Eric Holder’s War

A courtroom is the wrong place to fight it.

Rich Lowry
Friday, November 19, 2010

The Obama administration wants us to believe that one out of 285 ain’t bad.

A jury in New York acquitted Ahmed Khalfan Ghailani on 284 out of 285 charges for his part in the murder of 224 people in the U.S. embassy bombings in Tanzania and Kenya in 1998. Attorney General Eric Holder thought the trial would be a glorious showcase for the civilian court system. We’d stun the terrorists with our courtroom procedure, win over the world with our mincing legalisms, and salve our consciences after the horrors of the Bush years.

This was Holder’s war on terror. He’s losing it in a rout.

The attorney general’s obsession with bringing terrorists captured overseas to the U.S. for trial in the civilian courts looks more willful and untenable by the day, as the edifice of his legal strategy collapses in a pathetic heap. It’s not inconceivable that, should he win a second term, Pres. Barack Obama will hand over an operational Guantanamo Bay prison facility to his successor in January 2017.

Ghailani offered a brazen defense at his trial. It was all an innocent misunderstanding when he helped buy the refrigeration truck and the oxygen and flammable acetylene tanks used to make the bomb in Tanzania, when he stored electric detonators in his house, and when the suicide bomber used his cell phone in the attack. These are the things liable to befall any young man on the streets of Dar es Salaam.

Apparently, at least one juror bought some version of this contemptible fabrication and dragged the jury into a senseless verdict. It found Ghailani guilty in a conspiracy to destroy government buildings, but acquitted him of everything else, including 224 counts of murder. Does anyone believe that a truck bomb meant to destroy a U.S. embassy wasn’t also intended to kill and maim everyone in the vicinity?

Ghailani’s lawyer praised the verdict as “a reaffirmation that this nation’s judicial system is the greatest ever devised.” Or, in other words, “Thanks for everything, suckers.”

Ghailani will get 20 years to life, and that’s something. But this is no one’s idea of a showcase outcome. The trial went astray in the mismatch between Ghailani’s status as an enemy combatant and the protections rightly afforded civilians in our justice system.

When Ghailani was caught in Pakistan in 2004, he was that most priceless commodity — an al-Qaeda operative with real-time information about the terror network. The Bush administration interrogated him harshly with an eye to extracting that information quickly, rather than honoring the niceties that obtain in the Daniel Patrick Moynihan Federal Court Building in lower Manhattan.

The judge proceeded to bar a witness whom the government had learned about through Ghailani’s CIA interrogation. This “giant witness for the government,” in the words of the prosecutors, sold Ghailani TNT. Even if the judge’s ruling was too stringent, the tension between being captured and held in Ghailani’s circumstances and tried like a civilian is inescapable.

If we’re serious about protecting ourselves, we’ve never going to give all terrorists the Miranda warnings and immediate legal defense that our civilian justice system demands. That’s why the Bush administration fell back on military commissions and Gitmo. Our civilian system is meant to protect Americans from the awesome power of the state, and all its protections shouldn’t be afforded to enemy combatants waging war against us.

No less an authority than Eric Holder implicitly acknowledges the distinction. He resists even contemplating the possibility that terrorists brought here — and supposedly presumed innocent — will be acquitted. Even if a terrorist is found not guilty, the administration asserts the right to detain him after acquittal. Such a power would be an un-American outrage if it were applied to anyone except an enemy combatant.

In the literal sense, the Ghailani trial was a charade. We pretended to give him an ordinary trial, with the enormous escape hatch of keeping him locked up no matter what. The charade ended in travesty, a fitting conclusion to Eric Holder’s misbegotten war.