By Marc Thiessen
Monday, October 11, 2010;
If President Obama needed a clarifying moment to help him decide whether to try Sept. 11 mastermind Khalid Sheikh Mohammed in civilian court, a federal judge's decision last week to bar the testimony of a key witness in the trial of Ahmed Ghailani should have provided it.
Ghailani's prosecution for the 1998 bombings of the U.S. embassies in East Africa was supposed to be a slam dunk, which Attorney General Eric Holder would then hold up as evidence that civilian courts could handle the prosecutions of other Guantanamo detainees with more complicated cases. But then Judge Lewis Kaplan threw a wrench in Holder's plans, declaring that the government's star witness -- the man who delivered five crates of TNT to Ghailani -- cannot testify because he was first identified by Ghailani during coercive CIA questioning. The loss of this witness is a potentially fatal blow to the prosecution's case. Instead of a slam dunk, Holder is now facing a catastrophe of his own making.
In the wake of the judge's ruling, some critics (including The Post editorial board) have tried to argue that the Ghailani case shows the folly of enhanced interrogation techniques, not the folly of civilian trials for terrorists. If anything, the Ghailani case proves the opposite. Earlier this year, Ghailani's lawyers sought to have the charges against their client dismissed, arguing that his lengthy detention by the CIA had denied him his right to a speedy trial. The Obama Justice Department responded by providing the court with detailed evidence showing that Ghailani's CIA interrogation had produced "crucial, real-time intelligence about senior al-Qaeda leaders and al-Qaeda plots." After reviewing this intelligence, Kaplan rejected the defense motion, ruling that "the CIA Program was effective in obtaining useful intelligence from Ghailani," that "this valuable intelligence could not have been obtained except by putting Ghailani into the [CIA] program," and that the resulting delay in his prosecution "served compelling interests of national security."
Kaplan is right. When Ghailani was captured, the government's first priority was to collect actionable intelligence to stop terrorist attacks, not evidence for a criminal trial. If the price of gaining this life-saving intelligence were that Ghailani could not stand trial for his crimes, that would be a price well worth paying. As former Assistant Attorney General Jack Goldsmith points out, there is no need to try al-Qaeda terrorists like Ghailani -- they can be held indefinitely under the laws of war.
But if the Obama administration insists on prosecuting Ghailani, there is a forum where the key witness against him would almost certainly be permitted to testify: a military commission at Guantanamo Bay.
Kaplan barred the witness because in federal court his testimony is considered the "fruit of the poisonous tree." But even under the Obama administration's revised military commission rules, evidence obtained through involuntary statements can be admitted if the government can show that it would have discovered the evidence anyway, or if the court finds the "interests of justice" favor it. As Lt. Col. David Frakt, a Guantanamo defense lawyer and advocate for civilian trials for terrorists, told me, "because the Military Commission Rules of Evidence are more permissive regarding evidence derived from coerced evidence, I do think it is possible that the witness might have been allowed to testify in a military commission."
The Ghailani prosecution is hanging by a thread today not because of the interrogation techniques employed against him, but because of the Obama administration's ideological insistence on treating terrorists like common criminals and trying them in federal courts.
Few Americans have heard of Ghailani, so the repercussions of this blunder for the Obama administration have been limited. But imagine the public outcry if the defendant had been Khalid Sheikh Mohammed -- and the evidence needed to convict him had been thrown out because Obama insisted that he be tried in a civilian court.
Earlier this year, The Post reported that that the final decision on the venue for KSM's trial has been taken out of Holder's hands and won't be announced until after the November elections. The events of the past week have made clear just how wrong Holder has been on this matter. In 2008, KSM offered to plead guilty before a military commission and proceed straight to execution. Now is the time for Obama to finally take him up on that offer.
Marc A. Thiessen is a visiting fellow with the American Enterprise Institute and writes a weekly column for The Post.