The Ghailani Verdict
There were two hundred and eighty-five counts in the indictment of Ahmed Khalfan Ghailani, who was accused of involvement in the 1998 African embassy bombings, and he was convicted of one. The verdict came after five days of deliberations, four weeks of trial, a year in a Manhattan jail, three years in Guantánamo, and two in a darker sort of prison, a "black site" run by the C.I.A. We don't yet know what the jurors' reasoning was on the counts on which they acquitted him-they may have just felt that the case was weak-but they reasoned, and after years in which our government did not act reasonably, that is a victory. That one count, of conspiracy to destroy government buildings and property, isn't so flimsy either: it carries a sentence of twenty years to life.
The Times noted that the years during which we shuffled Ghailani around meant that "the prosecution faced significant legal hurdles getting his case to trial and then winning the conviction." Let's be clear: if time in the extra-judicial limbo of black sites, and the torture that caused some evidence to be excluded, makes prosecutors' jobs harder, the problem is with the black sites and the torture, and not with the civilian trials that might eventually not work out quite the way everyone likes. It's a point that bears some repeating. Our legal system is not a machine for producing the maximum number of convictions, regardless of the law. Jurors are watching the government, too, as well they should. Ghailani today could be anyone tomorrow.
Those two hundred and eighty-four acquittals will, nevertheless, be thrown around in the argument over whether to bring Khalid Sheikh Mohammed and his cohorts to trial in New York, the city where they are accused of murdering thousands of people on September 11th. They ought to face justice here. Eric Holder is expected to announce a decision on that soon. A report last week in the Washington Post suggested that the Administration was fearful of the reaction to either a civilian trial or its lesser counterpart, a military commission in Guantánamo, and so was considering not trying him in either-just keeping him locked up indefinitely. That would be a scandal. The judge in Ghailani's trial rejected his argument that his right to a speedy trial had been denied, but one wonders if, at some point, that will come into play for other defendants-especially if the reasons for delaying a trial are as frankly political as the Post article made it sound, rather than connected, however wrongly, to intelligence-gathering concerns. Most important, where is the day in court for the people who died in the Twin Towers? We talk about trials as though they are gifts that bad people don't deserve. Trials are for the rest of us, most of all, and only strengthen our system.
The A.P. notes that the judge in the Ghailani case gave the government "broad latitude to reference al-Qaida and bin Laden. It did-again and again. ‘This is Ahmed Ghailani. This is al-Qaida. This is a terrorist. This is a killer,' Assistant U.S. Attorney Harry Chernoff said in closing arguments." (It says a lot for the strength of the jury system that those invocations were not, in themselves, enough to make the jurors just fill out the forms and convict.) The defense said in closing "Call him a fall guy. Call him a pawn....But don't call him guilty." Is that what the jury did? One wonders if our unwillingness to bring more prominent defendants to court is, in its own way, creating another hurdle for the prosecution. The claim that you're the fall guy is less convincing if the big guy is being prosecuted, too. All the more reason to put K.S.M., who nobody would call a pawn, on trial, as soon as possible.
And what did we really learn from the Ghailani trial-the trial itself, not the verdict? We learned that this is not as hard as people made it sound. The jurors had rough moments, but, after one sent a note to the judge, they kept talking. Ghailani, again, has been in Manhattan for a year, and we've managed. So let's get the next trial going.
© 2010 The New Yorker