President Obama’s policy of putting terrorists on trial in civilian courts rather than military tribunals has spectacularly failed this week when Ahmed Ghailani was acquitted of the murder of 224 innocent people including Americans at the 1996 American embassy bombings in Kenya. He was found guilty of just one of more than 280 charges.
The problem with this trial was not the jury, but the fact that the jury was not allowed to see key evidence in part due to rulings by the judge in charge of the trial, in part because providing all the evidence in a civilian trial would expose our field operatives in the intelligence agencies and endanger American security by giving our enemies valuable intelligence on our operations against them. You cannot try an enemy combatant in an American civilian court while the fight against the enemy goes on. We have military tribunals for cases like this.
This failure of a policy that Obama and his Attorney General, Eric Holder, were warned about repeatedly (see Obama’s Show Trial of Khalid Sheikh Mohammed), should result in Eric Holder immediately resigning, Obama reversing his policy and putting terrorist on trial in military tribunals and Obama apologizing to the American people for his foolish behavior.
Watch Senator Lindsey Graham grill Eric Holder on this issue earlier this year:
A man who cannot bring himself to say that Radical Islam caused recent terrorist attacks is unfit to be Attorney General or hold any other position responsible for America’s security:
See Eric Holder: Another Obama Cabinet Member Who Should Be Fired for Incompetence in the War on Islamic Terrorism for more of the context surrounding this video.
Radio talk show host Hugh Hewitt has passionately attacked the failure of Obama’s policy both on his show and on his blog. He quotes Supreme Court Justice Antonin Scalia:
But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps troops serving in Afghanistan?) and to classified information. See ante, at 54–55. During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. See Minority Report 14–15. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities. See id., at 15.
Hewitt, who is also a lawyer and teaches Constitutional Law, concludes:
Hopefully all but the most ideologically blinded of the cheerleaders of this manifestly unworkable and unnecessary process will now recognize their own folly and all future proceedings for unlawful combatants who are not American citizens will take place in military tribunals conducted at Gitmo. Hopefully at least one more Supreme Court Justice will blink in sudden recognition of the awful injustice their “reasoning” has produced and appropriately defer to the combined judgments of the Article I and Article II authorities on a matter of national security.
Hopefully at least some on the the academic left will shut up about that which they nothing about –the difficulty of trying unlawful combatants with civilians in the jury box and prosecutors unable to use evidence both because of evidentiary standards that ought not to be applicable to terrorists captured abroad and because of the the fear of compromising the methods and sources of intelligence gathering.
If these are the results of this case, perhaps the families of the victims of the massacre perpetrated by Ahmed Ghailani will receive some comfort that while the killer was acquitted of these murders, the manifest and shocking injustice of that result has curbed at least for a while the insanity of the American legal left, and especially its most prominent and powerful members, Barack Obama and Eric Holder.