Can An American Jury Acquit A Terror Suspect?
There have been over 300 individuals indicted for jihadist terrorism since 9/11, and 80 have gone to trial. The conviction rate for those that go to trial and those that reach a plea is nearly 90%, and when it comes to trials, there have been no acquittals since 2008 — even in cases like the 2009 “Newburgh Four” trial, when it was revealed that the government investigators had overreached by taking the lead in coming up with several elements of the plot including the ideological motive, the need for co-conspirators, and the choice and provision of weapons.
Up until now, convictions like that of Mahenna’s have been met with a sigh of relief. In particular, those who oppose military commissions for terrorists, myself included, rally around these verdicts with the gleeful coda that conviction proves that the criminal justice system can work for terrorism suspects. Meanwhile, conservatives misrepresent the strength of the courts when they foment worry about the theoretical prospect of terrorism acquittals.
But, like it or not, there is a deep and unsettling irony in the embrace of terrorism convictions as proof of a robust system. We have no doubt that a jury of twelve American citizens is capable of convicting, but can they entertain the possibility of an acquittal in a terrorism prosecution, especially when the case revolves around instances of free speech that contains content that many of us find objectionable?