A Compromise Verdict, and No Winners

The Ghailani verdict was irrational, but no more so than the decision to try him as a civilian in the first place.

By Andrew C. McCarthy
http://www.nationalreview.com
November 18, 2010 12:00 P.M.


A federal jury in Manhattan has returned what is transparently a compromise verdict in the terrorism trial of Ahmed Ghailani.

The case centered on al-Qaeda’s bombing of the American embassies in Kenya and Tanzania in August 1998. There were 285 counts, including separate murder charges for each of the 224 people killed. Ghailani was acquitted on 284 of them and convicted on a single charge of conspiracy to destroy government buildings.

That sounds like a great victory for Ghailani, but it is nothing of the kind. On the one count of conviction, Ghailani faces a sentence of up to life imprisonment, and there is a mandatory minimum term of 20 years in jail. In that sense, it is a victory for the government: The object of a terrorism trial is to neutralize the terrorist, and one count will do the trick.

But beyond that, the Justice Department walks away from the case as a big loser. That’s because the Obama administration made this much more than a terrorism trial. It cherry-picked the case to be a demonstration that the civilian criminal-justice system is up to the task of trying terrorists. This was to be the “turn the clock back” moment — specifically, back to the Clinton years, when Eric Holder was deputy attorney general and when prosecution in civilian courts was the U.S. government’s principal response to the jihadist onslaught that began with the 1993 World Trade Center bombing.

In this June 9, 2009 file courtroom sketch, Guantanamo detainee Ahmed Khalfan Ghailani (l.) listens as his civilian lawyer Scott Fenstermaker (r.) speaks at his arraignment. (Elizabeth Williams/AP/File)

This was the model that Barack Obama campaigned on and that the anti-anti-terrorist Left takes as an article of faith. No more Bush-era counterterrorism: no enemy combatants, no military commissions, no indefinite detention, and certainly no aggressive interrogation. The president and his attorney general are adamant that “the rule of law” must be restored.

Never mind that the laws of war — which support all the Bush-administration measures — are the rule of law during wartime. Never mind that at no point in our history have the nation’s wartime enemies been given access to the civilian justice system and endowed with all the protections and presumptions that American citizens receive. To the Obama Left, the law-enforcement approach is effective national security, a way to win the hearts and minds of Muslims and consequently make ourselves safer. It makes no difference that the country was demonstrably unsafe — and repeatedly attacked — during the Clinton years. Nor does it matter that people in Islamic countries have no idea of the legal differences between American civilian and military proceedings — they care only that we are imprisoning Muslims, not about the abstruse details of our basis for doing so.

The Obama Justice Department saw the Ghailani case as the perfect opportunity for the civilian system to prove itself. After all, the case had already been tried successfully: In 2001, before the 9/11 attacks, four terrorists were convicted and sentenced to life terms. Moreover, while critics of the law-enforcement counterterrorism model emphasize that civilian due process requires the government to hand over too much sensitive intelligence, thereby educating the enemy while we are trying to defeat the enemy, that argument was significantly diminished in Ghailani’s case. Because the case had already been tried in the civilian system, most of the relevant intelligence had already been disclosed. You could contend that this was not a good thing, but for better or worse it had already been done.

But instead of a shining moment for proponents of civilian prosecution, the Ghailani case is a body blow.

Even before the trial began, the trial judge ruled that prosecutors could not call a key witness, the man who had personally sold explosives to the defendant. The court reasoned that the government had learned of the witness during the CIA’s coercive interrogation of Ghailani, so permitting the testimony would have violated what the judge found (and the government did not dispute) were the alien terrorist’s Fifth Amendment rights. Similarly, the jury was not allowed to learn that Ghailani had confessed, and that after the bombing he had become a celebrity in al-Qaeda circles.

That is, swaddled in the protections of civilian due process, Ghailani was allowed to pose before the jury as a victim of circumstances who had no idea that the terror network was preparing simultaneous massacres at American embassies.

It seems to have worked, at least with one juror, who reportedly held out for a complete acquittal for several days. But even without the key witness and the post-bombing evidence, the circumstantial case against Ghailani seemed strong — strong enough to convince most of the jurors.

The verdict is obviously a compromise: In exchange for the holdout’s agreement to convict on one important charge, the other jurors apparently agreed to acquit on all the rest. And like most compromise verdicts, it is irrational. As a matter of law, a member of a conspiracy is responsible for all the foreseeable criminal acts of his co-conspirators. If the jury found that Ghailani was a member of the al-Qaeda conspiracy to bomb government buildings, it made no sense to acquit him of the other charges, particularly the murders of the people killed when the buildings were bombed. That is, a rational jury either convicts him of everything or acquits him of everything.

This irrationality should not be a problem for the Justice Department on appeal. Compromise verdicts are a seedy but well-recognized feature of the criminal-justice system. Trials are extraordinarily expensive and burdensome, and we want them to have finality — that’s why judges push juries hard not to hang. But sometimes, when jurors are at an impasse, the only way they can reach a resolution is by compromising on the charges. It’s not logical, but it’s a decision, and an appellate court won’t look behind it.

But that is the only good news for the Obama administration. It put all its “rule of law” chips on Ghailani and came away with 284 acquittals. Americans will naturally ask: If the civilian justice system couldn’t get this case right, how can we responsibly trust it to handle Khalid Sheikh Mohammed and the other 9/11 plotters, a more difficult case that would require massive disclosure of sensitive intelligence under civilian due-process standards?

Though an opponent of civilian prosecutions for enemy combatants — precisely because I’ve seen their wages up close — I am inclined to cut the DOJ some slack on this result. Ghailani has been convicted and will never be able to kill Americans again. Moreover, what appears to have gone wrong here is the selection of a terrible juror. If there hadn’t been one, if there had been twelve rational people, there would have been 285 convictions and no acquittals. I’ve had nutty jurors before. It happens, and it can happen to any prosecutor.

But it’s far less apt to happen in a military commission, where the jurors are military officers. And that’s the important takeaway here: The Ghailani civilian prosecution was a mistake long before the verdict was returned, not because of the verdict that was returned. This civilian prosecution was a misadventure because politics was permitted to trump justice and, predictably, justice was not done.

— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.