January 29, 2011 | National Review Online

Untangling Ghailani

In Manhattan on Tuesday, Judge Lewis Kaplan gave al-Qaeda terrorist Ahmed Ghailani a sentence of life imprisonment after his conviction on a single count of conspiring to bomb American embassies in 1998. Despite Ghailani’s acquittal on the remaining 284 charges, it was a just result — the one I believed Kaplan, a good judge, would arrive at.

A just result, but an ugly one nonetheless. Ghailani could have received as little as 20 years in prison — which, his lawyers understandably argued, is exactly what Congress had in mind for a defendant who is not responsible for killing anyone. By whacking him with a life term, the judge in effect sentenced Ghailani for the very crimes of which he’d been found not guilty, including a specific charge of conspiracy to kill Americans and every one of the 224 homicide counts.

To draw a comparison, conspiracy to bomb government buildings, the only charge on which Ghailani was convicted, is the same behavior engaged in by President Obama’s friend Bill Ayers. Yet Ayers is, as he put it, “Guilty as sin, free as a bird.” Ghailani will never see the light of day again. The only real difference between them is competence: Ghailani and his fellow jihadists succeeded in carrying out twin massacres in Nairobi and Dar es Salaam; Professor Ayers and the other Weather Underground bombers killed only a few of themselves in a botched effort to assemble explosives.

Ghailani faces life behind bars not because of the conspiracy but because of the dead — even though the verdict says he did not kill them. Judge Kaplan gamely tip-toed around that uncomfortable fact, referring repeatedly to Ghailani’s “confederates” and “the conspiracy,” the better to stress the brute savagery of the plot rather than Ghailani’s ambiguous culpability for its results. But under the “rule of law” — a phrase attorney general Eric Holder has turned into a verbal tic — the plot is what matters most. Ghailani’s culpability for the results was not proven. Still, the murders clearly drove the sentence. “It was a cold-blooded killing and maiming of innocent people on an enormous scale,” said Kaplan, an assertion that rests uneasily with the murder acquittals. The judge added that Ghailani “knew and intended that people would be killed as a result of his own actions and the conspiracy he joined” — a finding tough to square with Ghailani’s acquittal on the charge of conspiracy to kill Americans.

Alas, the rule of law is at war here with reality. The inconsistent, ostensibly irrational verdicts are not representative of what the twelve jurors actually concluded. The lopsided majority of them wanted to convict Ghailani on all the charges — the only verdict that would have made logical sense. One juror, by contrast, wanted to acquit him across the board.

If this standoff had held, there would have been a hung jury and a need to try the case all over again. The clamor around such a mistrial would have featured protests from military-commission enthusiasts because (a) unanimous verdicts are not required for conviction in a non-capital commission case, and (b) the chance of seating an irrational juror on a panel of military officers is significantly smaller than in the crap-shoot that is civilian jury selection. That is, under the rule of law applicable in military commissions, Ghailani almost certainly would have been found guilty on all counts, just as he should have been. That would have been justice.

There was no mistrial, though, because the jury opted for compromise rather than stalemate. The majority caved on 284 counts, the naysayer’s steep price for conviction on one. Compromise verdicts are an unsavory part of our system, some real-world blight on the dreamy “rule of law” rhetoric. They’re the wall stain we hang a picture over because repainting is expensive — and retrials are prohibitively expensive. Defendants, we tell ourselves, are protected from being railroaded: If the compromise conviction is not supported by sufficient evidence, it will be tossed out by the trial judge or the appeals court — no harm done. And if the conviction is backed by sufficient proof, the defendant has nothing to complain about because the compromise acquittals are an undeserved windfall.

Our rationalizations do not make the specter of compromise any less scandalous, however. To appreciate this is to understand how thoroughly politicized the civilian-vs.-military debate on terror trials has become.

The ACLU’s Hina Shamsi extolled Ghailani’s life sentence as a demonstration that “federal courts are not only the right place but the most effective place to prosecute terrorism suspects” — that they work and “military commissions don’t.” Daphne Eviatar of Human Rights First (HRF) piled on, squealing that “you don’t see people like Ahmed Ghailani walking free” once the civilian justice system is done with them. To be sure, sentencing in civilian terrorism cases has been commendably severe. It compares favorably to commission sentencing, which has been erratic. Still, if you’ve been paying attention for the last two decades, you can’t help but ask: What on earth has happened to the ACLU, HRF, and the rest of the Left’s cavalcade of civil- and human-rights crusaders?

It’s a rhetorical question, of course. We know what has happened to them. They have become blindly invested in the quest to eviscerate the Bush administration’s war paradigm for counterterrorism and to reestablish the Clintonian law-enforcement model.

