Ahmed Khalfan Ghailani had been held for years before coming to trial for his alleged role in bombings of U.S. targets in the world. The federal judge ruled in his trial that a witness for the government could not testify because the identity of the witness had been coerced by the government.

Many critics point to this case as proof that the terrorist detainees should be tried in military courts. Who’s correct in this fight??

They should not be in military courts because:

I’ve already posted a few reasons for this so let me add some more–

• After trying dozens of jury trials as both a prosecutor and defense lawyer, the fact the jury acquitted on over 280 counts strikes me not so much as a mis-carriage of justice but as a resounding affirmation of justice. It’s not that the defense was strengthened by the judge’s ruling so that they overwhelmed the government. Rather, the government’s case was so weak to begin with, maybe Mr. Ghailani should never have even been charged. In my experience, juries take their job very seriously and are extremely careful in their deliberations. They wouldn’t throw-out all of those counts unless they felt the government hadn’t come close to proving any of them beyond a reasonable doubt.
• Convictions don’t always equal justice. Sometimes, innocent people are falsely accused. Acquittals in those cases represent a just result also.
• Critics assume that a military court would have reached a different decision. I’ve been involved in military trials as a member of a JAG Corp years ago. The Uniform Code of Military Justice is different than the civil rules, but that doesn’t mean a military jury would necessarily convict in this case either.
• Critics also warn that if we tilt the scales in trials to somehow favor alleged terrorists, others will be emboldened to commit terrorist acts against the U.S., knowing they’ll get those “easy” civil juries. For one thing, the scales aren’t tipped–anyone charged with a federal crime has a tough, uphill battle on their hands.
• What if we’re “easy” on terrorists? by allowing them full rights under our rules of criminal procedure? Won’t that encourage more terrorist acts? Maybe so…but think of the reverse situation: what if an American was falsely accused of a terrorist act in a foreign country? Wouldn’t we want our citizen to have all the rights they could possibly have and a fair and open trial? Would we want our citizen tried in secret by some military tribunal?
• Of course, some international criminals will take advantage of us. I still think we should provide the moral example to the world that we respect the right to a fair trial for anyone within our borders.

Do you agree? Disagree? Let me know!!

The post Guantanamo Detainee trial=Justice? appeared first on Colin T. Nelson.

It is justice and here’s why:

(Read the story in the NY Times)

http://www.nytimes.com/2010/11/18/nyregion/18ghailani.html)

Mr. Ghailani was charged with participating in the bombing of several American sites in Africa in 2004. He was arrested in Pakistan and held by the CIA in a “black site” at Guantanamo Bay in Cuba for over five years. One of the key parts of the government’s case was a statement by a witness against the defendant–who’s identity the CIA learned of only through a “confession” given by the defendant. The federal judge hearing the trial refused to allow the government to use this witness apparently because the confession was given after the CIA tortured the defendant.

The verdict ignited complaints from many sources who feel that Mr. Ghailani should have been tried by a military tribunal instead of a civil court. But for the ruling of the civilian judge they think, a military tribunal would have reached a more just decision–a verdict of guilty on more counts.

There are several reasons this viewpoint is wrong:

• Critics forget that the jury did convict Mr. Ghailani of one count that carries anywhere from five years to life in prison. At the sentencing hearing, the rules of evidence are applied differently than at a jury trial. Undoubtedly, the government will try to use other evidence to convince the sentencing judge to be more harsh.
• Many critics assume that a guilty verdict on more counts automatically means justice was done. Why is it that a not guilty verdict is just as powerful an indication that justice was accomplished? Prior news reports and the evidence the media released made it look like Mr. Ghailani was guilty of more crimes. The purpose of a trial, with its rules of what evidence can be used or not, is to avoid a rush to judgement or trial in the media that is always unfair to both sides.
• Why do critics assume the jury made a mistake? This was a jury of twelve people drawn from the community who were questioned carefully about their fairness. We can probably assume they were just as worried about terrorism as any of us. The difference from them and us is that they actually heard all the evidence–those of us listening to the media heard only small, select portions of the entire trial. Why do critics assume that just because this jury acquitted on most counts, they were wrong?

There are several other points I want to make in disagreement with the idea of using military tribunals for these defendants, but I’m running out of room in this blog.

What do any of my readers think? Let me know your ideas!

The post Terrorist Acquitted=Justice? appeared first on Colin T. Nelson.