"The court has not reached this conclusion lightly," said U.S. District Judge Lewis A. Kaplan in Manhattan. "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. To do less would diminish us and undermine the foundation upon which we stand."
The Obama administration has made Ghailani its test case to prove that the civilian criminal-justice system works perfectly well in wartime against enemy combatants — to show that we don't need military commissions or other alternatives specially tailored to address the peculiarities of terrorism cases. The administration figured Ghailani was a safe bet. After all, the embassy-bombing case had already been successfully prosecuted once: In 2001, prior to 9/11, four jihadists were tried, convicted, and sentenced to life imprisonment (although the jury voted to spare the two death-penalty defendants).
Yet, to prove its political point that there is no downside in vesting Ghailani — a Tanzanian national whose only connection to the United States is his decision to make war on it — with all the constitutional rights of an American citizen, the Justice Department has had to slash its case. DOJ is also finding that even more critical evidence may be suppressed by the trial judge. In short, the slam dunk has become a horse race, one the government could actually lose.
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