By Andrew C. McCarthy
http://www.nationalreview.com
October 6, 2010 4:00 A.M.
FBI pictures show Ahmed Khalfan Ghailani, accused in the 1998 US embassy bombings in Africa. Photograph: Reuters
Ahmed Ghailani has confessed to bombing the U.S. embassy in Tanzania twelve years ago. As he explained to the FBI in a series of 2007 interviews, he bought the TNT used in the explosion. He even identified the man from whom he purchased it — a man who was subsequently located, who corroborated Ghailani’s confession, and who has been cooperating with American and Tanzanian authorities ever since. Ghailani also helped buy the truck and other components used to carry out the suicide attack.
The two simultaneous embassy bombings — Ghailani’s in Dar es Salaam and a second, more devastating one at the American embassy in Nairobi, Kenya — killed at least 224 people. The bombings made Ghailani, then in his early 20s, an icon of the jihad. He strode al-Qaeda’s training camps in Afghanistan and bonded with fellow terrorists, including some who would later conduct the 9/11 attacks. In fact, Ghailani was so highly regarded that he was chosen to serve as a bodyguard for Osama bin Laden himself.
All of that should make Ghailani’s trial, which is slated to begin in Manhattan federal court this week, a slam dunk. It is, however, anything but. Once again, politics has trumped national security and common sense.
The Obama administration has made Ghailani its test case to prove that the civilian criminal-justice system works perfectly well in wartime against enemy combatants — to show that we don’t need military commissions or other alternatives specially tailored to address the peculiarities of terrorism cases. The administration figured Ghailani was a safe bet. After all, the embassy-bombing case had already been successfully prosecuted once: In 2001, prior to 9/11, four jihadists were tried, convicted, and sentenced to life imprisonment (although the jury voted to spare the two death-penalty defendants).
Yet, to prove its political point that there is no downside in vesting Ghailani — a Tanzanian national whose only connection to the United States is his decision to make war on it — with all the constitutional rights of an American citizen, the Justice Department has had to slash its case. DOJ is also finding that even more critical evidence may be suppressed by the trial judge. In short, the slam dunk has become a horse race, one the government could actually lose.
The jury won’t be hearing about Ghailani’s confession. It has been reported that, because he was a highly sought and highly placed al-Qaeda operative, Ghailani was subjected to harsh interrogation tactics by the CIA after being captured in Pakistan in 2004. To be sure, no jury should be permitted to hear a coerced confession. That is not because an alien terrorist held outside the U.S. in wartime has Fifth Amendment rights; it is because a proceeding in which a person is forced to be a witness against himself does not meet rudimentary standards of justice. Nevertheless, we are not referring here to what Ghailani may have told the CIA under duress; we are talking about the confession he gave the FBI three years later. The FBI does not use the CIA’s controversial tactics.
There was nothing unlawful about holding Ghailani as an enemy combatant in wartime. Indeed, the trial judge, Lewis Kaplan, has already rejected the terrorist’s claim that this detention violated his (purported) right to a speedy trial. Furthermore, CIA coercion would not undermine the validity of subsequent lawful treatment of Ghailani by other government actors. Judge Kaplan has also turned aside the terrorist’s claim that the prosecution must be dropped because he was “tortured.” Similarly, the CIA’s tactics do not render the FBI’s subsequent questioning unlawful.
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.
Bombings of the Nairobi, Kenya, US embassy (left), and the Dar es Salaam, Tanzania, US embassy (right). [Source: Associated Press]
Surprisingly, Judge Kaplan appears to be siding with the defense in this dispute. In a heavily redacted 37-page ruling issued in August, Kaplan concluded that the government had failed to meet the exacting burden required to show that it would inevitably have learned about Abebe without Ghailani’s confession. More dismayingly, the judge was unmoved by the government’s contention that the “fruit of the poisonous tree” doctrine was inapposite.
Prosecutors argued that this doctrine — a Fourth Amendment suppression-of-evidence remedy invented by judges — was designed to discourage bad behavior by police (specifically, unlawful searches). To the contrary, the FBI’s questioning of Ghailani had been legal and in the national-security interest of a country at war with a ruthless terror network about which Ghailani has intimate knowledge.
Kaplan, however, accepted the theory pushed by the defense: that Ghailani has full-fledged Fifth Amendment rights, and that any coercion from the CIA interrogation infected all later government questioning of him. Thus, according to the judge, even if the FBI’s interrogation was proper, Abebe’s testimony could still be barred because a Fifth Amendment violation occurs, not when information is coerced, but when the coerced information is used against the accused.
Kaplan is more amenable to the government’s argument that Abebe is willing to testify of his own free will — in other words, that the witness’s voluntary act would be an independent development, one not directly caused by the coercion of Ghailani. Even here, though, the judge remains unconvinced. True, the government has represented that Abebe is voluntarily cooperating; but it has not proven that he is doing so. According to Judge Kaplan’s opinion, there has been no affidavit from the witness himself, nor any testimony from CIA, FBI, or Tanzanian officials about the circumstances of Abebe’s apprehension and eventual cooperation. The judge has not slammed the door on prosecutors, but he has indicated that the testimony will be barred absent a compelling demonstration that this witness — fully aware that he is under no obligation to provide evidence against a terrorist mass murderer — actually wants to come to New York and testify, and is not acting under any duress from U.S. or Tanzanian authorities.
If Abebe’s testimony were stricken, the Justice Department’s case would be deeply — and perhaps fatally — wounded. As one prosecutor told the court, “This is a giant witness for the government. There’s nothing bigger than him.” Without Abebe, prosecutors could not establish that Ghailani obtained the TNT. He’d be able to argue that his having helped a friend buy a truck does not mean he knew people were planning to use the truck in a bombing, much less to strike an American embassy. Even proving the truck purchase could be problematic. As Ben Weiser of the New York Times relates, it’s been nine years since the last embassy-bombing trial, and the owner of the truck — a witness in that case who helped establish that Ghailani participated in the truck’s purchase — has since died.
Ghailani’s trial was supposed to start Monday. It has been postponed until today to allow the court to resolve the witness issue. If Abebe’s testimony is disallowed, the government will almost certainly appeal, potentially delaying the trial for weeks, if not longer.
Playing with fire like this is no way to prove a point. Maybe the Justice Department will convince the courts to permit the testimony of their crucial witness. Maybe the very talented prosecutors in Manhattan will even figure out a way to convict Ghailani without Abebe’s testimony. But we are intentionally tying our hands behind our backs and running an unnecessarily high risk of acquittal in a case involving a war criminal.
Civilian trials have a vital place in our counterterrorism strategy — particularly in the terrorism-financing cases that the Obama administration shuns because they involve ostensible Islamic charities. Still, it is no denigration of civilian prosecutions to point out that in a military commission — the procedure Congress has designed and reaffirmed for war-crimes trials of enemy combatants — there would be fewer hurdles to placing the most important evidence before the tribunal.
Military commissions need not assume that a defendant is endowed with all the rights of American citizens. They need only be fair. Of course, coerced confessions would be suppressed. Voluntary confessions, however, would be admissible. Available witnesses would be permitted to testify. Prior testimony from unavailable sources might well be considered as long as it appeared reliable — such as the sworn testimony of a now-deceased witness who was subject to cross-examination. Nor would military commissions elbow the Justice Department out of the mix: Experienced federal prosecutors would be able to try the cases along with their military counterparts, just as civilian defense attorneys join military lawyers in the representation of defendants.
This shouldn’t be about scoring points. It should be about maximizing the chance of convicting a terrorist with American blood on his hands.
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.
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