When Attorney General Eric Holder announced the Khalid Sheik Mohammed and the other alleged 9/11 conspirators would be tried in civilian court, he also announced that Abd al-Rahim al-Nashiri, who is suspected of masterminding the bombing of the U.S.S. Cole, would be tried by military commission. Today Charlie Savage reports that it has a great deal to do with the type of evidence against him. Holder, if you'll remember, cited the fact that the Cole was a military target in explaining the decision to use the military commissions, but it's an open secret that isn't the case:
But several current and former officials familiar with the case say that concerns about the evidence against Mr. Nashiri were an overriding factor. Prosecuting him under the more stringent rules of civilian court would have been perilous. Most of that evidence consists of hearsay — statements made outside court, like the former detainee’s account of what he said he heard Mr. Nashiri say in April 2001.In other words, relaxed rules about the admissibility of hearsay make the commissions a more attractive venue in a circumstance where the government's case relies on hearsay. Al-Nashiri maintains his innocence, and the case may be at the heart of a constitutional challenge to the military commissions. The latter reason explains why the administration wouldn't want to risk trying KSM and his alleged co-conspirators in civilian court.In a civilian trial, hearsay statements generally cannot be introduced because there is no opportunity for defense lawyers to cross-examine the witness. But under commission rules, F.B.I. agents could tell a military jury what Mr. Nashiri told the detainee, according to the detainee.
An important point to make here: The case against al-Nashiri, even in the military commissions, will be the result of investigative work by the FBI. The statements given to the CIA under torture will be entirely useless. Remember that when conservatives start talking about how the FBI can't do counterterrorism.
-- A. Serwer
