Terrorist and mass murderer Ahmed Khalfan Ghailani was acquitted this week of 284 counts of murder , deaths that he unquestionably engineered, planned, a brought about in the 1998 bombings of the U.S. embassies in East Africa. He was convicted of just one count: conspiracy to destroy U.S. property and buildings. Since one logically cannot conspire to destroy buildings with people in them and not be guilty of murder, the verdicts make no sense. There was indeed plenty of evidence presented to prove Ghailani guilty of all the murder counts beyond a reasonable doubt, but this was just a bad jury, or to be more precise, a jury with a bad juror. We now know that one women held out against the rest, insisting on acquittal for the murder charges for reasons known only to her. Maybe she thought he was Ghailani. Maybe she wanted to make the Obama Administration, and specifically the Department of Justice, look inept, though it hardly needs any assistance. Maybe she’s a fan of terrorism. Maybe she’s just a dolt….who knows? The bottom line is that a terrorist got away with murder.
Now everyone is spinning (that is, dissembling and excuse-making) like many tops. Republicans are chanting “I told you so!”, reminding us that they always said the Administration’s decision to try terrorists in civilian rather than military courts was a blunder. This is an example of ignoring moral luck: the verdict doesn’t prove a thing. If there hadn’t been one brain-dead juror and Ghailani had been convicted, would that have proven that the Holder D.O.J.’s decision was the right one? No, of course not. What works and what is right are two different things. There is no guarantee that a military tribunal wouldn’t have also acquitted him.
For its part, Obama spokespersons are blaming….wait for it…the Bush Administration, thus breaking the all-time White House record, previously set in 1897 by President William McKinley, of the longest period after a Presidential election spent trying to shift accountability for one’s disasters on the last man to hold the office. (Congratulations!) As Andrew McCarthy notes in his essay at the National Review online, the Obama Administration picked this case assuming that it would validate its rejection of the Bush policy of treating terrorist bombings as acts of war. Attorney General Holder even said (fatuously, foolishly, and unethically) that “failure was not an option,” apparently forgetting that you can’t argue that we have to show the world that everyone gets a fair trial in America and simultaneously declare trials to be certain in their outcome. This fiasco was the responsibility of the Obama Administration: it decided on how to try the case and where; its lawyers made the tactical decision of not appealing a controversial ruling by the judge that kep a key witness off the stand. It lost.
Then we have the fantasy spinners, the glass-is-half-full-even-when-it’s-not types typified by today’s editorial in the Washington Post. Its headline: Acquittal in terror case shows justice system’s strength.
This insults our intelligence. I am completely in favor of the jury system, but it is not without its flaws, and this verdict was the result of a big, obvious, and unavoidable one: sometimes jurors are too lazy, dim-witted, biased, arrogant, or ignorant to discharge their duties. That is not a “strength.” The Post’s smiley-face argument is that the acquittal proves our government can’t dictate verdicts. O.K., though the Post also calls Holder’s attempt to dictate this one in 2009 “brave,” when the proper words are “unethical” and “stupid.” Our government shouldn’t try to dictate verdicts, and juries should be fair and competent.
The fact that some jurors are unfit for the duty of enforcing the rule of law is a weakness in our system. Accept it, embrace it, admit it, complain about it…but don’t lie about it. A mass murderer just got away with his crime, and suggesting that we should celebrate that, as P.J. Crowley, Assistant Secretary of State for Public Affairs, did in a recent Twitter post, borders on Orwellian.
Ethics Alarms 
Breaking News….Trial for Khalid Sheikh Mohammed and others has been set for Connecticut. SHOCKING story at:
http://spnheadlines.blogspot.com/2010/11/terror-trial-set-for-connecticut.html
Peace!
Jack,
I think it’s a bit misleading to say he “got away with murder.” He’s been held captive in Guantanamo Bay since 2004 (and G-d only knows where else) and will spend a minimum of 20 years or longer (likely the rest of his life) in jail. Moreover, even if he had been found not guilty of ALL charges, he likely would have been continued to be held as an “enemy combatant” or some other equally ambiguous term indefinitely.
None of those being tried are likely going anywhere ..
-Neil
I’ll buy that.
Still, an acquittal is an acquittal. Would you agree that Al Capone “got away with murder,” or argue that because he died in prison while serving a sentence for income tax evasion, he didn’t. O.J.’s in jail now…does that mitigate his acquittal?
For once, I am speechless. Or almost. By all means, let’s blame decisions made by Obama and Holder on Bush. When will these two totally egoistic and obtuse characters realize that the longer they use Bush as a whipping boy the worse THEY look?
And let’s face it: until the justice system stops letting educated, “busy” people out of their duty to serve on juries we will continue to have ludicrous verdicts like this one.
We can argue about the appropriateness of trying terrorists in a civilian court all day. The question here is one of the jury system. The jury system can work well… as long as its composition is not reduced to the lowest common denominator. It is the best citizens of a jury pool that should be chosen for the highest profile cases that require their diligence and good character. Typically, these are the first people the defense attorney rejects out of hand, leaving the “dregs” to fall prey to his slick words and appeal to their biases.
The prosecution appeals to biases too, however. Dumb juries also convict innocent people.
Not arguing that, Jack. I’m making the point that the process of allowing ANY of the contending attorneys to throw out up to forty prospective jurors for no stated reason, then to wrangle over the rest, virtually assures a lessening of the quality of the final picks. That, in turn, means that justice will hinge increasingly on people who are either ambivalent over the great responsibility of their positi0n as jurors or are more liable to be swayed by extraneous arguments. I have to wonder how much of this is generated by fears from professional jurists of “runaway juries”? A Grand Jury, in particular, has immense potential power if they understand it and chose to utilize it. This is something that “officers of the court” have traditionally expressed their loathing for in private. They’ve got a good racket going and hate the idea of being marginalized by citizen amateurs. Or military tribunals, for that matter. This is, I contend, a key factor in DoJ’s decision to try terrorists in civilian courts. Without the backing of the trial lawyers, the entire Democrat Party would be fatally marginalized itself.
Jack,
It really comes down to one’s opinion of “getting away with” .. Al Capone was never formally punished for the crime of murder, but his prosecution for tax evasion could be seen as representative of all his crimes. That being said, putting someone in jail for 10 minutes or the rest of h(is/er) life does nothing to redress the original offense, only that it (ideally) offers a comparative punishment, and separates the criminal from the rest of society.
The OJ case is entirely different in that he was tried of one crime, found not guilty and then tried over a decade later for an entirely different offense. In his case, he DID “get away with murder” as, had he not engaged in armed robbery, he would still likely be a free man. Either way, great article.
-Neil