JURIST Guest Columnist Tung Yin of Lewis & Clark Law School in Portland, Oregon discusses recent terrorism trials…

On August 7, 1998, al Qaeda terrorists simultaneously attacked the US Embassies in Kenya and Tanzania with massive truck bombs, killing a combined 224 people and injuring thousands more. In retrospect, this was a bloody harbinger of the terrorist group’s subsequent suicide boat attack in Yemen in late 2000 against the USS Cole and then the 9/11 attacks in New York and Washington, DC. The federal government indicted a total of 21 persons including al Qaeda founder Osama bin Laden for carrying out the attacks. Earlier this month, one of those 21, Adel Abdel Bary, was sentenced to a term of 25 years imprisonment.

Last year Bary admitted that he had issued public statements on behalf of al Qaeda claiming responsibility for the embassy bombings as well as threats of future attacks and pleaded guilty to threatening to kill, injure, intimidate and damage and destroy property by means of an explosive; conspiracy to make the threat and conspiring to kill US nationals in violation of 18 USC § 2332(a),(b). Bary joins six co-conspirators (Mamdouh Mahmud Salim, Wadih El-Hage, Mohammed Sadeek Odeh, Mohamed Rashed Daoud al-‘Owhali, Khalfan Khamis Mohamed and Ahmed Khalfan Ghailani) as convicted inmates. The others are all serving life sentences. Of the remaining 14 defendants named in the indictment, eight—including bin Laden—have been killed in military strikes after 9/11 and two others died in US or British custody while awaiting trial. One of Bary’s co-defendants Khalid al-Fawwaz is in the middle of his trial as of this writing. The last three defendants, including current al Qaeda leader Ayman al-Zawahiri, are still at large.

Going back to the early days after the 9/11 attacks, members of the Bush Administration hotly debated whether to treat al Qaeda members as criminal defendants or as military targets. Attorney General John Ashcroft argued that the Justice Department was more than capable of trying international terrorists and delivering tough sentences following convictions. Others, including Vice President Dick Cheney, pushed for the defense department to deal with the 9/11 perpetrators on the grounds that only military justice could preserve the secrecy of classified information in order to prevent terrorist defendants from grandstanding and to provide a secure setting. The result initially was a seemingly schizophrenic approach, where seemingly similarly situated suspects were handled in different forums without any discernible reasons. The sentences for Bary, Ghailani and others are obviously harsh, though appropriate, punishments given the horrifying nature of the crimes against American and foreign lives and property. They also provide strong evidence to counter the contention that Article III courts face severe, if not insurmountable, obstacles in trying international terrorists and that such suspects should simply be sent to Guantanamo Bay. In this regard Attorney General Ashcroft was correct that federal courts could try terrorists successfully and fairly.

The measure of success is judged not just by convictions and sentences but also the ability of the trial courts to recognize and address violations of defendants’ rights. For example, during pre-trial litigation, Ghailani’s lawyers persuaded the district judge to suppress the testimony of a witness whom the government learned of only through coercive interrogation of Ghailani. In so ruling the district judge applied the general doctrinal rules regarding fruit of the poisonous tree—the discovery of the witness’s existence resulted from compelled self-incrimination, and thus could be admitted only if the constitutional violation had been attenuated, which the judge ruled had not occurred. By contrast had the matter proceeded in a military commission, the court might have been able to admit the witness’s testimony under the more lenient rules in effect.

This was a significant ruling, because the witness, Hussein Abebe, was, according to the prosecutors, the only person who could tie Ghailani to the explosives used in Tanzania. It is impossible to quantify with certainty the impact on the government’s case of losing Abebe’s testimony, Ghailani was acquitted of all but one of the over 280 charges against him. (Had Ghailani successfully appealed his conviction on the one count, collateral estoppel stemming from the acquittals might have further harmed the prospects on retrial.)

On the other hand we should hesitate before proclaiming the absolute superiority of Article III courts. It is true that with the group of embassy defendants who have actually been prosecuted, all but one were incapacitated fairly soon after the terrorist incidents. The nation did wait 17 years to impose punishment on Bary, but nearly all of that time is due to the fact that he was arrested and prosecuted in the UK in 1998 for terrorism-related offenses, serving his sentence before being extradited to the US in 2012. Five of the other six convicted defendants were arrested and extradited to the US in short order. The one exception was Ghailani, who remained loose until 2004. It is with the remaining defendants that we see the primary weakness of civilian courts: trying the defendant requires physical custody of that person.

Of the eight defendants who were killed in combat settings, only one was killed before 2006; five, including bin Laden, survived until at least 2009, or eleven years after the embassy bombings. Continued efforts to apprehend those suspects to bring them to stand trial might have succeeded eventually—or maybe not. Before 9/11 location did not play a major role in determining whether suspects could be captured and sent to the US. El-Hage was arrested in the US, Salim was arrested in Germany, al-‘Owhali was arrested in Kenya, Odeh was arrested in Pakistan and Mohamed was arrested in South Africa.

Following the American-led invasions of Afghanistan in late 2001 and Iraq in 2003, various regions in the Middle East and Southeast Asia became havens for fleeing terrorists. Thus, although Pakistan was formally allied with the US against al Qaeda, the central government had lost control over the northwest part of the country, which may be one of the reasons that Osama bin Laden was able to remain in his hideaway in Abbottabad for years before being killed in a secret mission carried out by Navy SEALs. (A more sinister possibility, argued by a New York Times reporter, is that the Pakistani intelligence service was secretly aiding bin Laden.) Similarly, Ali, Msalam and Swedan were all killed in Pakistan by US drone strikes in 2009 and 2010, while Fadhil was reportedly killed in Afghanistan sometime after 9/11. Even if some of those suspects could have been captured alive instead of targeted for military strikes, it would have been with delays at least at long as that between 1998 and their ultimate demises eleven or more years later. As Blackstone quipped, “justice delayed is justice denied.”

The successful convictions of Bary, Ghailani and others thus demonstrate that there can be a definite place for federal court prosecutions of terrorism suspects, but it is equally important to keep in mind that had justice been left entirely to the civilian system, more than half of the embassy bombing defendants would likely still be free, possibly planning or executing further terrorist atrocities. The example of Bary et al. suggest that Attorney General Eric Holder’s short-lived proposal to prosecute 9/11 mastermind Khalid Sheikh Mohammed (KSM) in federal court in New York was not hopelessly naïve (though perhaps doomed by his insistence that it take place in New York City, which would have triggered immense security costs and caused untold disruptions, which in turn led prominent New York politicians to oppose the plan). But KSM was captured as a result of a covert, joint operation between paramilitary CIA and Pakistani intelligence operatives.

In short, the dual-track approach that the US has operated under since 9/11, with both federal court prosecutions and use of military force, has proven to be more effective than either approach alone.

Tung Yin is a Professor of Law at Lewis & Clark Law School in Portland, Oregon. His academic research has focused on national security law and terrorism and the law.

Suggested citation: Tung Yin, Embassy Bomber Faces Justice; What Do These Cases Say About Terrorism Prosecution?, JURIST-Academic Commentary, Feb. 20, 2015,http://jurist.org/academic/2015/02/tung-yin-embassy-bomber-faces-justice.php.