Litigation

Debate Over Terror Trials Rages On

By Peter Hardin

When a federal judge ruled that a star witness could not be called in a terror trial case due to coercion of the defendant, who had identified the witness, it stoked the debate over trying terror suspects in civilian courts verus before military tribunals.

Judge Lewis Kaplan issued the ruling in the case of Ahmed Khalfan Ghailani, who faces conspiracy charges tied to bombings of U.S. embassies in Kenya and Tanzania in 1998 (see Gavel Grab).

“Torture is not only morally reprehensible; it is legally toxic,” the Washington Post editorialized about Judge Kaplan’s ruling, noting that Justice Department officials did not contest torture allegations by Ghailani, who had been held and questioned in CIA custody.

With those who say the developments argue for trying terror suspects before military commissions, the editorial took issue. It asserted that the tribunals are barred from using evidence obtained by torture, and “the results in the case would likely have been the same.”

In a subsequent Washington Post op-ed, Marc Thiessen took a different tack, saying the key witness “almost certainly” would be permitted to testify in a trial before a military commission at Guantanamo Bay, where more permissive rules of evidence exist for the military commissions.

“Some critics have tried to argue that the Ghailani case shows the folly of enhanced interrogation techniques, not the folly of civilian trials for terrorists. If anything, the Ghailani case proves the opposite,” Thiessen wrote.

Former federal prosecutor Annemarie McAvoy wrote a Fox News opinion piece entitled, “Big Blow to Government Terror Trial Demonstrates Why Military Tribunals Are so Integral to Fighting Terrorists. ” Jack Goldsmith, an assistant attorney general in the administration of President George W. Bush, advocated still another approach  in a New York Times commentary headlined, “Don’t try terrorists, lock them up.”

But in Huffington Post, Daphne Eviatar of Human Rights First  wrote:

“[I]n the end, a fair trial for a suspected terrorist in a respected federal court will do far more to defeat al Qaeda and its associates — and to bolster the image of the United States in the world — than will foregoing justice altogether.”

Prosecutors have elected not to appeal the judge’s ruling, and the trial was scheduled to begin Tuesday, the Wall Street Journal reported.

Full post as published by The Gavel on October 12, 2010 (boomark / email).