It has been clear for years that the Bush administration's decision to torture captured al-Qaida terrorists leaves the United States in a wretched position when it comes to determining the prisoners' ultimate fate.
No American court ever is going to allow the admission of confessions or evidence obtained by torture. Thus, despite the federal judiciary's flawless record of dealing firmly and equitably with cases of domestic and foreign terrorism, the Bush-Cheney White House made sure that trying these criminals would be hideously difficult.
President Obama came to office promising to end torture, close down the secret prisons in which it occurred and send the al-Qaida terrorists — including Khalid Sheikh Mohammed, the self-proclaimed Sept. 11 mastermind and boastful murderer of journalist Daniel Pearl — into federal court, where they belong. Last week we saw just how difficult that process will be and, more disturbing, how ambivalent the Obama administration really is about the process.
Early in the week, federal officials were congratulating themselves over the life sentence imposed on Faisal Shahzad, the Pakistani-born American citizen who pleaded guilty to 10 terrorism and weapons charges stemming from his failed attempt to explode a car bomb in New York City's Times Square.
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But those same officials later seemed stunned when U.S. District Judge Lewis A. Kaplan barred testimony by a key government witness in the case of another accused terrorist, Ahmed Khalfan Ghailani, who allegedly organized the 1998 bombings of the U.S. embassies in Kenya and Tanzania, killing 224 people. Ghailani was apprehended in Pakistan in 2004 and then — for five years — held in secret CIA prisons, where he was tortured. Kaplan ruled that a man who says he sold Ghailani the explosives cannot be called to testify because the government learned about him from interrogating Ghailani, and the government is known to have "coerced" testimony from Ghailani.
Kaplan wrote that although he was "acutely aware of the perilous nature of the world in which we live... the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction."
It's a handsome sentiment, but Kaplan then went on in an apparent — and probably fruitless — attempt to inoculate himself against criticism that even if Ghailani is acquitted, his status as an "enemy combatant" will allow the government to hold him in military custody forever.
Attorney General Eric Holder previously expressed a similar belief about the Mohammed case.
There are names for trials with predetermined outcomes, and none of them is pretty.
Jack Goldsmith, the conservative legal scholar who so courageously braved the displeasure of the Bush-Cheney White House when he served as head of its Office of Legal Counsel, wrote that all this makes him "wonder why the government is bothering to try Ghailani.... It can hardly bring the hoped-for legitimacy benefits if the government and the judge publicly agree that the defendant, if acquitted, will remain behind bars indefinitely."
The Obama administration cannot have things both ways when it comes to the rule of law and national security. It cannot have the legitimacy that constitutionalism confers and the illusionary certainty that Bush's delusional authoritarianism seemed to create.