Obama's show trials: why prosecute a terrorism suspect if life imprisonment is the only possible outcome?

• Author: Sullum, Jacob
• Position: Columns - Barack Obama

IN OCTOBER a federal judge threw out a key witness against Ahmed Khalfan Ghailani, the former Guantanamo inmate who is accused of participating in the 1998 bombings of the U.S. embassies in Kenya and Tanzania. The witness, who was identified through Ghailani's coerced statements, was supposed to testify that he sold the defendant the TNT used to blow up the embassy in Tanzania. But U.S. District Judge Lewis A. Kaplan concluded that the testimony was too closely tied to information the CIA had obtained from Ghailani while holding him at a secret prison where he says he was tortured.

Conservatives who think terrorism suspects should never receive civilian trials said the exclusion of this testimony showed they were right. So did civil libertarians who argue that the federal courts are perfectly capable of handling terrorism cases. But whether or not the system is working, Kaplan's ruling suggested it is ultimately irrelevant.

"It is appropriate to emphasize," Kaplan wrote, "that Ghailani remains subject to trial on the pending indictment, that he faces the possibility of life imprisonment if convicted, and that his status as an 'enemy combatant' probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case." Barring a formal surrender by Al Qaeda, these "hostilities" will continue indefinitely, so detention for their duration amounts to a life sentence--the same punishment Ghailani is apt to receive if he is found guilty.

If Ghailani is convicted, in other words, he will be imprisoned for life, and the same thing will happen if he is acquitted. Even with the benefit of the Fifth Amendment's ban on coerced self-incrimination and the exclusionary rule, Ghailani has zero chance of regaining his freedom. So what exactly is the point of the trial?

In a New York Times op-ed piece published after Kaplan's ruling, Harvard law professor Jack Goldsmith, an assistant attorney general during the Bush administration, noted that "trials are perceived to be more legitimate than detention." But Goldsmith, who favors military detention of suspected terrorists, added that "a conviction...