Holder Strikes Out in First Gitmo Civilian Trial

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.”