By Benjamin Wittes & Robert Chesney
The Ghailani verdict is going to play badly–very badly–in the political arena. It won’t matter that he will receive a minimum of a 20-year prison sentence and could well spend the rest of his life behind bars. It won’t matter that the same evidentiary problems that impeded his prosecution in federal court would likely have arisen in a military commission as well. It won’t matter either that a conviction in a military commission would have been vulnerable to more lines of appellate attack than this one will be. The only thing that will matter in the political sphere will be that prosecutors won a conviction on only one of 285 criminal counts–that they came within a hair’s breath of losing the case entirely. The verdict has offered a vision of the nightmare scenario–acquittal in a terrorism case involving a high value detainee–and that vision will be enough to ramp up the already intense pressure not to try something like this again.
Unfortunately, all of these factors that won’t matter in the political sphere actually do matter to a reasonable consideration in light of the verdict of the Obama administration’s decision to pursue this case in federal court.