The failure option

The first former Guantánamo detainee to be tried in a civilian court was acquitted today of all but one of more than 280 charges of conspiracy and murder in the 1998 terrorist bombings of the United States Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. Ahmed Khalfan Ghailani was the defendant brought to a trial of the absurd by an administration of the absurd.
The verdict today was foreshadowed last month when trial judge Lewis Kaplan barred prosecutors from calling a crucial witness to testify. Judge Kaplan observed at the time that Ghailani’s status as an enemy combatant would probably allow his return to military custody.
“This makes me wonder why the government is bothering to try Ghailani,” Jack Goldsmith, a senior Justice Department lawyer in the Bush administration and now a law professor at Harvard, wrote at the time on the Lawfare blog.
Ghailani was charged with more than 200 murder counts in the case. The trial was purported to have crucial importance to the Obama administration. According to Attorney General Holder, “failure is not an option. These are cases that have to be won.” Ghailani was acquitted of every one of the murder charges brought against him.
Failure proved not only to be an option, it proved to be a predictable outcome. And failure has become a defining feature of the Obama administration.
JOHN adds: This case illustrates very well the foolishness of according civilian jury trials to captured terrorists. Ghailani is undoubtedly guilty; indeed, he confessed long ago. But the appropriate treatment of a captured terrorist, with respect to whom obtaining information about potential future attacks is paramount, is entirely different from the appropriate treatment of a garden-variety criminal. Andy McCarthy saw the potential for this unjust result shortly after the trial began:

[B]oth sides have adjusted their presentations to the civilian justice system rules that, as I’ve been noting in recent columns (including today’s), have resulted in the suppression of key evidence against the defendant.
I imagine this must infuriate people — it still infuriates me after 25 years in the biz. Here you have Ghailani: he has confessed to the bombings; he continued to be a top al Qaeda operative (even a bin Laden bodyguard) for years afterwards, until his capture in 2004; and he not only bought the TNT used in Dar es Salaam, but identified whom he got it from — a witness who corroborates his confession and is prepared to testify. Yet, because of a court ruling and DOJ concerns about opening up the interrogation can of worms, defense lawyers know the jury will learn none of this information. So what happens? Ghailani’s lawyer opens the case by telling jurors that, in 1998, his client was a babe in the woods who was never a member of al Qaeda, never “agreed or signed on to” bin Laden’s edicts to kill Americans; and, in his naivete, was duped by a friend into buying a truck he had no idea would be used by terrorists to bomb an embassy. The lawyer looked the jury in the eye and said, Ghailani “is not simply presumed innocent. He is innocent.”

Having failed to convict Ghailani on more than a single count, the administration can only hope for a substantial sentence. Absent that, they presumably will continue to hold him indefinitely, much as they are holding Khalid Sheikh Mohammed, thus demonstrating the essentially sham nature of the proceeding that has just concluded. The Obama administration is truly a ship of fools. Some are already speculating that this disaster will be the occasion for Eric Holder to step down as Attorney General. I have no idea whether he is on the way out or not, but if so, Republicans in the Senate should question his replacement closely about Holder’s politicizing of the Department of Justice, and should extract whatever commitment they can from his successor not to pursue the same course.
UPDATE: Hugh Hewitt collects comments and makes his own pointed observations.

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