The latest developments in two terror trials are highlighting concerns that many people have about the use of civilian trials in some of these cases. First, Ahmed Ghailani, who admitted to bombing the U.S. embassy in Tanzania, may benefit significantly from a decision about what kind of evidence could be used in the trial:
Clearly, however, the prosecutors in New York do not want the trial to devolve into theater over the CIA interrogation methods. Were the government to try to prove Ghailani’s statements to the FBI, defense lawyers would have latitude to summon the CIA interrogators. They would argue that the CIA’s earlier, rough tactics tainted Ghailani’s subsequent, seemingly voluntary confession. The Justice Department is determined to steer clear of that controversy, and of any criticism that it exploited Bush-era tactics, even indirectly. But there’s a trade-off: The jury won’t learn that Ghailani admitted to planning the bombing, buying the TNT, and being celebrated afterward as an al-Qaeda hero.
The Justice Department figured it could roll those dice because it has a witness, Hussein Abebe, who is prepared to testify that he sold Ghailani the TNT. Not so fast, say Ghailani’s lawyers. They argue that the government learned about Abebe only because of Ghailani’s confession. By their lights, having agreed not to use it, the government implicitly concedes that the confession is toxic; therefore, the argument goes, it is no more proper for prosecutors to call a witness discovered because of the confession than it would be to use the confession itself.
Ghailani was reportedly subjected to CIA interrogation techniques, and what Andy McCarthy is suggesting is that the government wants to avoid having to discuss those on trial. Instead, the government wants to use a witness that Ghailani’s side claims was only discovered because of Ghailani’s confession that was arguably damaged by the interrogation. As McCarthy notes, the judge is siding with the defense, so the government’s key witness may not be allowed to testify against Ghailani. Such standards of evidence could be avoided with military trials, but the Obama administration has taken a stubborn stance on these cases.
Another reason that such a stance to use civilian trials is a concern for some is that these trials can be used as propaganda. The trial of Faisal Shahzad, the Times Square bomber, supports that concern. When Shahzad was sentenced to life in prison last week, he was not remorseful, he admitted he was lying when he swore allegiance to the U.S., and he claimed that he is defending his religion. The merits of civilian trials aside, we should not overlook the opportunity for propaganda and legitimization of terrorists. That’s why many advocate the use of military commissions, and possibly the reform of those commissions to meet contentious standards.
Pretending that these trials work fine without any downside is insulting to our intelligence and overlooks serious problems that could even hurt the government’s cases.
UPDATE: McCarthy updates us on the Ghailani trial and what the government’s approach is.
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