Former Gitmo Detainee Charged in Tanzania Embassy Bombing Is Acquitted of Most Charges in Federal Court
Allahpundit has the basic skinny here. Basically, the guy was convicted of “conspiracy to destroy government buildings and property” but acquitted of over 200 counts of murder and conspiracy to commit murder.
Why? It’s not because the evidence wasn’t there. It’s because the admissible evidence wasn’t there — as determined by a civilian court applying civilian court rules:
This was the guy whom Obama and Holder lined up as their test case to prove that, yes indeed, we can convict Gitmo jihadis using good old-fashioned civilian court procedures. All was well until last month, when the district court judge barred the feds’ blockbuster witness from testifying, even though he was prepared to tell the jury that he sold Ghailani the explosives used to destroy the U.S. embassy in Tanzania in 1998. The feds had only learned of the witness’s identity during enhanced interrogation of Ghailani, and since the interrogation was deemed illegal, evidence derived from it was inadmissible. Without that testimony, the case collapsed. And now, a month later, we have a full-blown fiasco on our hands.
I went to find the judge’s decision online, to see just what was done to Ghailani, and the reasoning of the decision. I just finished reading it — or, at least, the parts I was allowed to read. Most of the decision is hidden behind huge swaths of redactions. (I tried to upload the judge’s decision for your benefit, but the file is far too large.)
You can’t see what was done to Ghailani. If the opinion discusses that question at all, it hides the answers behind redactions. There are hints in the unredacted portions that any problematic interrogation techniques did not amount to physical torture, but rather consisted of psychological techniques. For example, one quote describing the program says it was “designed to psychologically ‘dislocate’ the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist [government] efforts to obtain critical intelligence.”
But if we don’t know precisely what was done to Ghailani, we do know why — because the court tells us. You see, the CIA’s motive in interrogating Ghailani was not to get evidence to prosecute him. The court fully acknowledges this, and admits that the interrogation techniques were employed for critical reasons of national security.
The Government had argued that “questioning of the defendant by CIA officers . . . was not designed to elicit evidence that would be used in a subsequent trial but rather to obtain intelligence in connection with threats to national security.” And the Court agreed:
This was the case with respect to the RDI [Rendition, Detention, and Interrogation] Program in general, and nothing in the record contradicts the government’s assertion that national security motivated the CIA interrogations that elicited Ghailani’s statements about Abebe [the witness whose testimony was suppressed]. . . . The CIA had reason to believe that Ghailani was involved in bombing two African embassies. The identities and methods of others involved in those bombings, including the source of the explosives, were of critical importance to national security because the individuals and methods used might be applied against other targets in the future.
That sounds like that should end the issue, right?
Nope. The problem is that the CIA’s motive is just one factor in a multi-factor balancing test that was designed to address the behavior of police officers in their dealings with criminal suspects.
The judge probably issued a correct ruling, by the way, under the law he had to apply. The part that leaves me howling in outrage is not so much that he suppressed the evidence. It’s that Obama should have known he would — and that there was a perfectly legal alternative to federal court for this terrorist.
And that is the true outrage of what happened today. The Supreme Court of the United States has ruled that the military commissions established under Bush were constitutional. Those commissions were the obvious venue for trying Ghailani. But that wasn’t good enough for Barack Obama. He had to try this guy in a civilian court designed to handle completely different situations.
Oh, by the way — did you hear Obama’s reaction to today’s verdicts?
UPDATE: Some commenters claim that this testimony would have been barred in a military commission as well. I disagree, and explain why here.