Anti-anti-terrorists don’t much care what happens to al-Qaeda so long as we’re treated to the “reckoning” against Bush-administration officials promised by Eric Holder during the 2008 Obama campaign. These deranged souls have just suffered a black Monday. That was when Manhattan federal judge Lewis Kaplan ruled that allegations of torture were no reason to dismiss the case against a jihadist accused of conspiring to bomb the United States embassies in Kenya and Tanzania.
Those simultaneous attacks in August 1998 killed at least 224 people, most of them Muslims. Afterwards, Ahmed Khalfan Ghailani, then a 23-year-old from Zanzibar, bounced around al-Qaeda’s havens until 2004, when he was finally captured in Pakistan after a fierce firefight. He was then turned over to the CIA. Deemed a high-value detainee, he was interrogated by the agency at one or more of its “black site” prisons outside the U.S. During this period, Ghailani alleges, he was subjected to what the CIA has called “enhanced interrogation techniques” and what he calls “torture.” Subsequently, he was detained at the Guantanamo Bay naval base until last June, when the Obama administration opted to transfer him for a civilian trial in New York City.
Unlike the similar effort — now stalled — to try Khalid Sheikh Mohammed and four other 9/11 plotters in the same courthouse, Ghailani’s transfer caused nary a whimper. That was understandable. There was no military-commission system when the embassies were savaged. That is not a legal bar to trying pre-9/11 war crimes by commission; indeed, the Obama administration has consigned the bombers of the USS Cole to a commission trial, even though their attack occurred nearly a year before 9/11. There was, however, a second consideration in Ghailani’s case: The embassy bombings have already been the subject of a lengthy civilian trial, during which one terrorist pleaded guilty and four others were convicted. The Justice Department could plausibly argue that its case could be proved by relying, in the main, on evidence that has already been publicly disclosed. Thus, the classified-information-disclosure issues that beset post-9/11 prosecutions would not be as dicey.
Or would they? Ghailani fully intended to move them front and center. He made a pretrial motion to dismiss the case based on outrageous government misconduct. This claim, rooted in the oxymoronic doctrine of “substantive due process,” was drummed up by the Supreme Court in the 1952 case of Rochin v. California, in which police subjected a suspect to harrowing physical abuse, forcing him to emit the illegal narcotics that the state then used to prosecute him. The drastic remedy of dismissing an indictment is available only when there has been truly egregious misconduct that “shocks the conscience.” That amorphous standard is situational: Aggressive tactics that are shocking in some circumstances (like ordinary, peacetime law enforcement) may be justifiable in others (like wartime intelligence-gathering against mass murderers).
So, does the court’s rejection of Ghailani’s motion mean the judiciary has stamped its seal of approval on harsh interrogation? Not at all. In fact, the government declined to respond to the terrorist’s claims of abuse and took no position on whether, if true, those claims amount to a due-process violation. The court made no ruling on whether there had been torture.
The government instead contended that there was a critical element missing from Ghailani’s motion: causation. If the alleged torture didn’t have anything to do with the case — if the claimed abuse played no role in Ghailani’s being captured and brought into the court’s jurisdiction, if its fruits formed no part of the evidence against him — then, prosecutors argued, it is irrelevant for purposes of the criminal trial.
Carefully construing the precedents on this point, Judge Kaplan agreed. He stressed that the government had committed not to use anything Ghailani told the CIA against him. Thus, he reasoned, “any deprivation of liberty that Ghailani might suffer as a result of a conviction in this case would be entirely unconnected to the alleged due process violation. Even if Ghailani was mistreated while in CIA custody and even if that mistreatment violated the Due Process Clause, there would be no connection between such mistreatment and this prosecution.”
That doesn’t leave the terrorist without a remedy. Still, any redress, Kaplan held, “must be found outside the confines of this criminal case” — in a civil lawsuit or a separate prosecution against any agent who actually broke the law.
The decision will dishearten Bush-bashers. There are, of course, many people who believe — quixotically, but in good faith — that civilian prosecutions of enemy combatants would somehow improve our security by reaffirming “our values.” By contrast, hardcore leftists want these trials in civilian court for the reckoning. They figure civilian due-process rules will make it easier for terrorist defendants to obtain discovery about, and sensationally litigate, Bush counterterrorism tactics — which these leftists regard as “war crimes.”
Judge Kaplan has now laid down markers the Justice Department can use to argue that harsh interrogations are not pertinent to terrorism trials: As long as the government is not relying on them in any way, evidence about them should be excluded. To be sure, ruling that an indictment should not be dismissed pretrial is not the same thing as ruling that “torture” evidence is wholly inadmissible during trial — there are still ways for jihadists to try to turn the proceedings into an anti-American inquisition. But having reasoned that coercive CIA questioning after a terrorist attack has no bearing on whether one is guilty of that attack, the court has placed a high relevancy hurdle in front of accused terrorists who were hoping to exploit claims of abuse for jury-nullification purposes.
It is also worth noting that Ghailani is not charged just with blowing up the embassies. The indictment against him alleges the overarching al-Qaeda conspiracy to murder Americans — going back to 1991. The same indictment, with a few tweaks to add the terrorist rampages that occurred after the embassy bombings, could easily be used to charge the 9/11 plotters, as well as other enemy combatants.
Despite all the outrage it stirred, Attorney General Holder has not abandoned his push for a civilian trial of KSM et al. in New York. Don’t be surprised if the Justice Department uses the Ghailani ruling to argue that the naysayers’ concerns about giving KSM a soapbox are overblown. Don’t be surprised if Justice tries to slide the 9/11 attacks right into the embassy-bombing indictment. That would land KSM squarely before Judge Kaplan.
– Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America, to be published by Encounter Books on May 25, 2010.