interrogations and therefore inadmissible. With four other men already convicted and serving life in prison for their roles in the bombings, the government apparently believes it has enough evidence against Ghailani without his statements.
Still, the alleged torture of Ghailani in a secret CIA prison hangs heavy over this case – as it will every other one where detainees were subjected to the so-called "enhanced interrogation techniques" that included sleep deprivation, exposure to extreme temperatures, stress positions, confinement in a box and in some cases, waterboarding.
The Ghailani case is also being closely watched for any local reaction it provokes. Last year, Liz Cheney and her advocacy group Keep America Safe rallied in downtown Manhattan to protest the administration's decision to hold the trials of the alleged September 11 plotters in a New York federal court. Obama critics such as Debra Burlingame warned that "part of Jihad is tying up lower Manhattan"; Karl Rove called holding trials there "an utter, unmitigated disaster for the security of the United States."
So far, though, the New York Policy Department has said it hasn't had to take any extraordinary security measures for the first former Gitmo detainee's trial. Having been inside the courthouse for jury selection, I didn't notice any difference in security, either. Meanwhile, as my colleagues discovered the other day when they interviewed New Yorkers heading to work downtown, most locals don't even know the trial is happening. Watch reactions in the video below: