This should have been an easy call. There are a zillion lawyers in New York with no conflicts of interest that would bear on Abu Ghaith’s case. You simply tell the defendant to find one of them to represent him and, if he cannot, that the court will assign an unconflicted lawyer at taxpayer expense. But no … Judge Kaplan instead has decided to allow Abu Ghaith to retain Cohen, reasoning that any “potential conflicts” have been “knowingly and voluntarily waived.”
After learning of the ruling, Cohen crowed, “A large population in the world does not believe that in this day and age Abu Ghaith can ever receive justice in a courtroom in New York City. Granting his request to proceed to trial with counsel of his choice is the first step.” This is ridiculous. First, the federal courts are obliged to serve the American people, not “a large population of the world”; the American people have a right to a just, efficient trial under the normal rules — not to have a judge roll the dice and risk the necessity of a second trial just so we can hope to impress “a large population of the world” that does not believe American courts administer justice. Second, even if we were in the business of such symbolism, it doesn’t work. One of the top items on the Islamic-supermacist grievance agenda is the imprisonment of the Blind Sheikh (Omar Abdel Rahman, whom I prosecuted in the early-to-mid nineties). The fact that he was given a civilian trial with scrupulous adherence to due process protections and is being held, not at Gitmo, but in a civilian prison that ministers fastidiously to his various medical needs matters not a wit to the people Cohen would have us impress. They still riot and commit other atrocities to try to extort his release and repatriation to Egypt.
Judge Kaplan, it should be noted, presided over the last big al Qaeda trial in the SDNY, the 2010 case against Ahmed Ghailani for his involvement in the 1998 bombings of the American embassies in Kenya and Tanzania. In that case, Judge Kaplan refused to permit the government to call its most important witness. Ghailani ended up being acquitted on 284 of 285 counts — although he was sentenced to life-imprisonment on the single count of conviction, so the Obama Justice Department puts that one in the win column in its campaign to return us to the pre-9/11 days of treating all terrorist atrocities as crimes rather than acts of war.