Holder Loses Gamble on Terror Trial

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.”

The day before the judge’s ruling gutted the government’s case, Andrew McCarthy correctly surmised (in an article in which he took issue with the court’s ultimate evidentiary ruling) that Holder was gambling and might lose:

The Obama administration has made Ghailani its test case to prove that the civilian criminal-justice system works perfectly well in wartime against enemy combatants -- to show that we don’t need military commissions or other alternatives specially tailored to address the peculiarities of terrorism cases. The administration figured Ghailani was a safe bet. After all, the embassy-bombing case had already been successfully prosecuted once: In 2001, prior to 9/11, four jihadists were tried, convicted, and sentenced to life imprisonment (although the jury voted to spare the two death-penalty defendants).

Yet, to prove its political point that there is no downside in vesting Ghailani -- a Tanzanian national whose only connection to the United States is his decision to make war on it -- with all the constitutional rights of an American citizen, the Justice Department has had to slash its case. DOJ is also finding that even more critical evidence may be suppressed by the trial judge. In short, the slam dunk has become a horse race, one the government could actually lose.

So why did the Department of Justice take this big gamble? I suspect that Holder and those of his colleagues who were involved in the defense of the Guantanamo detainees were so persuaded by their own political posturing and their sense of the rightness of their cause that to this day they remain blinded to reality.