Poison Fruit

About a year ago, President Obama and his Attorney General, Eric Holder, argued and then insisted that known terrorists be tried in civilian courts using criminal law. Exhibiting a level of naïveté that was astounding, they argued that we would somehow impress the Islamic world with our efforts to provide mass-murdering thugs with the whole array of constitutional and judicial protections afforded to our citizens—even as the terrorists themselves worked to kill our citizens in large numbers.

But effecting a moral preening stance that has become the Obama administration’s trademark, the President and his AG plodded onward. Holder suggested repeatedly that he would easily gain convictions while the President smiled and nodded in the background, convinced that his strategy would create new friends and neuter our enemies.

Yesterday, we say the first results of this approach. The New York Daily News comments:

The disastrous folly of trying Al Qaeda enemy combatants in civilian court stands proven beyond a reasonable doubt in the case of the first Guantanamo detainee brought to New York to face justice.

There is abundantly conclusive proof that Ahmed Khalfan Ghailani participated in the 1998 U.S. embassy bombings in Kenya and Tanzania that killed 224 people, including 12 Americans. At least 5,000 were wounded.

He was indicted that same year while a fugitive. In 2004, the CIA caught up with Ghailani in Pakistan. By then, he had gone on to train with Al Qaeda in Afghanistan, serve as Osama Bin Laden's bodyguard and meet some of the 9/11 hijackers.

These facts come courtesy of Ghailani's own mouth. He revealed them under interrogation while in clandestine CIA custody before transfer to Guantanamo. Therein lies the legal absurdity.

But since Ghailani's confession was achieved using extreme measures (which some in the media and political elite have now defined upward to be “torture”), the government couldn’t and did not introduce it into evidence in the criminal trial. That’s not the problem. Again, from The Daily News:

So, years later, come time for opening statements in Kaplan's courtroom, prosecutors chose not even to try entering a word of Ghailani's testimony into evidence. Instead, they hung their case largely on one Hussein Abebe, a Tanzanian who was prepared to testify that he had sold five crates of explosives to Ghailani.

Bad move. [Judge] Kaplan yesterday barred Abebe from taking the stand because the FBI tracked him down based solely on information provided by Ghailani under "coerced" questioning.

This ruling was distressingly inevitable.

The judge used the longstanding legal doctrine of disallowing evidence culled from illegal police activities—"the fruit of the poisoned tree” in legal jargon.

It’s difficult to determine whether Holder et al will gain a conviction in this case, but rest assured that defense attornies will use the "poison fruit" argument in every terrorist trial.

But no matter, in the midst of derisive laughter at a system that allows known mass murderers to walk on legal technicalities (that were never meant to be applied for terror crimes), I’m certain that the outliers in the Muslim world will be duly impressed and decide to make nice. After all, President Obama believes it, so it must be so.