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.