Obama’s Terrorism Failure: The Witness Against Ghailani Would Probably Have Been Allowed to Testify in a Military Commission
Last night I wrote about the acquittals of Ahmed Ghailani on 279 of 280 counts relating to the 1998 Tanzania embassy bombing. A couple of commenters challenged me on my assumption that prosecutors would likely have been able to call the key witness against Ghailani if he had been prosecuted by way of a military commission. For example, commenter edgonzo wrote: “The inadmiss[i]ble evidence here would probably not have been admiss[i]ble in a Military Commission either. That being the case, I’m not sure what the point of this post is.”
Not so. As Marc Theissen explained last month:
[I]f the Obama administration insists on prosecuting Ghailani, there is a forum where the key witness against him would almost certainly be permitted to testify: a military commission at Guantanamo Bay.
Kaplan barred the witness because in federal court his testimony is considered the “fruit of the poisonous tree.” But even under the Obama administration’s revised military commission rules, evidence obtained through involuntary statements can be admitted if the government can show that it would have discovered the evidence anyway, or if the court finds the “interests of justice” favor it. As Lt. Col. David Frakt, a Guantanamo defense lawyer and advocate for civilian trials for terrorists, told me, “because the Military Commission Rules of Evidence are more permissive regarding evidence derived from coerced evidence, I do think it is possible that the witness might have been allowed to testify in a military commission.”
The Ghailani prosecution is hanging by a thread today not because of the interrogation techniques employed against him, but because of the Obama administration’s ideological insistence on treating terrorists like common criminals and trying them in federal courts.
Exactly. As I explained last night, the judge who excluded the witness acknowledged that “national security motivated the CIA interrogations” because “[t]he identities and methods of others involved in those bombings, including the source of the explosives, were of critical importance to national security.” But in a civilian court, which devised exclusionary rules designed to address a different situation (typical police interrogation of criminal suspects), the CIA’s motive was not reason enough to admit the evidence. In a military tribunal, I believe the judges would have given greater weight to the CIA’s benevolent motives and admitted the evidence.
This is why Obama’s decision was such an unnecessary disaster.