Congressman Pete Olson

Representing the 22nd District of Texas

Ghailani trial: Misguided and dangerous

November 23, 2010
Op-Ed
By Rep. Pete Olson (R-Texas) - 11/23/10 09:32 AM ET

When the administration announced its plans to try Guantanamo Bay (GTMO) detainees in federal civilian court instead of a military tribunal, the American public was assured by Attorney General Eric Holder that "failure is not an option." He was proven wrong last week when a jury in New York City acquitted Ahmed Ghailani of all but one of 285 counts in connection with the 1998 al-Qaeda bombings of the U.S. embassies in Kenya and Tanzania. His sole conviction was for "conspiracy to destroy American property" in the 1998 Embassy bombings.

Many on the left are hailing this verdict as, if not a rousing success, then, at a minimum, an acceptable outcome. They note that the conspiracy conviction carries with it a minimum of 20 years in prison with the possibility of life without parole. This is true but fails to paint an accurate picture of what happened and what is at stake.

When the Obama administration advocated for a civilian trial for Ghailani, the American public was told that the civilian court's evidentiary rules would not impose an obstacle on the path to a conviction. However, the judge in the Ghailani case used those rules to exclude the testimony of a crucial witness set to testify that he sold explosives to Ghailani. The exclusion of testimony providing such a crucial link triggered doubt in the minds of the jurors and the unraveling began.

There is a definitive reason that military combatants are treated differently than U.S. citizens. This trial exemplifies the difference between civilian trials and military tribunals. The blame for this legal failure rests at the feet of the president and his attorney general. Their plan to try non-citizen terrorists captured on a faraway battlefield in a civilian court of law is misguided and dangerous.

Ghailani is not in any way an inferior "rank-and-file" Al Qaeda operative. The 1998 bombings killed 224 people and injured over 4,000 others. After his success in East Africa, Ghailani became a hero in the jihadist ranks and rose quickly in al-Qaeda to become a top terrorist document forger, bomb-maker and travel facilitator, as well as Osama bin Laden's personal cook. When the FBI issued its first ever "most wanted terrorists" list, Ghailani was on it.

Enemy combatants of the United States belong at GTMO. That is where Ghailani was until the administration canceled his military commission and moved him to New York. His case was unprecedented. Indeed, Ghailani served as the government's test case.

Foreign captured enemy combatants, also known as terrorists, should not be given access to the constitutional rights available to American citizens who are arrested by police officers and held pursuant to constitutional requirements.

Our military commission system provides due process that is based on rules intended for warfare, not for bank robbers and embezzlers. We are a nation at war and it is time that we act like it. The government failed its test. It's time to revisit the hypothesis. If the administration refuses to do so, I am sure the 112th Congress stands ready to examine it.