Advancing a Free Society

Marc Thiessen on “Holder’s Terror Trial Catastrophe”

Tuesday, October 12, 2010

I disagree with a great deal in this oped and don’t mean to pick every nit I could find in it. But it is worth answering some of Marc Thiessen’s major points, as they have a way of distilling and reinforcing the Right’s conventional wisdom.

“If President Obama needed a clarifying moment to help him decide whether to try Sept. 11 mastermind Khalid Sheikh Mohammed in civilian court, a federal judge’s decision last week to bar the testimony of a key witness in the trial of Ahmed Ghailani should have provided it.”

Well, no. An interlocutory order that is apparently not preventing the government from proceeding with its case will not and should not be the “clarifying moment” Thiessen describes. Whether KSM can be tried in New York is a function, among other things, of whether the government can muster enough admissible evidence against him to present in a trial. Judge Kaplan’s decision in the Ghailani case is a data point in that conversation–particularly if large quantities of the government’s evidence against KSM are derivative fruits of his interrogation. But the ruling isn’t much more than that.

Continue reading Benjamin Wittes at Lawfare