Anti-anti-terrorists don’t much care what happens to al-Qaeda so long as we’re treated to the “reckoning” against Bush-administration officials promised by Eric Holder during the 2008 Obama campaign. These deranged souls have just suffered a black Monday. That was when Manhattan federal judge Lewis Kaplan ruled that allegations of torture were no reason to dismiss the case against a jihadist accused of conspiring to bomb the United States embassies in Kenya and Tanzania.
Those simultaneous attacks in August 1998 killed at least 224 people, most of them Muslims. Afterwards, Ahmed Khalfan Ghailani, then a 23-year-old from Zanzibar, bounced around al-Qaeda’s havens until 2004, when he was finally captured in Pakistan after a fierce firefight. He was then turned over to the CIA. Deemed a high-value detainee, he was interrogated by the agency at one or more of its “black site” prisons outside the U.S. During this period, Ghailani alleges, he was subjected to what the CIA has called “enhanced interrogation techniques” and what he calls “torture.” Subsequently, he was detained at the Guantanamo Bay naval base until last June, when the Obama administration opted to transfer him for a civilian trial in New York City.
Unlike the similar effort — now stalled — to try Khalid Sheikh Mohammed and four other 9/11 plotters in the same courthouse, Ghailani’s transfer caused nary a whimper. That was understandable. There was no military-commission system when the embassies were savaged. That is not a legal bar to trying pre-9/11 war crimes by commission; indeed, the Obama administration has consigned the bombers of the USS Cole to a commission trial, even though their attack occurred nearly a year before 9/11. There was, however, a second consideration in Ghailani’s case: The embassy bombings have already been the subject of a lengthy civilian trial, during which one terrorist pleaded guilty and four others were convicted. The Justice Department could plausibly argue that its case could be proved by relying, in the main, on evidence that has already been publicly disclosed. Thus, the classified-information-disclosure issues that beset post-9/11 prosecutions would not be as dicey.
Or would they? Ghailani fully intended to move them front and center. He made a pretrial motion to dismiss the case based on outrageous government misconduct. This claim, rooted in the oxymoronic doctrine of “substantive due process,” was drummed up by the Supreme Court in the 1952 case of Rochin v. California, in which police subjected a suspect to harrowing physical abuse, forcing him to emit the illegal narcotics that the state then used to prosecute him. The drastic remedy of dismissing an indictment is available only when there has been truly egregious misconduct that “shocks the conscience.” That amorphous standard is situational: Aggressive tactics that are shocking in some circumstances (like ordinary, peacetime law enforcement) may be justifiable in others (like wartime intelligence-gathering against mass murderers).
So, does the court’s rejection of Ghailani’s motion mean the judiciary has stamped its seal of approval on harsh interrogation? Not at all. In fact, the government declined to respond to the terrorist’s claims of abuse and took no position on whether, if true, those claims amount to a due-process violation. The court made no ruling on whether there had been torture.
The government instead contended that there was a critical element missing from Ghailani’s motion: causation. If the alleged torture didn’t have anything to do with the case — if the claimed abuse played no role in Ghailani’s being captured and brought into the court’s jurisdiction, if its fruits formed no part of the evidence against him — then, prosecutors argued, it is irrelevant for purposes of the criminal trial.
Carefully construing the precedents on this point, Judge Kaplan agreed. He stressed that the government had committed not to use anything Ghailani told the CIA against him. Thus, he reasoned, “any deprivation of liberty that Ghailani might suffer as a result of a conviction in this case would be entirely unconnected to the alleged due process violation. Even if Ghailani was mistreated while in CIA custody and even if that mistreatment violated the Due Process Clause, there would be no connection between such mistreatment and this prosecution.”