When Barack Obama and Eric Holder insisted on moving trials for al-Qaeda defendants to the federal court system rather than the military commissions system that Congress has authorized three times, critics wondered how the Department of Justice would get around the lack of Miranda warnings for those captured by military and intelligence personnel outside the US — and especially about how Justice would deal with those cases that rely on evidence produced from “enhanced interrogations.” Holder and Obama exuded confidence in their ability to prevail in federal court, but a judge has dealt a severe blow to their first attempt at it (via Jeff Dunetz):
A key government witness has been barred from the trial of a Tanzanian man accused in a plot to bomb two U.S. embassies in Africa in 1998, delaying the case until next week.
Federal prosecutors want to call Hussein Abebe, another Tanzanian man, in the criminal case against Ahmed Khalfan Ghailani, the first detainee from Guantanamo Bay, Cuba, to face trial in the U.S.
Mr. Abebe has been expected to testify that he sold dynamite used in the bombing to Mr. Ghailani and that he believed Mr. Ghailani planned to use the explosives for mining.
Defense lawyers had argued that prosecutors learned Mr. Abebe’s identity as a result of statements made by Mr. Ghailani while he was in the custody of the Central Intelligence Agency. While in CIA custody, Mr. Ghailani was subject to so-called enhanced interrogation techniques, which his lawyers have said equated to torture.
Perhaps Abebe isn’t all that important to the case. Oh, wait …
At a hearing last week, Assistant U.S. Attorney Michael Farbiarz said Mr. Abebe was a “giant” witness for the government and directly linked Mr. Ghailani to the explosives used in the attack.
Prosecutors can appeal the ruling, of course, but it probably won’t do much good. They knew what the evidentiary rules were when they chose this venue for Ghailani, which is why critics wondered why they bothered to move him out of the commissions system, where he clearly belongs. The critics had a better understanding of the danger to the case than Holder or Obama did, obviously. And make no mistake: the judge ruled correctly in this case.
The danger here isn’t just to the case, either. The DoJ will now go to an appeals court in order to carve out exceptions to Miranda and interrogation limits, which won’t just apply to AQ terrorists captured outside of the country. Those exceptions will apply to everyone in the federal system. The entire point of this vanity trial in federal court is for Obama to claim that (a) Bush was wrong when he pushed for military commissions (even though Obama plans to use them in other cases) and (b) that American civil courts can handle any kind of case from any jurisdiction, using the same laws that apply to US citizens. If they go to the appellate court and argue for special treatment of Ghailani and others in his circumstance, it’s an explicit admission that those laws don’t work in these situations, and that the court was the wrong venue from the beginning.
Congress authorized the military commissions to deal with these cases in part to keep these needed exceptions from tainting the process for regular criminal trials for American citizens and residents. The point of war is not to try the generals or the foot soldiers, but to put them out of commission for good through the use o the military. That’s where this case belongs.