Victory for the Defense
by Amy Roach Partridge
On November 17, 2010, Ahmed Khalfan Ghailani, an accused Al-Qaeda operative, was acquitted of all but one of the 285 charges brought against him for his role in the 1998 bombings of two US embassies in Africa. Ghailani was the first Guantanamo detainee to be tried in civilian—rather than military—court, and the verdict, delivered just steps from Ground Zero in a Manhattan courthouse packed with press and victims’ family members, was a crushing defeat for the US government.
Sitting beside Ghailani that day as the jury read “not guilty” 284 times, Michael Bachrach ’96, one of the six defense attorneys handling the case, realized his hands were shaking. He stopped filling out his verdict sheet and put his pen down to savor the moment. “I just couldn’t believe it,” says the 36-year-old Bachrach. “We were supposed to lose this case. The only reason the government chose Ghailani to be the first civilian trial was because they felt it was an absolute guaranteed victory.”
The case’s outcome has fueled the debate over whether civilian courts are the appropriate venue for these trials. The Obama administration’s original intent was to show that suspected terrorists could be tried peacefully and effectively in civilian court, but opinions clash over what makes an “effective” outcome. “People who say justice was not done in the Ghailani case are people who only believe justice is served if there is a guaranteed verdict. But that’s assuming a person is guilty before they are tried, and that is not the way our system works,” Bachrach says.
“Our jury came to a well-reasoned, fair verdict. The judge was able to look at the law and come to sound decisions. And we showed that it is possible to try these cases in public with no backlash, no danger to safety,” he adds.
Why Defend a Terrorist?
Devotion to a fair and equitable justice system is a hallmark of Bachrach’s young but already impressive career as a criminal defense attorney. (He has been in solo practice since 2005 and was recently elected president of the New York Criminal Bar Association—the youngest president-elect by some 20 years.) Bachrach is a self-professed idealist—a quality developed through his Quaker schooling and further nurtured at Sarah Lawrence—and a staunch advocate of the right to a fair trial. Though his often notorious clients—who have included alleged mob bosses, madams, and members of international drug cartels—may not always be on the right side of the moral compass, Bachrach feels completely secure in his choice to defend them.
Ghailani was the first Guantanamo detainee to be tried in civilian— rather than military— court, and the verdict was a crushing defeat for the US government.
“I know it sounds idealistic, but I really believe in our Bill of Rights,” he explains. “People say to me, ‘You get clients off on technicalities.’ But those ‘technicalities’ are generally rooted in the Fourth, Fifth, or Sixth Amendment of our Constitution. I don’t view them as technicalities, but rather, as Judge Kaplan [the federal judge presiding over the Ghailani case] said, the rock upon which our nation rests.”
Bachrach also puts his trust in the legal system when it comes to the thornier question of whether his clients are actually guilty or innocent—something he says you can never truly know. “Plenty of people confess to crimes that they didn’t actually commit, for various reasons, and some people who claim their innocence are really guilty. I can’t trust myself to judge others in that way. I assume that the system will work in the end,” he explains.
He also enjoys the challenging nature and dramatic flair of defending criminals; a cushy corporate law job was never an option. “I couldn’t deal with being in a back room somewhere, no matter how much I got paid. I’d be bored to tears,” says Bachrach, who originally hails from Philadelphia but grew up in New York City’s Greenwich Village.
He relishes the chance to get to know his clients and find a way to connect with people with whom he rarely has much in common. He bonded with Ghailani, for example, while discussing religion. Bachrach calls himself “a Jew with Quaker underpinnings” and says Ghailani was fascinated by that combination. “Never did Ghailani, who is Muslim, have any misgivings about working with a Jewish lawyer,” he adds.
Lives on the Line
Early in his career Bachrach was given the opportunity to work on a capital case, and death penalty work quickly became his legal passion. “These cases are literally life or death situations, so the stakes couldn’t be any higher, and the work is immensely challenging,” says Bachrach.
He is firmly opposed to the death penalty, calling it “statesponsored execution.” He has already tried one capital case (which resulted in life imprisonment, a victory for the defense) and worked on six additional death penalty cases—more than many lawyers twice his age. His expertise netted him a position on the faculty of the Bryan R. Shechmeister Death Penalty College at the Santa Clara University School of Law in Santa Clara, California, where he teaches other lawyers how to defend death penalty cases.
Because the government was originally seeking the death penalty for Ghailani, the lead attorneys on the case reached out to Bachrach for his capital trial experience. The death penalty was removed from the case early on, but Bachrach remained and proved his chops as a stellar legal writer, penning nearly every legal brief submitted. He wrote the brief that convinced the judge to disallow a witness whose testimony had been obtained through torture, as well as a 70-page motion concerning Ghailani’s right to a speedy trial. Though that motion was ultimately denied, it could foreshadow a key issue in the upcoming trial of Khalid Sheikh Mohammed, the alleged organizer of the 9/11 attacks.
The Scene Behind the Scenes
The controversial, highly publicized Ghailani trial contained some aspects of courtroom drama befitting TV or the movies. “At one point, I got to argue that what our government had done wasn’t just against our Constitution, but also against international law, the laws of human rights, the Geneva Convention, and even our own military’s rules of conduct. That was something straight out of A Few Good Men,” Bachrach jokes. But much of it was simply good, old-fashioned hard work.
Bachrach puts his trust in the legal system when it comes to the thornier question of whether his clients are actually guilty or innocent—something he says you can never truly know.
Given only 18 months to prepare for the trial, Bachrach and the other lawyers routinely clocked 10- to 15-hour days. While working on classified material for the case, they were restricted by security concerns to one specific room, devoid of cell phones and Internet access. Bachrach spent nearly two cramped months in this room while he was preparing his speedy-trial motion. “When I needed to research a law, I had to leave and go somewhere else to do the research without the evidence in front of me. It wasn’t the most efficient way to work, but for security, it was the right thing to do,” he explains.
The defense decided early on to steer the jury to focus not on Ghailani’s actions, but on whether his intent was malicious. “We conceded that Ghailani did all the individual acts he was accused of—buying the truck that carried the bomb which blew up the embassies, purchasing gas tanks, knowing and associating with members of the group—just that he didn’t realize there was an illegal purpose to his actions,” Bachrach explains. Essentially, the defense said, Ghailani was duped.
Weighing the Outcome
Though the jury ultimately sided with the defense, the verdict did not have much effect on Ghailani’s imprisonment. Because he was declared an “enemy combatant,” the government has the power to keep him jailed indeterminately. In January, he was sentenced to life in prison for the one charge on which he was convicted: conspiracy to blow up a government building.
Bachrach does not see his efforts as futile, however. Convincing the jury that Ghailani did not intentionally murder anyone is a huge reward, he says. “I looked into my clients’ eyes and saw that he felt vindicated. We cleared him of 224 counts of murder, and he was very grateful,” he explains.
Was it the biggest case of his life? Yes and no, says Bachrach. “It was definitely the most high-profile case I’ve been involved in, but I still think the capital case I tried was bigger because whenever death is involved, the stakes are higher,” he explains. Still, he does not play down the impact the Ghailani trial has had—both for the victims and for the future of the nation’s approach to trying suspected terrorists.
“I hope they’ll do more civilian trials,” Bachrach says. “For the victims, having a public trial is the best thing. It is what our justice system is really about—not just about punishment but bringing a sense of wholeness and completeness to every person who is relevant to the case."