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Holder Loses Gamble on Terror Trial

A ruling this week by a federal judge shows why the president and his AG were wrong in not conducting military tribunals for these unlawful combatants.

by
Clarice Feldman

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October 9, 2010 - 12:40 am
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Practical commenters had noted from the outset of the war on terror that military tribunals for unlawful combatants in our custody made more sense than trying them in civilian courts under normal evidentiary rules. To take the most obvious example, we have what we call the Miranda rule, which requires that police interrogation of a suspect cease when he requests counsel. If the police do not follow that rule, the evidence they obtain from the suspect is not permitted to be introduced into evidence against him. This is not because statements made outside the presence of counsel are necessarily less trustworthy as evidence.

Similarly, we have what’s called “the fruits of the poisonous tree” rule, which means that if the prosecution found evidence only as a consequence of having obtained an inadmissible confession, that evidence as well as the confession are excluded. Again, this means that perfectly relevant and credible evidence must be excluded. These exclusions are justified as the only means by which to enforce the prohibited police conduct, not because the evidence itself is untrustworthy or unreliable.

Because military tribunals involve matters of combat and not criminal enforcement, of necessity they deal with more exigent matters than normal criminal cases. Battlefield interrogators rarely have the time and security advantages of civilian interrogators, for example. It is therefore unsurprising that in the absence of more egregious conduct that bars the use of evidence in civilian criminal courts, like physical torture (the kind of conduct which is really likely to go to the reliability of the evidence itself), many kinds of evidence barred in civilian trials would be permitted, without in any way undermining the tribunal’s obligation to provide a fair adjudication of the matter.

To be sure, there are other considerations which make military tribunals more appealing venues for trials of enemy combatants. For example, they can be held in locations and in such a way as to provide greater security for the judges and jurors. And they are more adept in the handling of classified information which one reasonably anticipates will be needed in cases involving al-Qaeda warriors.

But the relative inflexibility of the evidentiary rules in civilian courts was the most compelling reason for trying the detainees by military tribunals.

Attorney General Eric Holder ignored these sensible warnings and proceeded to a civilian trial only to be given a hard lesson about the law: you cannot count on judges to ignore the law to cover for the president’s moral preening and outreach to his far left base.

The denouement came in a case involving Ahmed Khalfan Ghailani. He is a suspect in the bombing of U.S. embassies in Africa which killed 224 people. He was picked up and in the course of an interrogation overseas by the CIA had given the interrogators the name of a man whom the government now had intended to call as its star witness in the case against Ghailani.

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