Here's a piece of news for you: yesterday, the U.S. government successfully prosecuted a major terror suspect, putting him away for 20 years to life and showing that the civil trials offer a method that is both constitutional and effective for prosecuting the war on terror.
You might have missed it—because most reports have portrayed the verdict as a crushing defeat for the Department of Justice and the Obama administration. Here's the lede of Peter Finn's story in The Washington Post, for example (emphasis added):
The first former Guantánamo Bay detainee to be tried in federal criminal court was found guilty on a single conspiracy charge Wednesday but cleared on 284 other counts. The outcome, a surprise, seriously undermines—and could doom—the Obama administration's plans to put other Guantánamo detainees on trial in U.S. civilian courts.
And that's basically the spin elsewhere, too. First, the back story: Ahmed Ghailani, a Tanzanian, was charged with being a part of the 1998 U.S. embassy bombings in Africa and being a member of Al Qaeda. Captured by Pakistani forces in 2004, he was held at Guantánamo until 2009, when he was put on trial. Prosecutors brought 285 counts against him, but faced hurdles. The biggest blow came in October, when Judge Lewis Kaplan ruled the government couldn't use a key witness prosecutors had become aware of during an interrogation at Guantánamo, in which Ghailani's team claims he was tortured.
Despite this, jurors decided that Ghailani was in fact guilty of one count of conspiracy to destroy government buildings and property. That's worth a 20-year-minimum sentence in federal prison, and he could serve his life behind bars. Good news, right?
Look, there's little debate over whether Ghailani is a bad guy. And it's hard to imagine most Americans wouldn't rather have seen him convicted on more of those counts. But it's still a win. Nonetheless, the Department of Justice is on the run, with Republicans hurling harsh words against the Obama administration. It appears that the administration's already fragile plans to try alleged 9/11 mastermind Khalid Sheikh Mohammed in civil court may now be shattered.
A couple points on Ghailani. First, even for those who opposed trying Mohammed in civilian courts, any attacks on the verdict are a bit strange: as the rule-of-law crowd has long pointed out, these critics are essentially saying the American justice system isn't strong enough. And here, specifically, the likes of Rep. Peter King are saying that the 12 Americans who tried Ghailani are unqualified and wrong, while King—who after all was not in the courtroom throughout the testimony—is right. Second, it's important to remember that had the U.S. government not resorted to tactics that are constitutionally questionable and what is almost certainly torture at Guantánamo, Kaplan wouldn't have been in the position of tossing the star witness. (Liberal Glenn Greenwald argues that a military commission would have had the same problem; it's true that those commissions have not been as uniformly pro-government as their proponents sometimes wish.)
More generally, this is the latest in a string of botched public-relations efforts from the Justice Department, which finds itself repeatedly flat-footed before political attacks from its critics. As outspoken Rep. Anthony Weiner of New York tweeted this morning, "New nominee for most inept messaging by the Obama team: DoJ. Guys, you won! Act like it!"
Take the New Black Panthers Party case, which I've reported about in some depth here and here. The Justice Department appears to be on pretty solid ground with regard to its prosecution of the foundational case: convictions under the statute in question are few and far between, and Justice apparently felt it had taken adequate measures to prevent future interference with voting. Looming behind that case, however, is a larger explosive allegation that the department systematically refuses to prosecute civil-rights cases with white plaintiffs and black defendants.
Justice has repeatedly refused to cooperate with an investigation by the U.S. Commission on Civil Rights, which is heavily tilted to the right because of Bush appointees. As the department surely knows, it's an old law-enforcement trick to snooker suspects by telling them that if they have nothing to hide, they ought to submit to a search. But here, Justice might consider giving in. If there's no problem, the department comes out clean; if there had been a problem and no longer is, Justice officials can say they fixed it; and if there is a problem still, they owe it to Americans to correct it. Their stonewalling only makes them look more suspect.
The Justice Department has also annoyed those on the left with its handling of gay rights issues, including "don't ask, don't tell" and the Defense of Marriage Act. In separate cases, the feds have appealed decisions that struck down the federal laws in question—even as the White House claims it opposes those very laws. Attorney General Eric Holder's defense has been to throw up his hands and say that he has no choice and is obligated to defend federal law. But as NEWSWEEK's Ben Adler wrote in October, the opinion of legal experts on that position is at best not unanimous—and at worst, downright dismissive.
Despite rumors of Holder's demise early on in the Obama administration, he's still hanging around—although Wednesday's verdict won't help him much. But if wants to stick around, he'll need to get a bit savvier about PR. It's hard to be popular when you're the cops, but if Justice won't help itself, no one else will, either.