Despite all the hand-wringing from the right over the possibility that the prosecution of alleged Tanzanian Embassy bomber Ahmed Khalfan Ghailani might be jeopardized by torturous interrogations, it looks like the trial is set to go forward anyway.
Ghailani, 36, is charged with conspiring with others including Osama bin Laden to blow up two U.S. embassies in Africa in August 1998. The attacks killed 224 people, including 12 Americans. If convicted, Ghailani could face life in prison.
Prosecutors will proceed without their top witness after U.S. District Judge Lewis A. Kaplan ruled last week that the man's testimony that he sold explosives to Ghailani must be excluded because the government only learned about him after Ghailani was interrogated at a secret overseas CIA camp after his 2004 arrest where harsh interrogations occurred.
Ghailani, a Tanzanian, was arrested in Pakistan. The government has chosen not to use statements he made after his arrest at trial, unless Ghailani testifies. Ghailani has been accused by the government of being a bomb maker, document forger and aide to bin Laden. He has denied knowing that TNT and oxygen tanks he delivered would be used to make a bomb.
Maybe the loss of the government's main witness wasn't as much of a blow to the case as initially thought? There isn't really a risk Ghailani will go free if acquitted -- the administration would likely just detain him as an enemy combatant -- but it would be a terrible political blow to the administration's arguments regarding terror suspects and civilian trials by making a mockery of due process.
Also, today is the 10th anniversary of the U.S.S. Cole bombing, and former FBI Agent Ali Soufan, who helped track down the perpetrators, argues in The New York Times that the case against alleged mastermind Abd al-Rahim al-Nashiri, (who was also tortured) could be bolstered by pressing Yemen to hand over two men, Jamal al-Badawi and Fahd al-Quso, who confessed to being involved in the attack. As Dafna Linzer reported last week, the case against Abdul Rahim Mohammed Uthman is in trouble because two of the government's witnesses -- who are also witnesses in the al-Nashiri case -- had been tortured.
Soufan's op-ed contains an implicit dig at supporters of so-called enhanced interrogations, appropriate considering the harm they've caused to the government's ability to prosecute terror suspects:
Mr. Nashiri has yet to be tried because he was subjected to waterboarding and other so-called enhanced interrogation techniques, rendering his statements legally problematic, even those given after interrogators stopped using the counterproductive measures.
Fortunately, there is enough evidence to convict Mr. Nashiri based on confessions we gained legally from Mr. Badawi and Mr. Quso — we even read them the Miranda warning — and from other physical evidence we found during the investigation. Their presence in court would enable us to use their confessions.
Conservatives accused Obama of "playing politics" when he delayed al-Nashiri's military commission, but obviously there's reason to believe they might not be able to secure a conviction given the state of the evidence. They've also accused the administration of "insensitivity" toward the families of the victims. It's an odd argument, since as Soufan notes, neither the Clinton nor the Bush administration ever met with the families of the victims. The Bush administration, according to Soufan, considered the case "stale," as apparently did conservative commentators prior to the moment it became useful as a weapon against the new administration.
