During his campaign for the presidency and after he took office, Barack Obama made a large point of arguing that the military commission system set up by Congress to try terrorists somehow violated our highest principles and moral values as a nation. It was garbage, of course, but it fed the fantasies of his leftist base. Then it got serious when the President’s Attorney General, Eric Holder, decided to try Khalid Sheikh Mohammed and other al Qaeda jihadists in New York City.
While the subsequent uproar stopped (for now) the trials of KSM and his comrades, one trial went on: that of Ahmed Ghailani, who has confessed to being the prime mover behind the deadly truck bombings of the US embassies in Nairobi and Dar es Salaam in the 1990s. Because of a question as to whether the confession was admissible under the rules of the US criminal court system, the Obama-Holder Justice Department decided to go through with a trial. “No problem,” they assured us. “We have a witness who makes this a slam-dunk case, proving the wisdom of our determination to treat terrorism as a criminal matter!”
Then the judge kicked out the witness.
Now the trial is in deep jeopardy. Yes, the man who has confessed to killing hundreds of people in those bombings and who is a hero to jihadis around the world may just walk free. Former federal prosecutor Andy McCarthy explains the problem:
Clearly, however, the prosecutors in New York do not want the trial to devolve into theater over the CIA interrogation methods. Were the government to try to prove Ghailani’s statements to the FBI, defense lawyers would have latitude to summon the CIA interrogators. They would argue that the CIA’s earlier, rough tactics tainted Ghailani’s subsequent, seemingly voluntary confession. The Justice Department is determined to steer clear of that controversy, and of any criticism that it exploited Bush-era tactics, even indirectly. But there’s a trade-off: The jury won’t learn that Ghailani admitted to planning the bombing, buying the TNT, and being celebrated afterward as an al-Qaeda hero.
The Justice Department figured it could roll those dice because it has a witness, Hussein Abebe, who is prepared to testify that he sold Ghailani the TNT. Not so fast, say Ghailani’s lawyers. They argue that the government learned about Abebe only because of Ghailani’s confession. By their lights, having agreed not to use it, the government implicitly concedes that the confession is toxic; therefore, the argument goes, it is no more proper for prosecutors to call a witness discovered because of the confession than it would be to use the confession itself.
Prosecutors reply that there is a big difference between using admissions pried from a defendant under coercion and merely calling a witness. The government may inevitably have found the witness anyway. Moreover, even if the confession tipped the government off to Abebe’s existence, he is a volunteer, providing testimony of his own free will.
Read the whole thing.
Basically, the judge decided Abebe’s testimony was “fruit of the poisonous tree,” and thus inadmissible. This just shows what McCarthy and others, such as former Attorney General Michael Mukasey, argued was right: that the civilian court system is not set up to handle terrorism cases.
Unless they can come up with yet another “slam dunk” approach or get Ghailani to confess*, the administration may well be faced with the choice of letting a mass-murdering al Qaeda terrorist go, or throwing him back into the military commission system and looking even more ridiculous for it.
*(Fat chance of either happening. Ghailani is probably planning his vacation in Waziristan even now.)
(Crossposted at Public Secrets)