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Ghailani Near Acquittal Due To Nutty Juror

We are amazed and appalled that the outrageous verdict in the in the civilian terrorism trial of Ahmed Ghailani has gotten so little attention. (This latest failure of our justice system seems to have been overshadowed by the reaction to the TSA’s new scanners and pat downs.)

The best analysis still seems to be Andrew McCarthy’s, from last week, via the National Review:

A Compromise Verdict, and No Winners

The Ghailani verdict was irrational, but no more so than the decision to try him as a civilian in the first place.

November 18, 2010 

A federal jury in Manhattan has returned what is transparently a compromise verdict in the terrorism trial of Ahmed Ghailani.

The case centered on al-Qaeda’s bombing of the American embassies in Kenya and Tanzania in August 1998. There were 285 counts, including separate murder charges for each of the 224 people killed. Ghailani was acquitted on 284 of them and convicted on a single charge of conspiracy to destroy government buildings.

That is to say, Mr. Ghailani was found guilty of blowing up buildings — but not guilty of killing the 224 people and injuring 4,085 more, who were inside them.

For the record, the Clinton-appointed judge lavishly praised the jurors for their work.

That sounds like a great victory for Ghailani, but it is nothing of the kind. On the one count of conviction, Ghailani faces a sentence of up to life imprisonment, and there is a mandatory minimum term of 20 years in jail. In that sense, it is a victory for the government: The object of a terrorism trial is to neutralize the terrorist, and one count will do the trick…

We can’t help but suspect that Mr. Ghailani will get the minimum sentence, and that eventually a way will be found to minimize his prison term still further.

By the way, the Obama administration had specifically ordered the prosecutors not to seek the death penalty.

The Obama Justice Department saw the Ghailani case as the perfect opportunity for the civilian system to prove itself. After all, the case had already been tried successfully: In 2001, before the 9/11 attacks, four terrorists were convicted and sentenced to life terms.

Another detail that was undoubtedly kept from the jury. (Although it probably would not have mattered.)

Moreover, while critics of the law-enforcement counterterrorism model emphasize that civilian due process requires the government to hand over too much sensitive intelligence, thereby educating the enemy while we are trying to defeat the enemy, that argument was significantly diminished in Ghailani’s case. Because the case had already been tried in the civilian system, most of the relevant intelligence had already been disclosed. You could contend that this was not a good thing, but for better or worse it had already been done.

But instead of a shining moment for proponents of civilian prosecution, the Ghailani case is a body blow.

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.

Of course Mr. Obama’s prosecutors would not dispute this.

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.

In other words, we now are now giving terrorists who are captured literally on the battlefield (as Mr. Ghailani was in Pakistan, after an eight hour battle) — Fifth Amendment rights.

So that even when they tell all, the information gleaned cannot be used in a trial because it incriminates them. Even their own confessions can’t be presented.

This is some kind of perverse mind game. This is not an attempt to find justice.

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.

Apparently, the ‘hold out’ juror was a middle aged black woman, who at one point sent a note to the judge complaining that she was being "attacked" by other jurors for reaching a different conclusion than the others and refusing to change her mind.

Of course, is exactly the kind of juror that the so-called civil rights groups and the other terrorist sympathizers devoutly hope for. This is their primary reason for demanding civilian trials.

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

Again, where is the logic? Where is the justice? Still, if you have ever served on a New York City jury, you would not be any too surprised.

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.

Unfortunately, we strongly suspect that the Obama administration is secretly thrilled with this outcome. In fact, they probably would have preferred 285 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.

Again, this is what the ACLU and the rest of the cadre of terrorist supporters count on. In a civilian trial, all they need is one ‘nutty juror.’ Or, rather, one juror who shares their sympathies.

(Lest we forget, it was a single ‘nutty juror’ who kept the terrorist murderer, Zacarias Moussaoui, from getting the death penalty, back in 2006.)

And, sad to say, they are quite likely to get one in New York City.

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.

Alas, elections do have consequences. And our system of justice will be reeling from Mr. Obama’s seemingly purposefully destructive decisions for years, if not generations.

This article was posted by Steve on Monday, November 22nd, 2010. Comments are currently closed.

5 Responses to “Ghailani Near Acquittal Due To Nutty Juror”

  1. proreason says:

    Wondering if the “middle aged black woman” was another Obamy auntie.

    Perhaps just figuratively.

  2. canary says:

    The muslim terrorists getting to pick a jury of their peers in America is really working out well.

  3. Gladius et Scutum says:

    When a single nutty juror let Illinois’ Governor Rod Blagojevich walk convicted on only one of 24 counts, I logged on here to find a lot of posters who remembered only that Federal Prosecutor Patrick Fitzgerald had hanged Scooter Libby with a perjury trap. The national media hadn’t bothered to report that the jury had been close to an “all counts” conviction but for single woman.

    She was described as a black woman who lived in the suburbs, listened to NPR and “liberal talk radio”. But the local Fox affiliate in Chicago went a little further. She was the retired director of the Illiinois Department of Public Health, and had actually served under Blagojevich! She had actively campaigned for a relative who ran for public office in Chicago. How did she get on this jury?

    Since the more “legit” outlets have taken down their links, and I won’t link other blogs on Steve’s turf, I’ll suggest that you search “Jo Ann Chiakulas” and “Blagojevich”.

  4. MZmaj7 says:

    Government incompetence is usually the best spokesperson for smaller and smarter government. Let’s hope this verdict leads us away from civilian trials for foreign enemy prisoners.

  5. Liberals Demise says:

    Why even bother with the expense of a trial when our faithful watchdogs are going to roll over and expose our soft underbellies up for a feast.
    We are witnessing our own demise at the hands of some treasonous bastards.

    This is just the first round………..

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