Hugh Hewitt

Outrage is growing at the intersection of ideology and incompetence that is the jury's collapse in the trial of Ahmed Ghailani, declared acquitted in the murders of 224 innocents, including a dozen Americans.

The outrage is growing as Americans learn more and more about how utterly avoidable this outrageous miscarriage of justice was. John Podhoretz's and Jennifer Rubin's criticisms are among the most pointed and both employ the damning word "debacle" in the title, and Powerline's Scott Johnson and John Hinderaker weigh in with "The Failure Option." Eric Holder who repeatedly declared his confidence in this process should resign and the president should apologize to the nation and especially to the families of the victims whose killed now has been declared not guilty

An email from an individual very experienced in federal criminal proceedings comments:

This smells like a compromise verdict to me. On Monday you had the report that a juror asked to be excused, claiming she was the lone holdout and she feared continuing verbal assaults on her by the other jurors for refusing to agree with them.

I suspect the 11 jurors wanted to convict on all counts, and this one juror refused.

In order to reach a verdict, the 11 jurors agreed to join her in acquitting him on all counts but one, in exchange for her agreeing to convict him on the one count -- which sounds the least serious based on its description in the indictment.

But, the potential sentence for that count is a minimum of 20 years and a maximum of life. Its up to the district judge to determine how much time he will give him, and the judge can consider all the evidence at trial, including the evidence on the acquitted counts.

To take those counts into consideration in determining what sentence to impose, the judge is only required to find by a preponderance of evidence that the defendant was involved in the criminal conduct for which he was acquitted. He's not being punished for the acquitted conduct, rather, that conduct is to inform the judge about the nature of the defendant's character.

I expect the judge will give him life when all is said and done.

I would like to say "of course the judge will give him life," but who knows? The terrorist should be executed --should have been executed long ago. He murdered hundreds, including a dozen Americans, and his compatriots are cheering this carnival of the incompetent.

America cannot protect its citizens abroad nor avenge them even when their killers are captured. First a bare majority of the Supreme Court repeatedly overrode first the decisions of the Executive and then of the Executive and Congress acting jointly, and then hard left ideology invaded the Department of Justice and was empowered by President Obama and Attorney General Holder. The consequences are on display.

People should reread Justice Scalia's dissent in Boumediene, the Supreme Court's decision rejecting the other branches' joint judgment on the subject of the application of habeas corpus to the terrorists. Justice Scalia zeroed in on the arrogance of the Supreme Court in attempting to dictate how these unlawful combatants ought to be dealt with:

But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps troops serving in Afghanistan?) and to classified information. See ante, at 54–55. During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. See Minority Report 14–15. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities. See id., at 15.

And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006) , when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners’ claims, four Members of today’s five-Justice majority joined an opinion saying the following:

“Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary.

“Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means.” Id., at 636 (Breyer, J., concurring).1

Turns out they were just kidding. For in response, Congress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting. As the Solicitor General argued, “the Military Commissions Act and the Detainee Treatment Act … represent an effort by the political branches to strike an appropriate balance between the need to preserve liberty and the need to accommodate the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.” Brief for Respondents 10–11 (internal quotation marks omitted).

But it does not matter. The Court today decrees that no good reason to accept the judgment of the other two branches is “apparent.” Ante, at 40. “The Government,” it declares, “presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.” Id., at 39. What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

The Supreme Court did not overturn the two branches' decision to authorize military tribunals in Boumediene. The five justice majority just made it more difficult to ever execute the terrorist convicted by the tribunals.

But the long proceedings and attendant confusion foisted on the country by the five justicies in this case and those that preceded it allowed the rise of this insane Obama-Holder approach the fruits of which are now on display in New York City.

Hopefully all but the most ideologically blinded of the cheerleaders of this manifestly unworkable and unnecessary process will now recognize their own folly and all future proceedings for unlawful combatants who are not American citizens will take place in military tribunals conducted at Gitmo. Hopefully at least one more Supreme Court Justice will blink in sudden recognition of the awful injustice their "reasoning" has produced and appropriately defer to the combined judgments of the Article I and Article II authorities on a matter of national security.

Hopefully at least some on the the academic left will shut up about that which they nothing about --the difficulty of trying unlawful combatants with civilians in the jury box and prosecutors unable to use evidence both because of evidentiary standards that ought not to be applicable to terrorists captured abroad and because of the the fear of compromising the methods and sources of intelligence gathering.

If these are the results of this case, perhaps the families of the victims of the massacre perpetrated by Ahmed Ghailani will receive some comfort that while the killer was acquitted of these murders, the manifest and shocking injustice of that result has curbed at least for a while the insanity of the American legal left, and especially its most prominent and powerful members, Barack Obama and Eric Holder.

Hugh Hewitt

Hugh Hewitt is host of a nationally syndicated radio talk show. Hugh Hewitt's new book is The War On The West.