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Setback for Guantanamo Prosecutions

Author: Matthew C. Waxman, Adjunct Senior Fellow for Law and Foreign Policy
October 7, 2010

The first civilian trial of a Guantanamo detainee hit a snag in New York on Wednesday when a judge ruled that prosecutors couldn't call a key witness because of information obtained during harsh interrogation. While the trial is only to be delayed a week, it's a setback for the Obama administration, which sees the trial of Ahmed Ghailani--accused of helping al-Qaeda carry out the 1998 U.S. embassy bombings in Africa--as important to its strategy for ultimately closing Guantanamo.

Although the Ghailani charges relate to events before September 11, 2001, his case is seen as part of a broader campaign to prosecute the 9/11 conspirators, including Khalid Sheikh Mohammed. The Obama administration has advocated federal prosecution of many Guantanamo detainees as a step toward closing that facility and as an important tool for incapacitating terrorists in the war against al-Qaeda.

This case sets several important precedents: Ghailani is the first Guantanamo detainee transferred to New York for prosecution; he alleges the CIA subjected him to abusive interrogation; and many issues in this case are likely to arise in any case against Khalid Sheikh Mohammed. Critics of closing Guantanamo or prosecuting al-Qaeda terrorists in federal court often argue the court system is ill-equipped to handle the challenges (including security concerns, protecting against disclosure of sensitive intelligence information, and not giving defendants a propaganda platform).

In fact, though, not only have many previous terrorism cases been successfully handled (the 1993 World Trade Center bombers, for example, as well as many recent ones), but the federal courts and prosecutors in New York City have more experience from these cases than anyone--civilian or military--in managing the challenges.

Proponents of civilian trials say that rulings like that in the Ghailani case show unrivaled fairness and legitimacy, while opponents claim the ruling shows civilian trials as inappropriate tools for this war (though it is not clear a military court would have ruled differently).

The Obama administration's efforts to close Guantanamo have been largely on hold until after the congressional midterm elections. Depending on the results, the White House is likely to find itself in an even tougher political position as it works with Congress on the future of U.S. detention policy. The Ghailani trial won't settle those debates one way or the other, but any problems that arise in this prosecution will make it more difficult for the Obama administration to fulfill its commitment to close Guantanamo.

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