Last Friday, Noor Salman was acquitted in federal court on charges related to the worst Islamist terrorist attack in the United States since 9/11. It was a watershed moment for American justice in the war on terror.
On June 12, 2016, Salman’s husband, Omar Mateen, a Long Island–born US citizen of Afghan descent, opened fire on partygoers at the Pulse Nightclub in Orlando, Florida, massacring 49 people. Mateen was killed by law enforcement during the attack. Seven months later, Salman, the 31-year-old mother of their son, was charged with two counts: aiding and abetting her husband’s material support for ISIS, and obstruction of justice.
Salman’s case has crossed into new territory for terrorism trials. Finally, acquittal in a terrorism case is not considered a failure of the criminal-justice system.
Previously, two former high-profile terrorism cases resulted in partial acquittals. Last November, Ahmed Abu Khattala, who was accused of playing a leading role in the 2012 attack on the US diplomatic mission in Benghazi, Libya, was acquitted on 14 of 18 charges, including the murders of Ambassador Christopher Stevens and three other Americans, but convicted of conspiracy. Seven years earlier, Ahmed Khalfan Ghailani, the accused co-conspirator in the 1998 bombings of US embassies in Kenya and Tanzania, was acquitted by a New York jury on 284 counts, including 224 murder charges, and convicted on a conspiracy charge. The acquittals were particularly striking, given the fact that nearly all terrorism prosecutions result in convictions.
All three trials stumbled as the defense successfully countered some of the facts alleged in the indictments. In Salman’s case, the prosecution’s attempt to try her as an accomplice faltered on several fronts. Her confession to the FBI, which had not been taped, differed from evidence presented in court, undermining the government’s case. An FBI agent testified that Salman could not possibly have cased—as she had initially confessed—the Pulse nightclub. In fact, Mateen had driven around alone on the night of the killings, looking for a site to attack, starting with Disney Springs, proceeding to another club, and, seemingly at the last moment, choosing Pulse. The prosecution’s case was further compromised when it turned out that Mateen’s father was a former FBI informant. And then there was the defendant herself, who did not take the stand but whose defense was compelling. The victim of spousal abuse at Mateen’s hands, Salman was convincingly portrayed as having a low IQ and being continually ignored and duped by her husband, including over his many affairs. “She was not his peer, she was not his partner, and she was not his confidante,” defense attorney Linda Moreno told the jury.
The difference with the Salman case is not just that she was acquitted on all charges—an important moment in and of itself—but that the results have been accepted with equanimity by a wide spectrum of pundits, politicians, and legal authorities. In the immediate aftermath of the startling acquittal, there was a sense of finality and acceptance of the verdict. Officials expressed disappointment, yet accepted the outcome. The Orlando mayor and the Orange County mayor agreed that the community would come together after the verdict and continue the process of healing. Even the mother of one of the young victims of Mateen’s rampage called it “a fair trial.” Though there were expressions of sadness and dismay by the victims’ families, the expressions of acceptance were noteworthy. By contrast, in 2010 New York Representative Peter King called the Ghailani verdict a “total miscarriage of justice,” and proof that all terrorism cases should be tried by military commissions. Former federal prosecutor Andrew McCarthy, among others, concluded that the Benghazi verdict was “not rational,” and he called the insistence on the viability of civilian courts for terrorism trials a “bull-headed conceit” and “a fiction,” and the idea itself as “a failure.”
For too long, the rhetoric of prosecutors and the public has—as the commentary on the Ghailani and Benghazi verdicts reveals—judged the success of terrorism trials on the conviction rate of prosecutors. Thus the national debate over whether to use military commissions at Guantánamo or civilian federal courts to try terrorism suspects has led many of those who defend the federal courts to argue that the their “capacity for conviction” in such cases is what makes them particularly suitable to the task. From both sides of the aisle, law-enforcement officials, politicians, prosecutors, and many pundits have defended the use of the federal courts by promising convictions. Eric Holder, for example, used this argument when he tried to bring the 9/11 defendants from Guantánamo to federal court. He was confident, he said, that they would be convicted.
But this has never been the appropriate metric for a well-functioning criminal-justice system. Instead, it should be based on its ability to be fair, by providing both constitutional protections to the defense as well as guaranteeing the victims’ and the public’s right to witness the trial. Last month, before the Salman verdict came down, former US Attorney Chuck Rosenberg argued on Preet Bharara’s podcast that the possibility of acquittal in terrorism cases is precisely what makes the federal court system so valuable. Transparency about the facts, rules protecting the defendant, and the possibility of the government losing are what make the US courts so special, he offered.
It has taken 17 years for comments like Rosenberg’s to gain any sort of traction in public discourse. Meanwhile, attempts to hold these trials in the military commissions at Guantánamo have led to a virtual dead-end. Of the eight cases that have resulted in conviction, three have been overturned in full and one in part. Meanwhile, the trial of Khalid Sheikh Mohammed, considered the ringleader of the 9/11 attacks, and four others is not scheduled to begin before 2019 at the earliest, as delays and disruptions plague the troubled court. Likewise, the case against the alleged mastermind of the 2000 attack on the USS Cole—Abd al-Rahim al-Nashiri—has imploded in recent weeks. The idea that there are viable military commissions remains an illusion pure and simple. But Salman’s acquittal—and more importantly, widespread acceptance of the verdict—signals that the United States may be ready to turn a page in the war on terror. The country may finally be on the path to a renewed trust in the merits of a court system that allows for a verdict of innocence based on the facts, even when it comes to terrorism.
Correction: The text has been updated to show that Omar Mateen’s father had been an FBI informant, not an agent.