Remember, before there was a Bush administration, these progressive activists were telling us that life imprisonment without parole — the sentence they now celebrate — was punishment too cruel to satisfy our “maturing” society’s “evolving standards of decency.” And during the Bush administration, no self-respecting human-rights lawyer would spew the words “people like Ahmed Ghailani” with such contempt. From 9/11 through Jan. 21, 2009, “people like Ahmed Ghailani” — anti-American jihadists — were a cause célèbre to which organizations like the ACLU and HLF (not to mention law firm’s like Eric Holder’s) devoted bottomless energy and resources, doing everything in their power to get them “walking free” again.

They’ve changed their tune because of their politics. There is now a Democrat of the extreme Left in the White House, so anything goes. It’s that simple.

Let’s consider what happened to Ghailani through the prism of the Left’s rhetoric during the blistering campaign against Bush counterterrorism. Let’s imagine what sorts of things an Obama campaign adviser, say Eric Holder, might have said to a lefty lawyer outfit like the American Constitution Society (ACS) about the case. (And if your imagination is challenged, this excerpt from Holder’s June 2008 speech to the ACS might help.)

The court refused to throw Ghailani’s indictment out despite what human-rights lawyers typically call “outrageous government misconduct” — the CIA’s harsh interrogation methods (“torture”) and the gross violation of the defendant’s rights to counsel and a speedy trial, caused by Bush’s shackling him indefinitely at Gitmo. The jury eventually reached a verdict that was patently irrational and thus unjust, convicting Ghailani of conspiring to murder people for whose murders it found he was not to blame. The government was nevertheless permitted to argue at sentencing that he was a “mass murderer” who “took away hundreds and hundreds of lives,” even though this was exactly what the jury said he was not. Indeed, the government knows Ghailani is a mass murderer mainly because of his confession, which was elicited so abusively that the jury was not told about it. Finally, the judge imposed the heretofore excessively cruel and unusual term of life without parole — based, transparently, on the homicides the defendant was acquitted of committing.

Don’t get me wrong: Every seeming injustice I just catalogued is, under the law, completely defensible. There is bleating about outrageous government misconduct whenever there have been irregularities in the collection of evidence, but indictments are almost never dismissed — particularly when the disputed evidence is suppressed, as it was in Ghailani’s case. Delay in bringing charges is actionable only in the rarest instances, when it is egregiously calculated to undermine the defense (Ghailani was a war prisoner — his Gitmo detention was not about gaining a tactical advantage at trial). Defendants in terrorism cases are routinely imprisoned for years before their cases are heard. Inconsistent verdicts are unseemly but routine and unassailable on appeal. The government is often given to hyperbole at sentencing; it never matters. In imposing a sentence, the law has long authorized judges to take into account all the facts known to them — even conduct for which the defendant has been acquitted or has never been charged. Whether a sentence is appropriate, moreover, is largely a matter of whether it is permitted by the statute that defines the crime of conviction, and here, life imprisonment is a permissible sentence (although not a mandatory one) for conspiring to bomb government buildings.

The irony here is that in the heady Clinton days — to say nothing of the Bush era, during which the Left branded the Justice Department “the American Taliban” — such legal niceties were irrelevant to the ACLU, HRF, and lawyers like Human Rights Watch’s Jennifer Daskal. Prosecutors like me could make all of these winning arguments; to the Left, the law didn’t matter. What mattered was the narrative.

Civilian terror trials were said to be Kafkaesque nightmares in which jurors, cowed by the government-manufactured atmosphere of intimidation, convicted defendants for no better reason than that they were Muslims. If the proof of guilt was undeniable, we were treated to airy lectures about the need to temper justice with mercy, then warned that aggressive investigations and stiff sentences would convey the impression that Islam itself was on trial — fueling terrorist recruitment. And no matter how legally defensible, the gory details of Ghailani’s trial and sentencing would surely have induced blood-curdling screams from human-rights lawyers. In the contest between moral preening and jurisprudential rigor, there would be no doubt which had pride of place.

There is still no doubt. It’s just that the goal posts of moral preening have been moved. Civilian terror trials, once the bane of the lawyer Left’s existence, are now, they tell us, the indispensable measure of our virtue. So, like the Obama Justice Department, where the Bush-deranged Ms. Daskal is now a top adviser, the Bush-deranged ACLU and HRF proclaim the Ghailani case a smashing success, a triumph of the rule of law — and never you mind a few little hiccups.

Times change. The will-to-power Left, though, stays forever the same.

—  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.

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