The Right Decision

President Obama is to be commended for holding his ground regarding the civilian trial of Ahmed Ghailani. Ghailani was acquitted Wednesday of all but one of the 280 charges he faced surrounding the 1998 bombings of U.S. embassies in Africa that killed 224 Americans. The decision has angered those who opposed a civilian trial for Ghailani. Obama resisted attempts to move Ghialani's trial to a military court. Ghailani did not go free. He still faces 20 years to life for his conviction on the count of conspiracy. I will wager he gets the maximum sentence allowed.

Innocent until proven guilty is not a slogan. It is a principal. Guilty people are not put on trial. Accused people are. The government cannot simply claim a person is guilty. They have to prove it in court. The rights of the accused in a civilian trial are weighted to balance the power of the state and protect his rights. A person confronted by the power and resources of the state, or in this case, the federal government, is at a distinct disadvantage. This is even more so when the public has been convinced of his guilt. Rights are instrumental to justice, they are not obstacles. Without rights, individuals can be crushed by the state.

Civilian trials of accused terrorists are not threats to national security. If the issue of sensitive information arises, the proceedings can be closed. Yet even if proceedings are closed, the accused's rights are retained. Chief among the procedural disadvantages Ghailani would have faced in a military court is that there would have been limited public scrutiny to ensure he was not placed in even greater jeopardy or legally mistreated. The only defender the accused has is usually himself a member of the military. There is no jury in a military trial. The court decides innocence or guilt. There is always the threat of a conflict of interest. In a trial such as Ghailani's where the stakes are high and the world is watching, the government should ensure that proceedings are above board. The best way to do that is to conduct them in open court for everyone, even our enemies, to see.

The advantages of a civilian trial gained by Ghailani will disappear if future proceedings are closed. In that case, we will hear of the progress of the trials and be made aware of at least some of the evidence. We will also hear of their defense. But we will only know what is released by the court. We will not know, and may never know, what the court has chosen to retain. The public will be told of the verdict and the sentence pronounced. The public might be satisfied. It should not be.

There was no need for a military trial for Ghailani. A lengthy, public trial was to the government's advantage. It gave them the opportunity to display the crimes Ghailani was accused of one by one for all the world to see. It was also an opportunity for the United States to demonstrate its commitment to justice and the rule of law, in other words, why we are the good guys. The decision to hold a civilian trial for Ghailani was about more than Ghailani. The system, despite the 279 findings of not guilty, worked. He will be going to jail for a very long time. It is about the people down the line. Those in custody may be guilty. They may not be. If secrecy and exclusion become standard practice, we will never know for sure. It is customary to believe a person is guilty when the state tells us they are. The state is not always right. Time and again it has been shown that the state makes mistakes. Not everyone accused of a crime is guilty. Some are innocent. That is what trials are for, to separate the guilty from the innocent. More precisely, that is what juries are for.

A public trial was good enough for Timothy McVeigh. It is good enough for Ghailani and others like him. As terrible as the crimes terrorists are accused of, this is not Nuremberg. If the government is afraid accused terrorists might be acquitted in civilian court, it should reassess its evidence. If particular evidence is sensitive, close the proceedings when the situation demands. Just give them a public trial. The people deserve one as much as accused terrorists do.

As unlikely as it is, Ghailani might just have been not guilty of 279 of the things that the government accused him of. The jury felt so and they were there. The government makes mistakes. It always has and it always will. Despite what the public may be led to believe, people are not guilty until a jury or court says they are. As it stands, Ghailani is not guilty of all but one of the things the government accused him of.

Some argue that a military court would have found Ghailani guilty on all of the counts brought against him. That might be true. But Ghailani is not a soldier. He is not in an army. He did not violate the Geneva Conventions. He is a member of a criminal organization who was complicit in blowing up an embasy and killing Americans. He has no business in a military court. To call what he did a war crime would stretch the definition of war crimes to include virtually any politically motivated attack on life and property.

Justice demands that the guilty be punished. It also demands the innocent go free. The purpose of a trial is to determine between the one or the other. That is why trials are so important. That is why they should be denied in only the gravest of circumstances. Legal rights are rarely appreciated until they are needed. If they are not protected, they might not be there when you need them.

Holdig public trials for accused terrorists is not a mistake. If nothing else, it gives the United States the opportunity to demonstrate its commitment to civil rights and the rule of law. Short cuts and legal maneuvering to achieve our ends will tarnish our principals and send the wrong message to the world and our enemies. It is when those principals are inconvenient that our commitment to them is most important. If we are to hold our principals out as an example for others, it is best we follow them. A military trial would have sent a message of U.S. resolve. A civilian trial sends a message of U.S. commitment to justice and civil rights.

Many are irate at the the jury's decision. Some have gone so far as to condemn it as jury nullification. They point to the "hard evidence' brought against Ghailani. They claim the jury system not just failed, it failed utterly. They are incredulous that in the face of "irrefutable" evidence, a jury would "defy logic" and find Ghailani not guilty. As unlikely as it might seem to some, Ghailani might not have been guilty of 279 of the things the government accused him of. That was the conclusion the jury reached after hearing the evidence. Despite what the public might be led to believe, no one charged with a crime is guilty. They are not guilty until a jury finds them so. That is what trials are for.

The court did not fail. It worked just as it should. President Obama did not fail either. He did just as he should. He upheld the Constitution. Many wanted Ghailani dead. They were hoping the government would kill him. They were convinced of his guilt before he even entered the court room. They are the ones most disappointed by the decision. In lieu of his execution, they will have to be satisfied with him merely spending the rest of his life in prison.

Not a Bad Deal

It was reported Sunday that the U.S. was able to secure from Israel a 90 day freeze on settlement construction in the West Bank. The freeze does not include construction in East Jerusalem. Construction in East Jerusalem is a major point of contention. Israeli construction there and elsewhere had brought peace talks to the brink of collapse when Palestinian leader Mahmoud Abbas threatened to withdraw from the talks unless settlement construction stopped. Israel declared the freeze was a "one time only" deal.

In return for acceding to the U.S. request for a temporary halt in construction, the U.S. agreed to provide Israel 20 advanced fighter jets and other unspecified aid. The U.S. will also continue to oppose Palestinian statehood. When you consider that in 90 days when the freeze ends Israel is free to resume construction, it is not a bad deal. They have committed to nothing.

There is the possibility that an agreement can be arrived at between Israel and the Palestinians in 90 days. Given Netanyahu's resolve to build in the West Bank and Palestinian determination to keep that from happening, the chances of a deal being reached are remote. Years of negotiating have not resolved the issue. 90 days will not help much. The best that can be reasonably expected is the exchange of a few scraps of land, an agreement to keep negotiating, and perhaps a slightly less ambitious Israeli development plan for the near future.

If Israel resumes construction in the West Bank when the freeze ends, and it will, they will still get the aide, the fighter jets, and continued U.S. support in the U.N. They would have gotten them anyway. Israel could march the Palestinians into the sea and still rely on the U.S. for support and they know it.

At least Israel is willing to talk. They don't have to.