Co-authored with Jack Goldsmith, The Washington Post, November 19, 2010
The Obama administration’s critics are missing the point on Ahmed Ghailani. Their reaction to his acquittal this week on 284 criminal counts and conviction on only one exaggerates both the vices of civilian courts and the virtues of military commissions. And it elides an important alternative to trial in either forum – military detention without trial – that today looks more attractive than ever as a means for incapacitating terrorists.
The decision by the Manhattan federal court jury Wednesday in the case of the 1998 U.S. embassy bombings in Africa – the first federal court trial of a Guantanamo detainee – has triggered a predictable political backlash against President Obama. The prosecution was designed to showcase the feasibility of terrorist trials in civilian courts. Instead, it has turned into a near-miss that highlights the risks of those cases.
In response, Rep. Peter King (R-N.Y.) sounded a common theme in demanding that the Obama administration “abandon its ill-advised plan to try Guantanamo terrorists” in federal court – which he termed “absolute insanity” – and in insisting that terrorists instead face trial in military commissions. This is the wrong lesson to draw from this case.
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Benjamin Wittes 