Opinion: Obama's Terrorism Policy Flunks Jury Test

(Nov. 17) -- Just two weeks after suffering a crushing setback in the midterm elections, the Obama administration suffered another blow after the acquittal on all but one charge of ex-Gitmo detainee Ahmed Ghailani in a lower Manhattan federal courthouse.

A Tanzanian national, Ghailani was accused of participating in the U.S. Embassy bombings in Nairobi, Kenya, and Dar es Salaam, Tanzania, on Aug. 7, 1998.

Ghailani was acquitted of 224 murder charges and instead was found guilty of just one charge of conspiracy to destroy government buildings. Sentencing will take place at a later date.

In its signature case designed to prove that Guantanamo detainees could in fact be successfully prosecuted in the civilian justice system and afforded protection under the U.S. Constitution, the administration whisked Ghailani out of Guantanamo and into a New York courtroom in June 2009.

Attorney General Eric Holder announced in conjunction with the transfer that "the Justice Department has a long history of securely detaining and successfully prosecuting terror suspects through the criminal justice system, and we will bring that experience to bear in seeking justice in this case."

Only one problem: Juries have been known to render unexpected verdicts in highly polarized cases, no matter how much evidence exists against the defendant.

O.J. Simpson's 1994 murder trial comes to mind. As does the New Mexico case in which a jury famously awarded a $3 million judgment to an Albuquerque woman who was burned by hot coffee from McDonald's.

If O.J. Simpson and McDonald's are controversial, they are mere bit players compared with Guantanamo and the Bush administration that created its detention facilities.

With civilian juries so unpredictable, it was only inevitable that serious problems would arise with President Barack Obama's strategy to try Guantanamo detainees in federal court.

If rolling the dice to get unanimous verdicts from 12-member juries isn't enough, the strict curtailing of evidence makes convictions even harder.

In Ghailani's case, the judge disallowed testimony from a key witness -- Hussein Abebe, whom prosecutors say sold Ghailani the TNT used to blow up the Dar es Salaam embassy. Citing Ghailani's coerced statements while in CIA custody, which led to Abebe's identity, the judge ruled that any evidence gathered under those conditions -- known as fruit of the poisonous tree -- could not be used.

As a result, what seemed like an open-and-shut case to the Obama administration, one easily prosecutable in the civilian justice system given the amount of evidence, proved entirely more difficult than imagined.

Though Obama's lofty goal of civilian trials for non-U.S. citizens engaged in terrorist acts against the U.S. sounds noble, the stakes if he's wrong are awfully high. Should defendants go free because of jury peculiarities, there could be a grave risk to civilian populations. It is clearly not the same to try foreign terrorists in the same venue as those who hold up liquor stores.

Sadly, the Ghailani trial is par for the course for Obama. He has severely misjudged each and every facet of Guantanamo -- from immediately halting military commissions and mandating the closure of its detention facilities as his first priorities announced at inauguration, to insisting on moving detainees to the mainland U.S. and trying some of them in civilian courts.

Why should this outcome be any more successful than the rest?

J.D. Gordon is a communications consultant to four Washington, D.C., think tanks and a retired Navy commander who served in the Office of the Secretary of Defense from 2005 to 2009 as the Pentagon spokesman for the Western Hemisphere.