Holder Loses Gamble on Terror Trial

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.

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.