The Corner

Terror Trial Update: DOJ Will Not Appeal Ruling Suppressing Key Witness’s Testimony

My old office, the U.S. attorney’s office in Manhattan, announced on Sunday that it had decided not to appeal federal judge Lewis Kaplan’s decision barring prosecutors from calling the witness from whom accused terrorist Ahmed Ghailani purchased the TNT used to bomb the American embassy in Tanzania in August 1998. (Judge Kaplan’s ruling was the subject of my column over the weekend.)

There are two likely explanations for this decision. The first is that the Justice Department obviously believes it has enough evidence to convict Ghailani, even without the witness and without Ghailani’s confession. U.S. attorney Preet Bharara is a very sharp guy, so it is inconceivable to me that he would roll the dice were that not the case. It probably means more emphasis on the counts that focus on the overarching al Qaeda conspiracy to kill Americans rather than on the embassy attacks, although these things are mutually reinforcing — i.e., if a juror is convinced that Ghailani joined al Qaeda and wedded himself to its goals, it is much easier to believe he was involved in the embassy bombings even if the evidence supporting the latter is no longer as strong.

The second reason involves the downsides of delay. An appeal to the Second Circuit could entail months of delay, and there is no assurance that the appellate court would reverse Judge Kaplan. Meantime, hundreds of people have already been summoned for jury selection, which has already been underway. The government has already tracked down and brought to New York witnesses from around the globe, and accommodations have already been made for victims’ families from Tanzania and Kenya. Furthermore, the prosecution has already been hurt by delay, some witnesses having died or gone missing since the embassy bombing was last tried in 2001. Plainly, the Obama administration is determined to try this case in the civilian system. That being the bottom line, the Justice Department has weighed the options and decided that the uncertainty of getting a better ruling from the appellate court did not justify the risks and costs of further delay.

Let’s hope they’re right. Jury selection will resume on Tuesday, with opening statements to follow.

Most Popular

Law & the Courts

‘Judges for the #Resistance’

At Politico, I wrote today about the judiciary’s activism against Trump on immigration: There is a lawlessness rampant in the land, but it isn’t emanating from the Trump administration. The source is the federal judges who are making a mockery of their profession by twisting the law to block the Trump ... Read More
White House

Trump’s Friendships Are America’s Asset

The stale, clichéd conceptions of Donald Trump held by both Left and Right — a man either utterly useless or only rigidly, transactionally tolerable — conceal the fact that the president does possess redeeming talents that are uniquely his, and deserve praise on their own merit. One is personal friendliness ... Read More

Columbia 1968: Another Untold Story

Fifty years ago this week, Columbia students riding the combined wave of the civil-rights and anti-war movements went on strike, occupied buildings across campus, and shut the university down. As you revisit that episode of the larger drama that was the annus horribilis 1968, bear in mind that the past isn’t ... Read More

Only the Strident Survive

‘I am not prone to anxiety,” historian Niall Ferguson wrote in the Times of London on April 22. “Last week, however, for the first time since I went through the emotional trauma of divorce, I experienced an uncontrollable panic attack.” The cause? “A few intemperate emails, inadvertently forwarded ... Read More

Poll Finds Nevada Voters Support School-Choice Programs

According to an April poll, a large number of Nevada voters support school-choice programs. The poll, conducted by Nevada Independent/Mellman, found that 70 percent of voters support a proposal for a special-needs Education Savings Account and 59 percent support expanding the funding for the current tax-credit ... Read More

Microscopic Dots. Let’s Look at Them.

Stuart E. Eizenstat has written a big book on the Carter presidency. (Eizenstat was Carter’s chief domestic-policy adviser. He also had a substantial hand in foreign affairs.) I have reviewed the book for the forthcoming NR. Eizenstat tells the story of a meeting between President Carter and Andrei Gromyko, the ... Read More