[tater]

Great stuff by Andy McCarthy (who knows more than a little about trying terrorists in civilian court):

Obama officials are now complaining about “torture.” Their spin
today is that we were lucky to get the one conviction we got given that the
Bush administration abused the defendant, resulting in the suppression of
evidence. Of course, this does not match up with statements they’ve been
making for months, expressing complete confidence in their ability to get a
just result. Nor does it jibe with the facts that this case was indicted years
before there was a 9/11 or a Bush administration, and that the government in
2001 managed to get sweeping convictions against four terrorists based on
the case as it existed in 1999.

The brute fact here is that DOJ got unlucky. Jury selection is tricky, and
prosecutors ended up with a bad juror who refused to deal rationally with the
evidence. When that happens, you either get a mistrial or the jurors
compromise in a way that can be unsavory. That is not the Bush
administration’s fault.

Speaking of unsavory, though, the Obama Justice Department took a
calculated risk, they’ve gotten burned on it, and it’s scape-goating to try to
shift the spotlight to the Bush counterterrorism tactics. Judge Lewis Kaplan’s
pretrial ruling, denying prosecutors the ability to call a key witness (who sold
Ghailani TNT), was very questionable. The Justice Department could have
appealed it, but elected not to. DOJ decided to roll the dice with what was left
of the case.

That they lost does not necessarily mean it was a bad gamble. The case they
put on clearly persuaded most of the jurors, and who knows whether the TNT
witness would have brought the loopy juror around? But let’s face it: in opting
against appeal, the Justice Department left itself vulnerable to the claim that
it failed to do everything it could have done to try to bring its best case.

Judge Kaplan’s ruling might have been upheld, but that’s anything but clear.
Ghailani was not tortured by the CIA – in fact, he wasn’t even water-boarded.
He was surely coerced in an aggressive way that would have made his
confession inadmissible. But there’s a big difference between using a coerced
confession against someone (which was not done) and calling a witness the
government learns about by coercion. The witness’s testimony is not scripted
by the confession – the witness has to come to court separately, provide
information from his perspective (not the defendant’s), be subjected to cross
examination, etc. Plus, even if you think the CIA’s tactics (whatever they
were) went too far, Ghailani was later interviewed by the FBI and repeated
the same information, under gentler questioning.

Judge Kaplan assumed that the alien terrorist had a Fifth Amendment
privilege, and the Obama administration does not seem to have contested
that assumption. This led the judge to conclude that the “fruit of the
poisonous tree” doctrine applied. To permit the witness’s testimony, Kaplan
reasoned, would violate Ghailani’s purported Fifth Amendment rights – i.e.,
evidence traceable to the CIA’s interrogation would be introduced against
him. But there was nothing “poisonous” about what the CIA did – they were
not rogue cops kicking down an American citizen’s door without a warrant;
they were gathering life-saving intelligence from a foreign enemy during
wartime. And, again, a witness’s testimony is not really the “fruit” of that
tree; it is related but independent in a way the substance of the confession is not.

I think the administration should have appealed and should not have
conceded Ghailani full Fifth Amendment protection. But reasonable minds can
differ, including about whether the appeal would have been successful,
whether further delay would have damaged the case (given the difficulty of
getting testimony from Kenya and Tanzania about events that happened a
dozen years ago), and whether even a successful appeal and the TNT
witness’s testimony would have made a difference to the juror who needed
convincing. Americans would have a lot more respect for the Obama
administration if it forthrightly explained the difficult choices it had to make
rather than dragged out that grating retread: It’s all Bush’s fault.

http://www.nationalreview.com/corner...-andy-mccarthy

McCarthy also says the guy is gonna spend life in prison for that one count, and that some on the right are accusing Holder of stuff he had nothing to do with (the indictment was handed down before 911, after all).