In October a federal judge threw out a key witness against Ahmed Khalfan Ghailani, the former Guantanamo inmate who is accused of participating in the 1998 bombings of the U.S. embassies in Kenya and Tanzania. The witness, who was identified through Ghailani’s coerced statements, was supposed to testify that he sold the defendant the TNT used to blow up the embassy in Tanzania. But U.S. District Judge Lewis A. Kaplan concluded that the testimony was too closely tied to information the CIA had obtained from Ghailani while holding him at a secret prison where he says he was tortured.
Conservatives who think terrorism suspects should never receive civilian trials said the exclusion of this testimony showed they were right. So did civil libertarians who argue that the federal courts are perfectly capable of handling terrorism cases. But whether or not the system is working, Kaplan’s ruling suggested it is ultimately irrelevant.
“It is appropriate to emphasize,” Kaplan wrote, “that Ghailani remains subject to trial on the pending indictment, that he faces the possibility of life imprisonment if convicted, and that his status as an ‘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 this case.” Barring a formal surrender by Al Qaeda, these “hostilities” will continue indefinitely, so detention for their duration amounts to a life sentence—the same punishment Ghailani is apt to receive if he is found guilty.
If Ghailani is convicted, in other words, he will be imprisoned for life, and the same thing will happen if he is acquitted. Even with the benefit of the Fifth Amendment’s ban on coerced self-incrimination and the exclusionary rule, Ghailani has zero chance of regaining his freedom. So what exactly is the point of the trial?
In a New York Times op-ed piece published after Kaplan’s ruling, Harvard law professor Jack Goldsmith, an assistant attorney general during the Bush administration, noted that “trials are perceived to be more legitimate than detention.” But Goldsmith, who favors military detention of suspected terrorists, added that “a conviction in a trial publicly guaranteed not to result in the defendant’s release will not be seen as a beacon of legitimacy.”
Asked whether Ghailani will be returned to military custody if his trial does not turn out the way the government wants, Attorney General Eric Holder dodged the question, saying, “We intend to proceed with this trial.” Holder’s coyness was not really necessary, because the administration already has publicly stated that it reserves the right to detain terrorism suspects who are acquitted.
“If you have the authority under the laws of war to detain someone,” Pentagon General Counsel Jeh Johnson told the Senate Armed Services Committee in July 2009, “it is true irrespective of what happens on the prosecution side.…If there’s an acquittal…we would have the ability to detain him.”
One reason for nevertheless going through the motions of a trial, Goldsmith suggested, is the possibility of capital punishment. But the Justice Department is not seeking the death penalty in Ghailani’s case, and in any event President Barack Obama claims he can kill suspected terrorists without permission from a court.
Under his policy of “targeted killings,” Obama can authorize the summary execution of anyone he unilaterally identifies as a member or accomplice of Al Qaeda, including American citizens. Since this administration, like the last one, views the entire world as a battlefield in the war on terrorism, that means enemies of the state can be killed anywhere at any time—except, presumably, if they have been taken into custody and are being prosecuted in federal court.
Which suggests a third option for Ghailani, in addition to life imprisonment upon conviction and indefinite detention upon acquittal. The government could simply let him go—and then kill him.