Guantanamo Detainee To Be Charged - NPR's All Things Considered

The Obama administration on Thursday announced that for the first time, a Guantanamo detainee is coming to the United States for trial. The detainee, Ahmed Khalfan Ghailani, is accused of participating in the 1998 bombings of American embassies in Africa.

"Preventing this detainee from coming to our shores would prevent his trial and conviction, and after a decade, it is time to finally see that justice is served," President Obama said in a major national security speech delivered at the National Archives Thursday.

Civilian terrorism trials are not new to American courtrooms. The list of accused terrorists tried in the United States is long: Sheik Omar Abdel-Rahman was accused of plotting to blow up New York landmarks. Zacarias Moussaoui pleaded guilty to conspiring to carry out the terrorist attacks of Sept. 11, 2001. There was Richard Reid, aka the "shoe bomber." And there are many, many others.

What makes the Ghailani case different is that this detainee has been at Guantanamo Bay for 2 1/2 years.

Susan Hirsch of George Mason University has a personal connection to the case. Her husband was killed in the blast at the embassy in Tanzania.

"For me, justice through a trial is one important response to terrorism," says Hirsch. "Given what we've been through in the last eight years, it's a return to the rule of law and using our legal system to respond to even the worst crimes."

Weighing Costs

But Obama said not every terrorist can be brought to trial.

This is something former Attorney General Michael Mukasey knows well.

"There are costs, benefits and challenges," says Mukasey. "It depends very much on the detainee and the nature of the case."

Before Mukasey became attorney general, he was a federal judge who heard terrorism cases in New York.

In his first interview since leaving the Justice Department, Mukasey told NPR that one cost of terrorism trials is financial. Security can make a terrorism case much more expensive than a typical criminal trial.

"But putting that aside," says Mukasey, "there can be a cost in disclosure of information — including intelligence that in the nature of a public trial would come out in public or be discovered by the defendant."

For example, he described a trial he presided over as a judge in which Osama bin Laden was named in a list of unindicted co-conspirators, "and [bin Laden] was then made aware not only that his identity was known but also [of] the identity of the other co-conspirators who were then known to the government," says Mukasey.

Given that some costs of a terrorism trial cannot be anticipated, Mukasey says weighing the costs of such a trial against the benefits is "a very, very difficult balance to strike. I think that there have to be different kinds of proceedings for different kinds of cases."

Moving Forward

That is exactly what Obama proposed in his speech.

"Going forward, these cases will fall into five distinct categories," said Obama.

He said some people will be transferred to other countries. Others could be released into the U.S. Some will be tried in military commissions. Obama said "the toughest issue we will face" is a group that could be held indefinitely without trial.

Then there are people like Ghailani, who could be tried as criminal defendants through the normal court system.

Each of those options presents its own unique challenges. And there are groups that object to each option for different reasons.

Law professor Glenn Sulmasy of the U.S. Coast Guard Academy says relative to some of the other cases, Ghailani's trial may actually be quite straightforward.

"Although Ghailani was housed at Guantanamo Bay, the crimes he's accused of all occurred prior to 9/11," says Sulmasy. "Back then the country and the U.S. policy towards terrorism was a pure law enforcement approach."

That means Obama can cross one Guantanamo detainee off his to-do list. There are 239 remaining.