The position of attorney general is one of the most important slots in the executive branch of the government. One of the key responsibilities of the attorney general is to prevent the president from violating the law. Another of his responsibilities is to act as a check on the president’s more fanciful notions about the law and what it can and should accomplish.
Because Attorney General Eric Holder shares with President Obama the notion that there is something wrong about military tribunals and something far better about trying captured suspected terrorists in civilian criminal courts which operate under far more rigid rules of evidence, he has flopped in suggesting Khalid Sheikh Mohammed should be tried in Manhattan criminal court, something no sane New York politician will agree to.
Just days ago, the administration seemed to indicate that it recognized that the trial in New York wasn’t feasible. It still looked down on the notion of a military tribunal. The suggestion was that the administration wouldn’t try Mohammed at all — but simply hold him in indefinite detention:
Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will probably remain in military detention without trial for the foreseeable future, according to Obama administration officials.
The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters.
The administration asserts that it can hold Mohammed and other al-Qaeda operatives under the laws of war, a principle that has been upheld by the courts when Guantanamo Bay detainees have challenged their detention.
How holding people for years without any trial (or even after they’ve been acquitted by a civilian jury) is fairer than a military tribunal, I cannot say. The article also says that Obama will make the final decision, so he may simply be hoping to run out the clock , thinking that when he’s re-elected he’ll be in a better position to force an unpopular civilian trial over the objection of local politicians. Or he may just be paralyzed with indecision, as he so often dithers on matters of great importance.
But before Holder reached that point on Mohammed, he decided to go ahead with a civilian trial of Ahmed Khalfan Ghailani, suspected as a key figure in the 1998 bombings of our embassies in Africa which killed 224 people. .
On Wednesday, the jury in that case decided that Ghailani was guilty on only a conspiracy count.
The outcome was not unexpected. In October, I signaled this was a likely result of the ill-considered effort to move these cases from Guantanamo for trial in civilian courts.
I wrote then:
Minutes before the start of the trial, which it seems the administration intended to be a “yes we can [successfully try these guys in civilian court]” to the naysaying legal analysts, Judge Lewis A. Kaplan ruled the witness was barred from taking the stand because the prosecution had not proved to the court’s satisfaction that the government could have found out about the witness even if the confession he made to the CIA — a confession the government was not introducing into evidence — had not occurred.
Ghailani will not be freed despite the collapse of the government’s case. The judge also ruled that his status as an “’enemy combatant’ probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and al-Qaeda and the Taliban end, even if he were found not guilty.”
And from the jury’s action it appears clear that without the evidence barred by the civilian rule that the government cannot use evidence which it obtained by improper interrogation means — even if that evidence is sound in every way — the jury had insufficient evidence to find the defendant guilty of the murder charges:
The first former Guantánamo detainee to be tried in a civilian court was acquitted on Wednesday of all but one of more than 280 charges of conspiracy and murder in the 1998 terrorist bombings of the United States Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. …
The defendant, Ahmed Khalfan Ghailani, 36, was convicted of one count of conspiracy to destroy government buildings and property. He was acquitted of four counts of conspiracy, including conspiring to kill Americans and use weapons of mass destruction. …
Mr. Ghailani faces a sentence of 20 years to life in prison.
The New York Times suggests this may fuel new debate about where these people should be tried. I think that’s an understatement of the first rank. Sane legal scholars think the military tribunal option is adequate and preferable.
The Times also suggests that the judge’s ruling which permitted the trial to go forward over the defense objections of torture while in U.S. custody (a charge I do not believe he could or did substantiate) could be seen to pave the way for a civilian trial of Khalid Sheikh Mohammed.
Of course, Mohammed was, as we know, waterboarded before confessing, while Ghailani, who merely remained in sustained detention, never was.
But this is all picking around the edges.
The notion that people like this should be tried under the rules of U.S. criminal law applicable to civilians is the sort of preposterous silliness that defies reason.
That even if they are acquitted in civilian courts we can and likely will continue to hold them in indefinite detention seems to me to underscore that these are show trials to appeal to the president’s left base. I don’t understand how the attorney general and president can think there is any benefit to this costly, risky enterprise. On the one hand, they stand to turn commonsense legal rulings on their heads and make martyrs of murderous thugs. On the other hand, the whole show trial aspect of it all undermines the rule of law. If you are going to try these men in civilian courts with rules designed to rein in law enforcement officials, not soldiers in battle who must operate under different circumstances, you should be prepared to take the consequences of releasing them to do more acts of murder and terrorism if you lose. If you are unwilling to take that very substantial gamble with national security, try them in military courts, which have more appropriately fashioned rules to make sure that evidence is sound and obtained in a manner more suited to the circumstances than those designed to deal with, say, armed robbery.