ANDREW McCARTHY: JUSTICE WAS NOT DONE
New York Times
Andrew C. McCarthy, a former federal prosecutors, is a senior fellow at National Review Institute, a contributing editor at National Review, and author of “Willful Blindness: Memoir of the Jihad.”
Critics of the Obama administration’s use of the civilian courts to try enemy combatants in wartime – and I am one – understandably point to Wednesday’s stunning verdict in the Ahmed Ghailani terrorism trial as a powerful demonstration that the policy is wayward.
With a military commission, the government would not be rolling the dice with a civilian jury.
Ghailani was acquitted on all but one of the 285 counts, including all 224 murder charges. These numbers are striking, but they shouldn’t be overstated. After all, the principal goal of a terrorism prosecution is to neutralize the terrorist, and Ghailani will almost certainly be sentenced to life imprisonment on the one count of conviction, conspiracy to bomb government buildings. Given that the Justice Department chose not to seek the death penalty, Ghailani would not be facing a more severe sentence even if he had been convicted on every count.
But the blunt fact is that justice was not done, as Attorney General Eric Holder boldly promised it would be. This case did not belong in the civilian justice system, and that was abundantly clear long before the jury’s compromise verdict.
Construing civilian due process standards, the trial judge denied prosecutors the ability to call the crucial witness who would have testified to Ghailani’s purchase of the TNT used in the 1998 embassy bombings. Taking a huge chance, the Justice Department elected not to appeal that decision – betting that its remaining evidence would be enough. The government’s reluctance to litigate the admissibility of Ghailani’s confession (during which he identified the TNT seller) also meant the jury would learn of neither his admissions nor the fact that he became a celebrity in al Qaeda circles after the bombings. Thus, civilian due process and what now seems like Justice Department overconfidence gave Ghailani an opportunity falsely to portray himself as an innocent dupe, and he exploited it.
He would not have been able to do that in a military commission trial. In a commission, moreover, there would have been a jury of military officers. The government would not have been rolling the dice on the selection of a civilian jury, where it’s always possible to get an irrational juror who frustrates the deliberations, which may well have happened here.
Even if the jury had convicted on all the counts, honest observers would still have had to concede that using the civilian court significantly complicated the government’s ability to convict a terrorist responsible for killing hundreds of people.
Given that military commissions, a firmly rooted method for handling war crimes, have been approved by Congress and acknowledged as legitimate by the Obama administration, it was reckless to run these risks just to make a political point about the effectiveness of civilian justice — and, no doubt, to try to lay the ground work for a civilian trial of Khalid Shaikh Mohammed and the 9/11 plotters.
In making that political decision, the administration banked on a repetition of the 2001 trial of the same indictment, in which four defendants were convicted of bombing the embassies in Eastern Africa. To the Justice Department, those convictions suggested a high likelihood that Ghailani could be convicted under civilian due process standards. And the prior trial meant the best argument against civilian prosecutions – namely, the need to disclose sensitive intelligence – would be muted because, for better or worse, much of the discovery in the case had already been disclosed in the first trial.
Obviously, the Justice Department expected to be able to crow about 285 convictions as a demonstration of the civilian system’s effectiveness. It is irrational to convict on a conspiracy to bomb and not on the actual bombing and related murders, so it was a good bet that finding Ghailani guilty of any counts would lead to convictions on all counts. But because it appears one juror was a hold out, the other jurors had to horse-trade in order to avoid a hung jury and a burdensome retrial. Compromise verdicts, however scandalous they may seem, are an accepted part of civilian justice, elevating our interest in finality over the integrity of the result. Still, the fact that we abide them does not mean they meet our expectations of justice.
The civilian prosecution of Ahmed Ghailani was a misadventure because politics was permitted to trump justice and, predictably, justice was not done.
Topics: Ahmed Ghailani, Law, Terrorism
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