Let’s face it. Barack Obama and Eric Holder gambled their entire national-security credibility on the Ahmed “Foopie” Ghailani trial, arguing that they could get convictions of detainees captured abroad by military and intelligence assets while using federal courts as a venue rather than the military commissions that Congress repeatedly authorized for that purpose. Holder scolded critics who pointed out all of the reasons that such a strategy was much more likely to fail for “politicizing” the process, especially in regard to the trial of Khalid Sheikh Mohammed, whose case is more problematic than Ghailani’s, where the FBI did a large part of the investigation before intelligence assets were used to seize and interrogate Ghailani.
The failure of Holder’s DoJ to win anything more than a single conspiracy count against Ghailani as a result of using a process designed for domestic criminals than wartime enemies shows that the critics had it right all along. It also shows that both Obama and Holder have been proven spectacularly wrong, since a man who confessed to the murder of over two hundred people will now face as little as 20 years, with a big chunk of whatever sentence Foopie receives being reduced by time already served.
The administration is left with three choices in regards to Ghailani: announce that they will release him at the appointed date whenever his sentence ends, announce that they will hold him indefinitely without regard to the court’s ruling on the matter while referring the case back to a military commission despite his acquittals, or refuse to state which they will do and hope the issue falls to the next administration. The first will mean that the US will knowingly release a master al-Qaeda terrorist with more than two hundred murders under his belt; the second will mean that the trial they staged was nothing but a sham. And the third will be a cowardly dodge.
Such is the state in which Holder as Attorney General has left the US. Either the US is so inept that it will eventually release a man who attacked two of its embassies abroad (which was an act of war by al-Qaeda) or that the DoJ may commit an impeachable act by knowingly submitting a defendant to double jeopardy, whether in this administration or a future administration. By committing to the civilian criminal system and assigning judicial jurisdiction where it never belonged, those are the only options left.
It was that decision that created the entirely predictable set of decisions that forced the judge to exclude the evidence gleaned by intelligence interrogation that proved Ghailani guilty — a cascade of consequences foreseen by critics and arrogantly sneered at by this administration as “politicization.” It’s both the arrogance and the incompetence that requires Eric Holder’s termination as Attorney General. Holder made these decisions and hotly defended them as perfectly reasonable, with no reduced chance of getting convictions in these cases.
A less arrogant — and less ideological — Attorney General would have heeded Congress’ warnings and reconsidered the wisdom of the idea of shoehorning foreign-captured war criminals into venues where they have never been adjudicated before now. And a less arrogant administration would have not defied the will of Congress, which three times set up military commission processes for these very cases, and for the very reasons that the DoJ spectacularly failed this week.
There could be no greater failure by the DoJ in this war on terror than to get these decisions wrong, especially in light of the avalanche of criticism over those decisions and the administration’s reaction to it. Holder should hand in his resignation before he makes the same mistake with the other terrorists our military and intelligence assets risked their lives to keep off the battlefield forever. His continued presence insults their work, insults Congress, and insults our desire for justice for 9/11, the USS Cole bombing, the two embassy bombings, and the other terrorist attacks and plots we’ve managed to stop through a forward strategy on the war on terror. If a resignation is not forthcoming, the Senate and House Judiciary committees should start hearings to determine why Holder remains in this position.
Update: The minimum sentence is 20 years, not the maximum.