Criticism of Federal Courts for Terrorism Trials Once Again Falls Flat

10/20/2010 05:47 pm ET | Updated May 25, 2011
  • Daphne Eviatar Senior Counsel, Law and Security Program, Human Rights First

I had thought that National Review columnist Andrew McCarthy's criticisms of federal court trials for suspected terrorists had been thoroughly discredited, ever since we learned that his frequent criticism that civilian trials hand our enemies classified evidence to use against us was shown to be complete malarkey. As my former colleague Spencer Ackerman has pointed out, the one case frequently cited as evidence that federal civilian trials fail to protect classified evidence was actually a case prosecuted by Andrew McCarthy himself. And, as my colleagues at Human Rights First explained in a report titled Pursuit of Justice, given the Classified Information Procedures Act and other means of filing sensitive information with the federal courts under seal, prosecutor McCarthy could easily have protected that information from ever becoming public.

But apparently his reasoning is still taken seriously. In Wednesday's International Herald Tribune, Richard Bernstein calls McCarthy still "the most visible legal expert arguing against using regular civilian courts to try foreign terrorism suspects."

At the risk of repeating myself, let me just recount a few relevant facts.

First, civilian courts have convicted more than 400 terrorists since the 9/11 terrorist attacks, including four more men just this week who'd planned to blow up a Bronx synagogue. Military commissions have convicted only four, and generally meted out much lighter sentences, in part because their legal standing is so dubious.

Second, the military is simply not in a position to conduct the sort of complex criminal investigations that are the FBI's specialty. Soldiers are trained to fight battles in a war zone; the FBI is trained to collect, preserve and analyze evidence in a crime scene. As a senior FBI agent testified in the New York federal court terrorism trial of Ahmed Khalfan Ghailani this week, within 24 hours of the bombing of the U.S. embassy in Tanzania, the FBI had flown a team of 50 agents over to scour the remains of the bombed-out embassy and its environs for all relevant evidence, secure the crime scene, collect that evidence and keep it from deteriorating or being otherwise compromised. The agents quickly found twisted shards of metal they were able to identify as part of the white Nissan truck that had been transformed into a multiple-ton bomb. And they quickly traced those shards of metal to the former owners and purchasers of the truck - and eventually to Ghailani himself. Such forensic evidence allowed the government to convict four previous defendants for their roles in the bombings back in 2001. (Ghailani wasn't found and arrested until 2004. More information on the case can be found here.) The 98-page FBI report and 661 items recovered from that crime scene 12 years ago are likewise playing a key role in this case.

Contrast this case with another trial going on in the military commissions - the trial of the Canadian alleged child soldier, Omar Khadr, which I watched unfold in August at Guantanamo Bay. In that case, Colonel W (his full name was not disclosed) testified that the soldiers left the scene after the firefight that led to the U.S. soldier's death. When they returned, they learned that villagers had gathered, looted the site for usable items, and dragged away five bodies of dead Afghans, which they'd immediately buried. Col. W testified that it hadn't occurred to the military to secure the compound, collect evidence or treat the area as a crime site, because that wasn't what they were there to do; they were fighting a war.

"No one at that time ever believed we'd be in a court in a trial like this over a terrorist," he testified.

Of course, it is at times appropriate to capture enemy fighters in wartime and detain them for a limited period that complies with the laws of war. But acts of terrorism far from any battlefield -- such as the 1998 U.S. embassy bombings or the September 11, 2001 terrorist attacks -- are mass murders by heinous criminals. For policy reasons, it's best not to elevate them to the status of warriors and satisfy their wildest al Qaeda dreams of martyrdom. And for practical reasons, the best way to collect reliable evidence and convict mass murderers is to rely on the experts best trained to do that: the FBI and specialized federal prosecutors.

Andrew McCarthy is apparently furious that the government is having difficulties with the Ghailani trial. But the problem is hardly the federal court; it's a slew of bad decisions by the Bush administration. The first mistake was to hold Ghailani in a secret CIA prison for two years after his arrest, where he was subjected to such abusive "enhanced interrogation techniques" that the government now admits his "confessions" were coerced and inadmissible. They'd be just as inadmissible in a military commission.

As Richard Bernstein notes, Judge Lewis Kaplan also refused to allow the government to present a witness who was identified by Ghailani during that coercive CIA interrogation, since evidence derived from torture or coercion is also inadmissible in federal court. But Bernstein neglects to mention that Judge Kaplan's detailed and lengthy opinion explaining his ruling also reveals that he found that government witness - a man who allegedly sold TNT to Ghailani, but who never testified in any of the earlier trials of the bombings -- to be completely untrustworthy and unreliable. Even if his testimony hadn't been derived by torture, then, it's not clear it would have been helpful to the government's case.

The real problem with the Ghailani case is not that the judge has excluded this one piece of evidence -- a ruling the government decided not even to appeal. The problem is that the Bush administration made the evidence against him unusable by using torture and coercion to get it. The Bush administration also prejudiced its own case by imprisoning Ghailani for six years without trial. Now, many of the government's witnesses, many of which have been flown to New York from Tanzania to testify to the impact of the bombing and the tragic events that led to it, can't really remember what happened, who they talked to or what they told investigators a dozen years ago.

Fortunately for the government, FBI agents took detailed notes, preserved the evidence, and are still offering it up in usable form. Having watched the trial since its inception, in my view, the FBI agents so far have easily been the government's most credible and helpful witnesses.

Although McCarthy has evidently presumed Ghailani's guilt before he's even presented his defense, fortunately, that's not the role of any federal justice system. The government must prove to the jury both that Ghailani purchased explosives and that he intended to use them in a bomb. As an FBI agent testified on the stand earlier this week, TNT is also used commonly in commercial demolitions and mining operations, and was readily available for those uses in the markets of Tanzania.

Ghailani allegedly confessed to knowing about the bombing plans while he was being tortured in a secret CIA prison. While McCarthy and others may lament the loss of that evidence in this case, tortured confessions are not admissible in either civilian courts or in military commissions. No matter where he were tried, the government would have to come up with more reliable evidence of Ghailani's guilt than that.