Not since the infamous acquittal of O.J. Simpson has the American jury system so utterly failed as it did this week in acquitting on all but one charge former Guantanamo detainee Ahmed Ghailani, an al-Qaida terrorist responsible for the deaths of 224 people. A New York City jury managed to convict Ghailani on only one charge -- conspiracy to destroy U.S. government property -- in the attack on U.S. embassies in Kenya and Tanzania in 1998.
But the failure is not just that of one criminal jury but of the Obama administration, which decided to try enemy combatants in American criminal courts. Instead of admitting their serious error in judgment, administration officials said they were "pleased" with the outcome because Ghailani would serve a minimum of 20 years in prison for his crimes. Judge Lewis A. Kaplan, a Clinton-appointed federal judge who presided over the case, was even more reprehensible in his remarks after the trial. Kaplan complimented the jury on its verdict, suggesting that "American justice can be rendered calmly, deliberately and fairly by ordinary people, people who are not beholden to any government, not even ours."
The jury heard hard evidence that Ghailani purchased the truck used in the bombing in Tanzania; obtained some of the oxygen and acetylene gas tanks used in the bombing; stored the electronic detonators used in the attack, one of which the FBI recovered in Ghailani's house along with TNT traces; and gave the actual suicide bomber the cell phone used in plotting the attack. The jury did not hear evidence from a witness who sold Ghailani the TNT used in the attack because the judge barred it, claiming that Ghailani led federal prosecutors to the witness only after Ghailani was subject to coercive interrogation methods at Guantanamo. But even without this direct testimony, there was more than enough evidence to convict on the more serious charges.
How is it possible that Ghailani conspired to destroy the embassy but is not responsible for the deaths and destruction that occurred when the conspiracy was carried out? Only the jurors know how they managed to defy logic and common sense and ignore irrefutable evidence. Juries often make mistakes in rendering judgment, letting off the guilty and, less often, convicting the innocent. In the latter case, our justice system has a failsafe allowing for judicial review and appeal that can rectify the injustice. And even in the former, the acquittal of a guilty party does not always pose a threat to society.
But this case is different. Ghailani was not guilty of criminal acts but acts of war. He was a soldier in a vast network that has declared war on the United States. He was captured in Pakistan in 2004 and transferred to Guantanamo in 2006. The courts have decided that enemy combatants such as Ghailani cannot be held indefinitely without facing charges. But it was the Obama administration's appalling choice that those charges be brought not in a military but in a civilian criminal court. And one of the reasons they pushed ahead with Ghailani's trial under this new policy was that they viewed it as a slam-dunk for conviction on most, if not all, charges.
Critics have warned from the beginning that this was sheer folly. Jury nullification is a fact of life in U.S. courtrooms today. Juries, especially those comprised of jurors with axes to grind, ignore evidence when they feel like it. And what more likely place to encounter jury nullification than in a case involving highly charged issues such as the war on terror, detention at Guantanamo Bay, and coercive interrogation?
The only good that might come of this travesty of justice for the 224 who died in Tanzania, including a dozen Americans, is that the Obama administration will now have to rethink its disastrous policy. Enemy soldiers who commit crimes against the United States should be tried in military courts. Maybe now Attorney General Eric Holder and President Obama will come to their senses.<
Linda Chavez is chairman of the Center for Equal Opportunity and author of Betrayal: How Union Bosses Shake Down Their Members and Corrupt American Politics .
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