Reaction to the Reaction to the Ghailani Verdict

by Joshua L. Dratel

The polar reactions to the verdict in the trial of Ahmed Ghailani could not be less contrived, as they represent the ultimate in confirmation bias.  I don’t believe a single opinion was changed by the result: the Peter Kings and his ilk have always been against using the federal courts for terrorism trials.  After all, they howled for military commissions or military detention, or indefinite detention without trial at all, even when the defendant pleaded guilty and provided a full confession, as was the case with the would-be Times Square bomber (Faisal Shahzad).  So why would they like a trial, even one that ended with a genuine prospect of life imprisonment, any better?

Nor did any of them pledge to support federal court prosecutions as the proper forum for trying terrorists in the event the Ghailani trial ended in conviction on all counts and without any other problems. Thus, their criticism of the outcome, and their efforts to leverage it to oppose further federal prosecutions of terrorists, is as unsurprising as it is reflexive.

Conversely, I have yet to see any proponent of federal prosecutions for terrorists announce a change of position as a result of the Ghailani trial.  In fact, they have found much comfort in the entirety of the trial, from its transparency, its process, its vigorous litigation, and its ultimate mixed result (indicating a jury that considered the evidence carefully and conscientiously).

Of course, changing the minds of the politicians, pundits, and practitioners has never been the objective.  Rather, it has been to win the battle of public opinion, and convince . . . , uh, . . . precisely whom I do not know.  Views on this issue are so entrenched that the “debate” occurs in a meaningless vacuum.  Certainly the Obama administration is impervious to pressure to do the right or appropriate or productive thing (whatever that might be), as it is now so demonstrably terrified of its own shadow, and that of Congress as well, that its apparent strategy of choice is not to act at all.

Unfortunately, the media has uniformly failed to recognize this reality, instead presenting arguments and counterarguments as if those arguments were capable of persuading anyone or that they were even designed to do so. Nah. They are pure sideshow, and a waste of time, space, and energy.  Yet the media perpetuates the fiction that the reactions to the Ghailani verdict are somehow tailored to that particular result, rather than mere selectivity in acknowledging facts and repetition of a previously formed intractable opinion.

That Ghailani’s prosecution proceeded at all, much less uneventfully, through the federal courts was an accident of inattention, as he was quickly transferred to New York in June 2009 without much fanfare or, as a result, opposition from those who would eliminate federal trials for those charged with terrorism (or perhaps even those charged with other crimes, but who are allegedly involved in terrorism – it is hard to tell where the desired prohibition on federal courts begins or ends).  Thus, while the 9/11 case, and Khalid Sheikh Mohammed in particular, attracted the lion’s share of controversy, the Ghailani case puttered along under the radar like any other, in the process refuting the usual canards repeated by mainstream media as the drawbacks of federal trials for terrorists:  no security issues, no inconvenience for the local population, no get-out-of-jail-free card for the defendant, no soapbox for terrorist ideology, no problems preserving the confidentiality of classified information.

Not that that matters.  Intransigence has triumphed, and the practice of using facts to fashion opinions has yielded to using opinions to fashion facts.  This is certainly not the first manifestation of this regrettable mode of analysis, and likely not the last, either.  It is just depressing that it appears more common now than ever, and that it impairs discussion and resolution of important issues involving law, justice, and national security.

In retrospect, perhaps the only person whose mind may change about the efficacy of federal trials versus military commissions (or indefinite detention) could be the juror who seems to have held out for acquittal, only to succumb to the mistaken rationale that a conviction on Count 5, the seemingly less serious offense, would yield a moderate sentence for Mr. Ghailani.  Indeed, it is supremely ironic that they jury of ordinary citizens who heard the evidence (rather than assuming its content or reading a newspaper article) managed to compromise despite strongly held beliefs, while those interpreting that verdict from afar appear unable and unwilling to do so.

Copyright © 2010 by Joshua L. Dratel