The trial of U.S. embassy bomber Ahmed Ghailani was supposed to be a slam dunk and an example of how the civilian court system could be employed to effectively prosecute terrorists. A recent development, however, signaled trouble for the government’s case. Then there were rumors that the jury was not in agreement on all charges against Ghailani. The result was acquittal of 284 out of 285 charges. What does this mean for Ghailani and for the bigger picture?
Andy McCarthy thinks that Ghailani will probably be sentenced to life in prison, so the verdict is not a complete loss. Yet, one can’t help but feel at least some disappointment in the outcome. Why did the government charge Ghailani with 285 counts, leaving the chance that he could be acquitted of many of them? Andy McCarthy says the explanation goes back to when the case was first charged under Attorney General Janet Reno. There was no debate at that time between using civilian trials versus military ones.
Today, however, that debate is an important one. President Obama made the issue of prosecuting the wars an important one during his campaign, and key officials in his administration have made it clear that they prefer using civilian courts over military commissions. In light of this result, Hugh Hewitt wants to know when President Obama and Eric Holder will take questions about the use of civilian trials for terrorists, and if Holder will resign.
If this jury decision was indeed a compromise verdict as some suggest, what does that mean for this case and in the larger debate? Over at the NYT, there is a debate between several legal experts. Andy McCarthy argues that “justice was not done,” and that the case should have been in a military commission instead:
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.
Not everyone in that discussion agrees with McCarthy, however, and there are some other thoughtful opinions there.
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