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.