The Ghailani Verdict and the War on Terror

By John Yoo, The Wall Street Journal

The near-total acquittal of an al Qaeda agent by a New York jury this week should, at a minimum, be the last gasp for President Obama's misguided effort to wage the war on terrorism in the courtroom. But it should also spell the end for a broader law-enforcement approach that interferes with our effective prosecution of the conflict. The best course now is simply to detain al Qaeda members, exploit them for intelligence, and delay trials until the end of hostilities.

A federal jury on Wednesday convicted Ahmed Ghailani on only a single count of conspiracy for the massive 1998 car bombings of U.S. embassies in Kenya and Tanzania. But it acquitted him of the murders of the 224 people, including 12 Americans, who died in the attacks. After the trial judge excluded a key witness whose identity was learned through tough CIA interrogation, prosecutors were lucky even to win on the single charge of conspiring to destroy government property.

For nearly two years, the Obama administration has persisted in treating al Qaeda operatives as garden- variety suspects entitled to all the constitutional rights of Americans, rather than as enemy combatants intent on committing the war crime of killing innocent civilians. Ghailani's was supposed to be the easy case, a clean win, a demonstration that civilian courts could try 9/11 mastermind Khalid Sheikh Mohammed and other al Qaeda leaders still held at Guantanamo Bay.

But civilian trials risk our nation's most vital intelligence secrets. That's because the Constitution allows criminal defendants to demand that the government turn over all of its information on them and explain how it was acquired. In a common domestic trial, this does little damage since the harm has already been done. A trial only reconstructs the history of the events that led to the crime.

In the middle of a hot war, though, releasing intelligence can be disastrous, because it informs the enemy of our knowledge, capabilities and intentions. That's what happened when federal prosecutors tried the plotters of the 1993 World Trade Center bombing in civilian court. Al Qaeda learned which individuals the U.S. suspected of being in its organization, so it had an enormous intelligence advantage in planning future plots.

Worse yet, the imperatives of law enforcement distract soldiers and intelligence agents from their primary war-fighting mission. We don't want our soldiers pausing on hostile battlefields to read detainees Miranda warnings, take down witness statements, and collect evidence in plastic baggies. They should remain focused on finding and killing al Qaeda terrorists. The very point of war, as opposed to law enforcement, is to use force, guided by intelligence, to prevent the enemy from carrying out future attacks. Every second our forces spend gathering evidence for trial is time taken away from carrying out their mission, protecting their personnel, and returning safely.

Given this, many legal and policy analysts have suggested that the Obama administration abandon civilian trials for military commissions, where the rules of evidence, including about what must be disclosed to defendants, are less strict. Presidents and generals have used such commissions throughout American history to try enemy combatants for war crimes while better balancing national security with the demands of a fair trial. Nevertheless, in the midst of our current war, even military commissions put unnecessary strain on military and intelligence operations devoted to rooting out the enemy, not collecting courtroom evidence.

The Obama administration should drop the idea of trials altogether and simply continue to detain al Qaeda members until the war is over. Detention is not a problem to be wished away. Rather, it is a solution for more effectively collecting the intelligence that will win the war.

The customary laws of war have long recognized the right to hold enemy combatants until the end of hostilities. As Justice Sandra Day O'Connor wrote for the Supreme Court in the 2004 Hamdi case: "The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again." Punishment is not the goal of military detention. So the U.S. should keep Guantanamo Bay open and postpone any trials until it has won the war.

Yet administration officials suggested this week that the Ghailani verdict justifies the use of civilian courts. Yes, trials bear costs, they say, but the political benefits of treating terrorists as criminal suspects outweigh intelligence needs. The administration apparently has an irresistible impulse to sacrifice effective security policies in order to appease international and domestic elite opinion.

That's why, in January 2009, it announced the closing of Guantanamo Bay without any serious alternative. (The facility is still open, thanks to Congress.) The Obama administration also rushed to release al Qaeda operatives from Gitmo, until it discovered that a significant fraction returned to the fight. It also ended aggressive interrogation of terrorists, depriving our military and intelligence agencies of the most effective tool for learning al Qaeda's future plans of attack.

Winning the war matters far more for American power than the retribution of a jury verdict or the president's international popularity. U.S. victory in World War II -- and not President Truman's use of military courts in occupied Germany and Japan -- fostered America's postwar strength. Victory at Appomattox -- and not President Lincoln's use of military commissions to try Confederate spies -- established the Union's international status.

In our day, President Obama still has two years to return to a proper war-fighting strategy before the American people hold him accountable for more failures like Ghailani.