Global Investment Watch

“There is a definitive reason that military combatants are treated differently than U.S. citizens. This trial exemplifies the difference between civilian trials and military tribunals. The blame for this legal failure rests at the feet of the president and his attorney general. Their plan to try non-citizen terrorists captured on a faraway battlefield in a civilian court of law is misguided and dangerous.”

As noted by Representative Olson and voiced by many others in Washington, our system of justice has failed. Rep. Olson is talking about the recent conviction in a civilian court of law in New York of convicted terrorist Ahmed Ghailani for his role in the 1998 al-Qaeda bombings of the U.S. embassies in Kenya and Tanzania in which 224 people were killed.

But did justice fail?

No, it worked.

The logic expounded by Rep.Olson and others making noise about the successful criminal trial is focused on the fact that Ghailani was acquitted of all but one of the 285 counts against him. What he fails to note is that one of the factors that led to Ghailani’s acquittal on many of the charges stemmed from evidence obtained from his torture while in the custody of the CIA.

While in custody, Ghailani confessed to a number of facts, including his purchase of explosives from a man who later testified that he had indeed supplied Ghailani with the explosives. The judge in the case ruled that the evidence obtained was excludable under the Fifth Amendment protection from self-incrimination. This Constitutional protection seems to trouble Rep. Olson and other opponents of the rule of law in America.

Nobody, including the jurors in the Ghailani trail, disagree that he is guilty of plotting to kill and maim hundreds of people. While all of the jurors names are kept secret for their protection, there is some evidence that the verdict was a compromise for one hold out juror who was under pressure from the remaining jurors to convict on all of the charges. Perhaps knowing that at sentencing Ghailani would not walk under any circumstance, one charge would suffice.

Where the disagreement in the outcome that seems troubling for Rep. Olson is in a system of justice that does not rubber stamp his ideological belief that terrorists must be put away at all costs. Proving beyond a reasonable doubt that Mr. Ghailani and other terrorists are guilty of the crimes with which they are charged is an idea that has selective applicability.

Examples abound where the extreme cases are used as justification for altering the sacred principles of justice under our Constitution. However, the real risk in doing so is the precedence that it creates for ordinary people. Rep. Olson’s “misguided and dangerous” doctrine that he espouses poses as great a threat to our democracy as any terrorist. Crossing that legal line as he is so eager to do would ensure our demise far quicker than any bomb maker in east Africa.