Even before the trial began, the trial judge ruled that prosecutors could not call a key witness, the man who had personally sold explosives to the defendant. The court reasoned that the government had learned of the witness during the CIA’s coercive interrogation of Ghailani, so permitting the testimony would have violated what the judge found (and the government did not dispute) were the alien terrorist’s Fifth Amendment rights. Similarly, the jury was not allowed to learn that Ghailani had confessed, and that after the bombing he had become a celebrity in al-Qaeda circles.
That is, swaddled in the protections of civilian due process, Ghailani was allowed to pose before the jury as a victim of circumstances who had no idea that the terror network was preparing simultaneous massacres at American embassies.
It seems to have worked, at least with one juror, who reportedly held out for a complete acquittal for several days. But even without the key witness and the post-bombing evidence, the circumstantial case against Ghailani seemed strong — strong enough to convince most of the jurors.
The verdict is obviously a compromise: In exchange for the holdout’s agreement to convict on one important charge, the other jurors apparently agreed to acquit on all the rest. And like most compromise verdicts, it is irrational. As a matter of law, a member of a conspiracy is responsible for all the foreseeable criminal acts of his co-conspirators. If the jury found that Ghailani was a member of the al-Qaeda conspiracy to bomb government buildings, it made no sense to acquit him of the other charges, particularly the murders of the people killed when the buildings were bombed. That is, a rational jury either convicts him of everything or acquits him of everything.
This irrationality should not be a problem for the Justice Department on appeal. Compromise verdicts are a seedy but well-recognized feature of the criminal-justice system. Trials are extraordinarily expensive and burdensome, and we want them to have finality — that’s why judges push juries hard not to hang. But sometimes, when jurors are at an impasse, the only way they can reach a resolution is by compromising on the charges. It’s not logical, but it’s a decision, and an appellate court won’t look behind it.
But that is the only good news for the Obama administration. It put all its “rule of law” chips on Ghailani and came away with 284 acquittals. Americans will naturally ask: If the civilian justice system couldn’t get this case right, how can we responsibly trust it to handle Khalid Sheikh Mohammed and the other 9/11 plotters, a more difficult case that would require massive disclosure of sensitive intelligence under civilian due-process standards?
Though an opponent of civilian prosecutions for enemy combatants — precisely because I’ve seen their wages up close — I am inclined to cut the DOJ some slack on this result. Ghailani has been convicted and will never be able to kill Americans again. Moreover, what appears to have gone wrong here is the selection of a terrible juror. If there hadn’t been one, if there had been twelve rational people, there would have been 285 convictions and no acquittals. I’ve had nutty jurors before. It happens, and it can happen to any prosecutor.
But it’s far less apt to happen in a military commission, where the jurors are military officers. And that’s the important takeaway here: The Ghailani civilian prosecution was a mistake long before the verdict was returned, not because of the verdict that was returned. This civilian prosecution was a misadventure because politics was permitted to trump justice and, predictably, justice was not done.
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.