An American jury has convicted Ahmed Ghailani of conspiracy and acquitted him of other charges for the 1998 Embassy bombings in an ordinary civilian court in New York. Ghailani faces 20 years to life as punishment for the crime for which he stands convicted. The press is stating that this decision is a disaster. Why? Because the judge excluded evidence tainted by torture and the jury heard the evidence deemed proper and acquitted the defendant on all but one of the charges.
This case is only a disaster for those who wanted to create ersatz justice in a kangaroo military commission system that was and is (as I have explained many times in many places) a third class process hermetically sealing foreigners in a conviction machine.
A jury deliberative process occurred in New York civilian court not a plea deal in a military commission system in which the charges are shaped inconsistent with international law, the evidence is shaped to permit introduction of tortured statements, and the procedure is shaped to create a tilted playing field in favor of the state and against the defendant.
The New York jury deliberated and it struggled. It was terribly difficult for them from published reports. But it is the best that we have.
We can expect from the right scathing criticisms from those who supported the use of torture all these years trying to intimidate the Obama Administration into not holding anymore civilian trials for detainees. Already, we have seen the Obama Administration begin to signal it's unwillingness to try Khalid Sheikh Mohammed in New York because of bipartisan objections to a civilian trial and begin to imagine indefinite detention for him. We can expect from the left a minimum of support for the terrific judge who heard the case and the jury that did its job for fear of being seen as "soft on terror".
To hell with those critiques on the left or the right! Hooray for American Justice!
A great leader of an international criminal tribunal once told me that the test of his tribunal had been not in its convictions of horrendous perpetrators but in its acquittals. Justice Robert Jackson emphasized in 1945 that for judicial norms and judicial forms to be present, a defendant has to be able to prove his innocence in the procedure. That is precisely what happened in this case for Mr. Ghailani for many of the charges against him.
That is the rule of law - not the lynchmob law of military commissions under the current system, not the kind of "law" practices from the old segregated South that Judge James Robertson warned about in his obiter dicta while allowing Hamdan's military commission to go forward about which I wrote about in my "No Third Class Processes for Foreigners" (No Third Class Processes for Foreigners, 103 Nw. U. L. Rev. Colloquy 88 (2008)).
This New York jury and that judge showed that a trial can be had and a verdict rendered on the basis of evidence in a procedure that is consistent with the best of the American system.
That New York jury and that judge has sent a tremendous message to the terrorists of the world that we will not be further stampeded into giving up what is best about our system in fear of all they can throw at us.
That New York jury and that judge have shown the world that - at least these New Yorkers - are not wimps but are willing to stand up and do their civic duty in the highest tradition of our legal system. Would that the rest of the New Yorkers would pipe down and let KSM be tried in New York - scene of the crime. Trauma from crimes is part and parcel of criminal justice - and we always prefer to try the defendant in the jurisdiction where the crime was committed.
That New York jury and that judge showed that secret evidence can be successfully dealt with in an open civilian court or in camera proceedings as needed. Not in some hideaway process with only select few permitted to go there on some obscure island in the Caribbean.
That New York jury and that judge showed once again that the civilian courts are capable of providing swift and sure justice if given a chance after all the fumbling around that has been done with these defendants held at Gitmo.
That New York jury and judge have shown that those in the current or past state who seek to demean the United States through torture can be sanctioned in precisely the way that hurts them the most by having the fruits of their torture revealed, discarded, and by ensuring that the tortured evidence not besmirch the quality of justice that we render. We will not let justice descend to their animalistic level.
We will rather have the accused face the light of day in as open a regularly constituted judicial forum as we have in which we provide our strictest norms built in the bedrock of our Constitution and consistent with our international obligations.
This is a wonderful day for the United States - beginning to come out of a dark night of repression led by those who sought to repress all that is good in us by playing on our fears and who do not trust what is the heart of our system.
Today the beating heart of what America is about overcame the fear, overcame the spinelessness of so many, and overcame the worst in us and made a reasoned decision in accordance with well-founded law. That is something we all should be celebrating.
Let the naysayers hold their hearings! Let the punditry fill the conflictonator with all the vile words they want!
But while that goes on, let us salute Judge Lewis Kaplan and the men and women of that jury who gave Mr. Ghailani a fair day in court. That is what we ask of judicial forms - and we got that here. Wow! What a wonderful day!
Benjamin Davis is a professor at the University of Toledo College of Law.
Suggested citation: Benjamin Davis, Ghailani Verdict: A Victory for American Justice, JURIST - Forum, Nov. 18, 2010, http://jurist.org/forum/2010/11/ghailani-verdict-a-victory-for-american-justice.php.