The case for handling terrorists outside the civil legal system has now received support from an unlikely quarter: Judge Lewis Kaplan of Federal District Court in Manhattan. Judge Kaplan presided over the trial of Ahmed Ghailani, who was just acquitted in 284 out of 285 counts relating to the 1998 bombing of two U.S. embassies in Africa. The verdict is largely the result of the prosecution’s decision not to introduce Ghailani’s own confession, obtained while he was being held at Guantanamo, and of the judge’s decision not to admit the evidence of a witness who said he had sold Ghailani the explosives used to blow up the embassy in Tanzania. In a fascinating tidbit, the New York Times notes:
The judge himself recognized the significance of excluding the witness when he said in his ruling 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, the judge fully expected that Ghailani would not be released regardless of the outcome in his court. Thankfully, that seems a good bet. For all President Obama’s miscalculation in sending Ghailani to a normal criminal court, he also remains committed to holding some detainees indefinitely simply because of the risk they would pose — a risk that has been amply documented by the number of Gitmo detainees released by the Bush administration who have gone back to terrorism. Ironically, Obama’s decision to employ criminal courts was designed to improve America’s image in the world, but our image will actually suffer more from holding indefinitely a suspect who has been largely acquitted by a jury than it would if there were no jury trial to begin with.