In deciding to resume military trials for alleged terrorists at Guantanamo Bay, Cuba, President Obama didn't make the right or wrong call; he made the only call.
Had Sept. 11 occurred on his watch, then he, like his predecessor, would have had a range of options, including military tribunals, a civilian criminal prosecution, or the choice of holding alleged terrorists indefinitely as enemy combatants.
But Obama did not have the luxury of a blank slate. George W. Bush did. For Obama, the options were limited by the circumstances he inherited, legally speaking.
Given the duration that prisoners have been held at Guantanamo, it would be virtually impossible to try them in a civilian court. For nearly a decade, their treatment has not been in keeping with the procedural protections afforded in a civilian criminal court. They were not Mirandized. They have obviously had no assurance of a speedy trial. Counsel has not been available to them every step of the way. While incarcerated, some have been subjected to duress. To remove them from that war-type processing and transfer them into a completely different system is akin to beginning their prosecution in one country under a unique set of rules and procedures, then concluding it in another.
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Consider the case of Ahmed Ghailani. He is the al-Qaida terrorist who was acquitted on 284 of 285 counts after being tried in a civilian federal court in New York. The lone conviction was for engaging in a terror conspiracy.
Ghailani was the first Guantanamo detainee to stand trial in civilian court, and as soon as that decision was made, he was afforded a full complement of constitutional protections. That meant the jury deciding his fate never got to hear some of the most damning evidence against the man charged in connection with the 1998 bombings of the U.S. embassies in Kenya and Tanzania, which killed 224 people.
Specifically, the government believed that Ghailani bought the truck and other materials used in the Tanzania attack. The key government witness was a Tanzanian who supposedly sold Ghailani the explosives. But because Ghailani revealed the seller's identity during alleged harsh interrogation sessions, this information was not admissible in the trial.
That's exactly the sort of thing that will happen if more who were processed in anticipation of a military tribunal are instead afforded constitutional rights in a civilian criminal trial. Had Ghailani been prosecuted in a military court, the judge would have had increased discretion to admit such evidence.
The civilian system was not designed for the al-Qaida-type defendants. It was designed to protect the individual rights of the person charged by the state, and to keep him from speaking in support of his own prosecution.
But the military has a different objective and so does its system. The military tribunals are geared toward preventing loss of lives in wartime conditions. And for a military-tribunal prosecution, there is greater latitude for evidence and sources.
Which is why the president made the only choice he had, even if it defied a campaign promise.
Contact Smerconish, a columnist for The Philadelphia Inquirer, at www.smerconish.com.