Obama officials are now complaining about “torture.” Their spin today is that we were lucky to get the one conviction we got given that the Bush administration abused the defendant, resulting in the suppression of evidence. Of course, this does not match up with statements they’ve been making for months, expressing complete confidence in their ability to get a just result. Nor does it jibe with the facts that this case was indicted years before there was a 9/11 or a Bush administration, and that the government in 2001 managed to get sweeping convictions against four terrorists based on the case as it existed in 1999.
The brute fact here is that DOJ got unlucky. Jury selection is tricky, and prosecutors ended up with a bad juror who refused to deal rationally with the evidence. When that happens, you either get a mistrial or the jurors compromise in a way that can be unsavory. That is not the Bush administration’s fault.
Speaking of unsavory, though, the Obama Justice Department took a calculated risk, they’ve gotten burned on it, and it’s scape-goating to try to shift the spotlight to the Bush counterterrorism tactics. Judge Lewis Kaplan’s pretrial ruling, denying prosecutors the ability to call a key witness (who sold Ghailani TNT), was very questionable. The Justice Department could have appealed it, but elected not to. DOJ decided to roll the dice with what was left of the case.
That they lost does not necessarily mean it was a bad gamble. The case they put on clearly persuaded most of the jurors, and who knows whether the TNT witness would have brought the loopy juror around? But let’s face it: in opting against appeal, the Justice Department left itself vulnerable to the claim that it failed to do everything it could have done to try to bring its best case.
Judge Kaplan’s ruling might have been upheld, but that’s anything but clear. Ghailani was not tortured by the CIA – in fact, he wasn’t even water-boarded. He was surely coerced in an aggressive way that would have made his confession inadmissible. But there’s a big difference between using a coerced confession against someone (which was not done) and calling a witness the government learns about by coercion. The witness’s testimony is not scripted by the confession – the witness has to come to court separately, provide information from his perspective (not the defendant’s), be subjected to cross-examination, etc. Plus, even if you think the CIA’s tactics (whatever they were) went too far, Ghailani was later interviewed by the FBI and repeated the same information, under gentler questioning.
Judge Kaplan assumed that the alien terrorist had a Fifth Amendment privilege, and the Obama administration does not seem to have contested that assumption. This led the judge to conclude that the “fruit of the poisonous tree” doctrine applied. To permit the witness’s testimony, Kaplan reasoned, would violate Ghailani’s purported Fifth Amendment rights – i.e., evidence traceable to the CIA’s interrogation would be introduced against him. But there was nothing “poisonous” about what the CIA did – they were not rogue cops kicking down an American citizen’s door without a warrant; they were gathering life-saving intelligence from a foreign enemy during wartime. And, again, a witness’s testimony is not really the “fruit” of that tree; it is related but independent in a way the substance of the confession is not.
I think the administration should have appealed and should not have conceded Ghailani full Fifth Amendment protection. But reasonable minds can differ, including about whether the appeal would have been successful, whether further delay would have damaged the case (given the difficulty of getting testimony from Kenya and Tanzania about events that happened a dozen years ago), and whether even a successful appeal and the TNT witness’s testimony would have made a difference to the juror who needed convincing. Americans would have a lot more respect for the Obama administration if it forthrightly explained the difficult choices it had to make rather than dragged out that grating retread: It’s all Bush’s fault.