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 Guantanamo, 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 Guantanamo,
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.