The Judge Who Saved the Constitution

October 13, 2010 • Commentary
This article appeared on Cato​.org on October 13, 2010.

U.S. District Judge Lewis Kaplan — the judge in the first trial in a federal civilian court of Guantanamo Bay prisoner Ahmed Khalfan Ghailani (charged with grave acts of terrorism) — has shocked President Obama and his puppet attorney general, Eric Holder. On Oct. 6, in New York, Kaplan prohibited the vital testimony in the case of a prosecution witness, Hussein Abebe. Prosecutors had described him as “a giant witness.”

His reason: CIA interrogators of prisoner Ghailani learned of Abebe through coercive interrogation (what a sterile term for torture) of Ghailani.

I believe that Kaplan’s explanation for barring this witness will go down in our history as a ringing defense of our rule of law — at a time when we are in continual danger from widespread terrorist enemies, some of them living, covertly, right here in this country.

Another American president — not Obama — could well have given Kaplan the Liberty Medal for reminding us and the world of why he has delayed this trial by barring this prosecution witness:

“The Court has not reached this conclusion lightly. It is acutely aware of the perilous nature of the world in which we live. But 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.”

The Justice Department has charged Ahmed Ghailani with the bombing of the American Embassy in Tanzania and a nearly simultaneous bombing of our embassy in Kenya. These double attacks in 1998, for which he allegedly bought and supplied the explosives, killed more than 200 people, including 12 Americans.

Another U.S. president — again, certainly not Obama — could well have awarded Judge Kaplan the Liberty Medal for reinvigorating the Constitution during its increasing time of need under President Bush, and even more so under President Obama.

Ghailani, a Tanzanian, has been imprisoned for the past six years — the first two at a secret CIA “black site” prison, from which United States and international human rights investigators were barred — as were our laws and international treaties we have signed. Hussein Abebe, the proposed witness against Ghailani, was, the government asserts, the man who sold Ghailani the hundreds of pounds of explosives that were used in those horrendous bombings. According to a Sept. 3 New York Times report by Ben Weiser, Ghailani went to Abebe because the latter’s family had a mining business in Tanzania with access to explosives.

And Larry Neumeister of the Associated Press adds (Oct. 6), Kaplan said “Abebe was identified and located as a close and direct result of statements made by Ghailani” while learning how much (my words) agony he could withstand in a CIA “black site.”

As for whether Abebe, whom Ghailani was “persuaded” to name as the source of the murderous explosives, was forced by similar methods to testify against this defendant, Judge Kaplan says “it was not clear” whether Abebe “ ‘truly would be the volunteer the government claims’ or that ‘unlawfully obtained evidence did not play a role’ in securing his cooperation.” (New York Times, Sept. 2).

Such is the dark reputation of the CIA, which presidents Bush and Obama have encouraged to operate outside our laws and also outside “our values,” which both commanders in chief pledged to protect.

Thanks to Judge Lewis Kaplan, the Constitution has been enabled to trump the CIA as well as Bush and Obama — as summed up by Ghailani’s attorney, Peter Quijano, who exalts:

“It is the Constitution that won a great victory today. This case will be tried upon lawful evidence, not torture, not coercion.”

But even this defense attorney cannot free himself from political correctness. Why say “coercion,” as our presidents also do, when Quijano knows full well that the nakedly accurate word is?


It’s like when most of the press routinely describes highly active terrorists as “militants,” “extremists” or “insurgents.” Can’t they at least say “jihadists?” Politically correct and soft terms do not mask real bloodshed, death and atrocities committed by jihadists, or the torture at our “black sites.”

Attorney General Holder insists the trial will go on. The government will not appeal Kaplan’s ruling. It’s up to the government to replace their former major witness with clearly verifiable facts.

An always‐​cogent legal analyst of these issues is Glenn Greenwald, who would almost have to be tortured to use politically correct language. In “Opposition to the rule of law” (salon​.com, Oct. 7), he reminds us:

“This whole spectacle of bringing Ghailani to New York is quite like a show trial anyway by the Obama administration.” I must add, however, except for the history made by Judge Lewis Kaplan.

Writes Greenwald: “The Obama DOJ (Department of Justice) only deigned to allow Ghailani a trial because it was convinced it was guaranteed of a conviction; had it not been so convinced, they would have simply sent him to a military commission or held him without charges of any kind, as they’re doing to multiple other detainees against whom they don’t believe they can win in a real court.”

Now dig this about “American values.” Did you know, as Greenwald accurately writes, that “the administration has already asserted what it calls ‘post‐​acquittal detention power’: namely, the power to continue imprisoning anyone as an ‘enemy combatant’ under the law of war even if they charge that person with crimes and lose in court”?

If Ghailani is acquitted and kept behind bars, so much for our “rule of law.”

Next week: Why it is constitutionally necessary to bring charged terrorists to trial in our civilian courts — as Judge Kaplan has demonstrated that his American values are the essence of why we are Americans. I’d very much like to know what a possible future Republican president as of 2012 will have to say about his or her faithfulness to our rule of law by contrast with the con games of Guantanamo Bay‐​style military commissions and military tribunes. And let’s hear from the tea partiers on what Judge Kaplan has done for America.

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