Who is to blame for this week's acquittal of terrorist Ahmed Ghailani on the most serious charges brought against him by federal prosecutors?
A) No one. The system of American justice worked perfectly. The jury found the defendant guilty on one serious charge (blowing up the U.S. Embassies in Kenya and Tanzania in 1998), carrying a 20-years-to-life sentence. There was insufficient evidence of guilt on the other charges (killing the people inside).
B) The jurors. What were they thinking?
C) Trial judge Lewis Kaplan, who prevented a key government witness from testifying because the government found this witness as a result of coerced interrogation of Ghailani.
D) The Framers, who created a constitutional system entitling criminal defendants to go free based on technicalities that have nothing to do with guilt or innocence.
E) Attorney General Eric Holder, who should have prosecuted Ghailani before a military tribunal.
F) The U.S. Supreme Court, which played no direct role in the litigation but laid the groundwork for this week's result.
I choose F). Here's why.
The jurors aren't to blame. Perhaps there indeed was insufficient evidence at trial to convict on most of the charges, given that Judge Kaplan refused to allow the testimony of Hussein Abebe, whom prosecutors described as "a giant witness for the government." Abebe sold explosives to Ghailani and stood ready to tell all, but was barred from testifying because the judge ruled that the government found him by torturing Ghailani.
The jurors' willingness to resist conviction absent strong proof at trial offers an amazing civics lesson to the world. The decision harks back to 1770, when a Boston jury convicted a couple of British soldiers for their participation in the Boston Massacre but acquitted Captain Thomas Preston and six other defendants in the bloody affair, thereby showing that American justice could treat defendants fairly even when public passions run high.
Judge Kaplan, by contrast, is part of the problem. He wrapped himself in the flag and the Founders, invoking "principles upon which our nation rests," which he traced to the Fifth Amendment's rule against compelled self-incrimination. Kaplan goofed: At the founding, the law did not bar the government from introducing reliable evidence found by tricking or coercing the suspect—or even by treating him roughly. Embarrassingly, Kaplan cited an old book on self-incrimination that has been widely discredited by contemporary scholars. Still, the real fault here lies with the Supreme Court. Beginning in the late 1800s and metastasizing in the 1960s, Supreme Court case law has mangled the Fourth Amendment's protection against unreasonable searches and seizures and the Fifth Amendment's protection against self-incrimination. Simply put, nothing in either amendment, rightly read, requires the exclusion of reliable evidence, which is what Abebe's testimony would have been however it was obtained.
How did we get here? For more than a century after the Declaration of Independence, no court in America excluded evidence in a case like Ghailani's. Indeed, the very point of a public trial was to enable the members of the public to bring forth their evidence and have it heard by the jury and the gallery: "That's the man! And here's my proof." In 1783, an English court famously confronted a situation in which a suspect had in effect been coerced into leading the government to find a cache of stolen goods. The idea that evidence about the cache should be suppressed at trial was dismissed by the court as "novel in theory," "dangerous in practice," and "repugnant to the general principles of criminal law." A later court tartly summarized the traditional Anglo-American rule about procuring evidence: "It matters not how you get it; if you steal it, even, it would be admissible in evidence." In 1822, early America's most learned jurist, Supreme Court Justice Joseph Story, wrote emphatically: "In the ordinary administration of municipal law the right of using evidence does not depend … upon the lawfulness or unlawfulness of the mode, by which it is obtained. … The evidence is admissible on charges for the highest crimes, even though it may have been obtained by a trespass upon the person, or by any other forcible and illegal means."
The Founders' Fifth Amendment did operate as a rule of exclusion: It excluded the government from introducing the defendant's own involuntary testimony. But it did so precisely because such testimony was viewed as unreliable. For example, even an innocent defendant, if forced to take the stand, might sweat, stutter, or get confused, and might thus be made to look guilty. But in Ghailani's case, no one tried to put him on the stand. Rather, the government wanted someone else to testify—and the Fifth Amendment simply has nothing to say about this question. (More here on the basic purpose and limits of the Fifth Amendment.)