Belmont Club

No Way Out

The Washington Post‘s dry recitation of the facts are devastating. You can’t successfully prosecute enemy combatants as criminals. “The first former Guantanamo Bay detainee to be tried in federal criminal court was found guilty on a single conspiracy charge Wednesday but cleared on 284 other counts. The outcome, a surprise, seriously undermines – and could doom – the Obama administration’s plans to put other Guantanamo detainees on trial in U.S. civilian courts.”

The Obama administration had hoped that a conviction on most, if not all, of the charges would help clear the way for federal prosecutions of other Guantanamo detainees – including Khalid Sheik Mohammed and four alleged co-conspirators accused of organizing the Sept. 11, 2001, attacks.

If it were a surprise a lot of critics saw it coming. Now 9/11 mastermind Khalid Sheik Mohammed himself is unlikely to stand trial, a climbdown from the Administration’s earlier plans to try him in Manhattan to showcase their commitment to justice. “Some analysts now predict that Mr. Mohammed will likely remain at Guantánamo and face a military commission proceeding – or no proceeding at all – rather than a federal judge and jury in the US.”

Ghailani is the first Guantánamo detainee to be transferred to the US for a civilian trial. It was seen a test case by administration officials to clear the way for similar civilian trials for other Al Qaeda terror suspects – including accused 9/11 mastermind Khaled Shaikh Mohammed.

The fundamental problem is that operations of war are not designed to generate evidence. They are intended to destroy an enemy. Converting terrorism into ordinary crime would be like handing the prosecution of World War 2 over to Perry Mason.  Andrew McCarthy, who long predicted this result, finds that he was regrettably correct in his estimation. “Both sides have adjusted their presentations to the civilian justice system rules that, as I’ve been noting in recent columns (including today’s), have resulted in the suppression of key evidence against the defendant.”

Here you have Ghailani: he has confessed to the bombings; he continued to be a top al Qaeda operative (even a bin Laden bodyguard) for years afterwards, until his capture in 2004; and he not only bought the TNT used in Dar es Salaam, but identified whom he got it from — a witness who corroborates his confession and is prepared to testify. Yet, because of a court ruling and DOJ concerns about opening up the interrogation can of worms, defense lawyers know the jury will learn none of this information. So what happens? Ghailani’s lawyer opens the case by telling jurors that, in 1998, his client was a babe in the woods who was never a member of al Qaeda, never “agreed or signed on to” bin Laden’s edicts to kill Americans; and, in his naivete, was duped by a friend into buying a truck he had no idea would be used by terrorists to bomb an embassy. The lawyer looked the jury in the eye and said, Ghailani “is not simply presumed innocent. He is innocent.”

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Jack Goldsmith, writing in the New York Times said “the real lesson of the ruling, however, is that prosecution in either criminal court or a tribunal is the wrong approach. The administration should instead embrace what has been the main mechanism for terrorist incapacitation since 9/11: military detention without charge or trial.”  Patterico on the other hand argues the real takeaway is that Barack Obama should have known his approach would fail.

The judge probably issued a correct ruling, by the way, under the law he had to apply. The part that leaves me howling in outrage is not so much that he suppressed the evidence. It’s that Obama should have known he would — and that there was a perfectly legal alternative to federal court for this terrorist.

And that is the true outrage of what happened today. The Supreme Court of the United States has ruled that the military commissions established under Bush were constitutional. Those commissions were the obvious venue for trying Ghailani. But that wasn’t good enough for Barack Obama. He had to try this guy in a civilian court designed to handle completely different situations.

“Should have known” presumes foresight, and the administration is so impressed with its own incompetence it seems unlikely even they would give themselves the benefit of the doubt. Jake Tapper Tweeted that “DOJ says it’s ‘pleased Ahmed Ghailani facing min. of 20 years in prison + potential life sentence’ for role in the embassy bombings”.  This, after failing to prove 284 out of 285 counts calls to mind the famous scene from Dumb and Dumber were the protagonist is informed by his love interest the odds they would get together was one in a million. “So you’re telling me there’s a chance?”

But the fact is that the Administration is now left with two ruined roads. The first — military detention without trial — was repeatedly dissed and denounced by the Administration itself. The second, which is to treat terrorism as an ordinary crime to be tried in civilian courts, is clearly not going to work. The Obama Administration has checkmated itself, painted itself into a corner, made a bad food choice and is now flossing with razor blades. It either has to find a third alternative to fighting what used to be called terrorism or sink into a quicksand of its own making.

The odds favor the quicksand.

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