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Indeed, the Times does not even pause to consider the obvious questions raised by the trial. What if Shahzad had spurned cooperation? Or what if his confession had been deemed inadmissible, jeopardizing the case against him? That is not a merely academic question. As McCarthy points out, the trial of al-Qaeda operative Ahmed Ghailani may run aground on just such a legal technicality. Although Ghailani has confessed to the 1998 bombing of the U.S. embassy in Tanzania, and although there is an important witness in the case, his trial has been postponed and his conviction is no longer assured. It is, as McCarthy notes, a prime example of the United States “intentionally tying our hands behind our backs and running an unnecessarily high risk of acquittal in a case involving a war criminal.”
Overwhelmingly, the American public shares that assessment of the risk. Polls show that solid majorities favor trying terrorists in the military commissions system rather than in civilian courts. Even the Obama administration, despite its occasional grandstanding on behalf of civilian trials, has recognized the merits of the military commissions system enough to keep it in place. And while the successful prosecution of Faisal Shahzad is to be applauded, using civilian courts to deliver justice remains a dangerous gamble. If the Shahzad case reinforces any lesson, it is that no one serious about protecting the country in wartime would choose to rely on the good faith of jihadists to guarantee national security.
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