Terrorist Ahmed Khalfan Ghailani was acquitted Wednesday on 284 of 285 counts associated with murdering 212 innocents, but the verdict on Attorney General Eric Holder was guilty as charged. His strategy of force-feeding terrorists into the civilian court system has turned into a legal and security fiasco.
Ghailani was indicted in 2001 for his role in the 1998 bombings of the U.S.embassies in Kenya and Tanzania. The Pakistani military captured him after a July 2004 battle and the CIA held him at a secret location until he was transferred in 2006 to Guantanamo with 13 other high-value detainees. Ghailani admitted his role during interrogation, and in 2008 military prosecutors charged him with war crimes. But last year the Obama Administration transferred him to downtown Manhattan to await a civilian trial.
The follies began early when Judge Lewis Kaplan ruled that prosecutors could not call a key witness, Hussein Abebe. Mr. Abebe was to testify that he sold Ghailani the TNT that blew up the embassy in Dares Salaam, killing 11. Authorities learned of Mr. Abebe from Ghailani, who named him during his CIA interrogation, and defense lawyers claimed the interrogation was abusive.
"The government has elected not to litigate the details of Ghailani's treatment while in CIA custody," Judge Kaplan noted in his ruling. "It has sought to make this unnecessary by asking the Court to assume in deciding this motion that everything Ghailani said while in CIA custody was coerced." Since the government had not demonstrated that Mr. Abebe's testimony was "sufficiently remote or attenuated" from the alleged coercion of Ghailani, Judge Kaplan held the testimony inadmissible. Prosecutors elected not to appeal and also chose not to use Ghailani's confession, which he later repudiated.
Mr. Holder's response was dismissive. "We are talking about one ruling, in one case by one judge," he told reporters. "I think it's too early to say that at this point the Ghailani matter is not going to be successful."
The blunder was Mr. Holder's decision to dump Ghailani into the civilian system when a perfectly adequate military tribunal was available.
It's not too early now. The dozen civilian jurors issued one of the more puzzling verdicts in recent history, convicting him on one charge of conspiracy to destroy government property but acquitting him of conspiring to kill Americans. One news report suggests the verdict was a compromise to appease one juror who was holding out for an acquittal on all charges. We may learn more in the days ahead, but the blunder wasn't the jury's or Judge Kaplan's. They were working with the bad hand they were dealt under the rules of criminal due process that are designed to protect the innocent, not admitted enemy combatants.
The blunder was Mr. Holder's decision to dump Ghailani into the civilian system when a perfectly adequate military tribunal was available. Despite interminable legal challenges from white-shoe law firms and the political left, the Supreme Court has ruled that military commissions are lawful and part of a long U.S. tradition from revolutionary days through FDR. Their advantage is that military tribunals have somewhat more liberal rules of evidence and are designed to handle classified material in a way that protects national security without disqualifying pertinent facts.
Mr. Holder's choice was wholly political, intended to appease the anti-antiterror left that helped to elect President Obama. In a bad decision for the ages, last November he even proposed to try 9/11 mastermind Khalid Sheikh Mohammed near Ground Zero.
That plan was run out of town by Democrats, with New York Senator Chuck Schumer saying in April that the Administration was never going to get its New York trial and that "they should just say it already." Mr. Holder's department nonetheless waited until after the recent election to disclose to the Washington Post last week that he won't hold any trials for KSM and other Gitmo terrorists until after the 2012 election. Where's the candor and competence of Alberto Gonzales when you really need them?
The jurors did do Mr. Holder the favor of convicting Ghailani on the one charge. Had they acquitted him on all counts, Mr. Holder would have been left with the choice of letting a terrorist go free to kill Americans again, or ignoring the verdict and holding him indefinitely in Guantanamo as an enemy combatant. As Judge Kaplan noted during the trial, Ghailani's "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 in this case."
Savor that irony. Trying terrorists in civilian courts is supposed to showcase American justice, but even if they're acquitted they'll be held indefinitely. Meanwhile, terrorists already know that if they're captured they'll get less vigorous interrogation than your average U.S. street criminal, and that they can play their civilian trial for propaganda purposes. Mr. Holder and his boss, the President, have in their ideological willfulness managed to hurt both the reputation of U.S. civilian justice and national security.
The right policy is to separate the laws of war from the laws of civilian society. Burglars and muggers should be tried in civilian courts. Unlawful enemy combatants captured on the battlefield deserve to be held in Guantanamo and tried in military commissions. And if Mr. Holder can't tell the difference, he should find a new job.
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