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Rolling the Dice On Civil Trials For Al Qaeda Terrorists

Posted on October 14 2010 5:00 pm
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Ahmed Ghailani, the al Qaeda terrorist accused of bombing the American embassies in Tanzania and Kenya in 1998, is now on trial in Manhattan’s Federal District Court – not in a Guantanamo military tribunal where he belongs. The bombings resulted in the deaths of at least 11 people and injured another 85.

The Obama administration decided to make Ghailani its poster-boy for demonstrating how civilian trials can best handle suspected al Qaeda terrorists. So far their decision is bombing, if you will excuse the pun.

First, the Obama administration decided on its own initiative to prove its case against Ghailani without relying on his confession elicited during enhanced interrogation, even though he evidently repeated his confession while being questioned by the FBI under more genteel circumstances.

Then, at the ouset of the trial, the presiding judge, Lewis Kaplan, dealt the prosecution a body blow. He excluded the government’s key witness,who would have testified that he sold Ghailani the explosives used in the embassy bombings. The judge ruled that the identity of this witness was revealed by Ghailani while he was being held and questioned by the CIA in one of its secret prisons. Torture was assumed to have been used in eliciting this information, but was never proven to have taken place.

In his opinion explaining his decision, Judge Kaplan said he was

acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand.

Incredibly, the Obama Justice Department under Eric Holder decided not to appeal the judge’s ruling. It proceeded to trial in the absence of both Ghailani’s confession and the crucial testimony of the one witness that could have tied Ghailani directly to the materials used to make the terrorist bomb.

As this farcical trial got underway, the defense counsel told the jury in his opening argument that Ghailani was no terrorist. He was just a poor sap with no knowledge of any plot to kill Americans who

is not simply presumed innocent. He is innocent

This whole exercise rests on the false premise that the full constitutional rights accorded to garden variety criminal defendants should also be extended to alien al Qaeda terrorist suspects. Incredibly, Judge Kaplan recognized the dilemma when he added in his opinion that his ruling would be of little consequence at the end of the day. The judge noted the government’s right to keep the suspect in detention no matter how the trial turns out :

It is appropriate to emphasize that Ghailani remains subject to trial on the pending indictment, that he faces the possibility of life imprisonment if convicted, and 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 in this case.

The Obama administration has said pretty much the same thing – not to worry about what happens at trial since suspected al Qaeda terrorists like Ghailani can be held indefinitely as enemy combatants.

Then why go through this charade in the first place? What are we trying to prove and to whom? If Ghailani is found guilty by the jury at the conclusion of his trial, the radical Islamists and their ‘civil liberties’ supporters in this country will cry foul that the trial was rigged. If he is found innocent by the jury and returned to prison anyway for indefinite detention, one can only imagine the outcry denouncing the hypocrisy of the U.S. legal system.

Treating terrorism like a law enforcement matter is the heart of the problem. Whether we are dealing with low level operatives like Ahmed Ghailani or the self-proclaimed master-mind of 9/11, Khaleid Sheikh Mohammed, they should be dealt with as foreign enemies of the United States. Their cases belong in military tribunals, not in our civil courts.

To say that we have been successful so far in obtaining guilty verdicts against terrorists in our civil courts is beside the point.  Handicapped by strict rules excluding crucial evidence, the prosecution is rolling the dice every time they go to trial. If  they lose and the suspect is set free, we may be releasing a terrorist sworn to kill as many innocent Americans as possible. If they lose but end up invoking ‘house rules’ in the dice game by throwing the suspect back into prison anyway, what have we accomplished other than to give our enemies more ammunition for propaganda purposes?

Instead of going through a charade, it is time to recognize the obvious  – alien terrorist enemy combatants should not be tried in civil court. They belong in military tribunals under procedures approved by the President and Congress, with judicial oversight to ensure fundamental fairness.

In short, we need to go back to first principles in order to extricate ourselves from the Gordian knot we have tied around ourselves. The Constitution applies, as its preamble states, to “We the People of the United States.”  Not to the foreign enemies of the United States. The preamble says that “We the People of the United States” have established the Constitution to “provide for the common defence” (sic) and to “secure the Blessings of Liberty to ourselves and our Posterity.”

There is nothing in the preamble, or anywhere else in the Constitution, that guarantees these blessings of liberty to foreign terrorists who have declared war on the United States. It is time to end the charade once and for all.

Joseph A. Klein is the author of a new book entitled Lethal Engagement: Barack Hussein Obama, the United Nations and Radical Islam.

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