So What If He’s Bin Laden’s Son-in-Law — What’s That Got To Do With Anything?

by Andrew C. McCarthy

The one thing you know about Suleiman abu Ghaith is one thing the jury in his terrorism trial won’t get to find out – namely, that he is Osama bin Laden’s son-in-law.

The New York Times’ Ben Weiser reports that prosecutors in the trial, in which jury selection has begun, have agreed not to introduce evidence that Abu Ghaith is married to one of the late al-Qaeda emir’s daughters. It is alleged that Abu Ghaith became a part of bin Laden’s inner circle; he is even referred to as al-Qaeda’s consigliere. Yet, he evidently denies membership in the organization and complicity in its anti-American jihad. Thus, the notion that his close familial tie to the boss of the enterprise is irrelevant or too prejudical for the jury to consider seems ridiculous.

I have been involved in more organized crime cases than I care to remember, and family ties are a commonplace. It is elementary to prove them. They are not unfairly prejudicial. (The point of evidence is to prejudice the party against whom it is offered.) In the trial biz, unfair prejudice means the probative value of the disputed evidence is substantially outweighed by the danger that the jury’s passions will be irrationally inflamed, that jurors will be hopelessly confused, or that proving the evidence will be an enormous waste of time. Most evidence has no such potential — it gets admitted and, if necessary, the judge gives an instruction about its proper and improper uses.

A close family tie can be very relevant in a conspiracy case. It can explain, for example, why a person was trusted by a secret criminal organization and how he happened to achieve a high-ranking position in that enterprise. There is no real danger of prejudice because virtually everyone knows that you are not a criminal or a terrorist just because you are related to one. If that were not obvious enough (a) the judge can give that instruction to the jury to make it clear, or (b) the defense could prove, for example, that our government allowed several members of the bin Laden family leave the U.S. after 9/11 because — it was said — they were not terrorism suspects.

Perhaps the government’s proof is so overwhelming that it can afford to act like it’s playing with the house money. I hope the prosecutors are right about that. The last time an enemy combatant was tried in Manhattan as an ordinary civilian defendant, the jury acquitted him on 284 out of 285 counts.

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