The Show Trial of Ahmed Khalfan Ghailani


Yesterday the judge in the trial of Ahmed Khalfan Ghailani, the former Guantanamo inmate who is accused of participating in the 1998 bombings of the U.S. embassies in Kenya and Tanzania, ruled that federal prosecutors may not use a witness who was identified through Ghailani's coerced statements. The government says the witness was prepared to testify that he sold Ghailani the TNT used to blow up the embassy in Tanzania. U.S. District Judge Lewis A. Kaplan concluded that the testimony was too closely tied to information the CIA obtained from Ghailani while holding him at a secret prison where he says he was tortured. Civil libertarians who argue that the federal courts are perfectly capable of handling terrorism cases and conservatives who think terrorism suspects should never receive civilian trials both say the exclusion of this testimony shows they're right. But whether or not the system is working, Kaplan's ruling suggests it is ultimately irrelevant:

The judge said he felt it was appropriate to emphasize that the trial was still proceeding, and that if Mr. Ghailani were convicted he faced the possibility of life imprisonment.

He added that Mr. Ghailani's status of "enemy combatant" probably would permit his detention as something akin "to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end, even if he were found not guilty."

In other words, if Ghailani is convicted, he will be imprisoned for life, and the same thing will happen if he is acquitted. Even with the benefit of the Fifth Amendment's ban on coerced self-incrimination and the exclusionary rule, Ghailani has exactly zero chance of ever regaining his freedom. So what exactly is the point of the trial?

Asked whether Ghailani will be returned to military custody if his trial does not turn out the way the government wants, Attorney General Eric Holder dodged the question, saying, "We intend to proceed with this trial." But there is no need to be coy. As I noted more than a year ago, detaining terrorism suspects after they're acquitted is the Obama administration's publicly declared policy.