Key Witness Excluded in Ghailani Prosecution

Ben points out that one can easily overstate the lessons to be learned from yesterday's life sentence for Faizal Shahzad, it terms of the debate concerning civilian prosecution/military prosecution/military detention.  Much the same no doubt can be said about today's decision excluding a key government witness from testifying in the Ghailani case. [UPDATE: for more on the underlying legal issue here, see Tung Yin's thoughts here] Recall that Ghailani is on trial in New York in connection with the 1998 East African embassy bombings, that he previously was held at GTMO and in CIA custody, and that the government hoped to use testimony from an individual whom they learned of by interrogating Ghailani coercively (the government assumed for the sake of argument that the interrogation was coercive, but argued that any resulting taint was sufficiently attenuated).  Judge Kaplan today concluded that the taint was not sufficiently attenuated, and that the witness must be excluded (full disclosure: I clerked for Judge Kaplan, and admire him immensely).  No doubt some will seek to use this to suggest that Ghailani should be prosecuted instead by a military commission.  But if you're inclined to think so, you must first consider whether the result would likely be any different in a commission proceeding.  It's far from obvious to me that it would be.   If the entire issue were transplanted to the Commission context, we would have a threshold question as to whether the constitutional considerations in play in the civilian trial setting would apply in the commission setting.  Very likely they would once the appellate dust settled (i.e., several years from now), if Boumediene is any guide.  And in any event, much the same result might alternatively be derived out of the commission's own statutory structure. As for the alternative of not prosecuting Ghailani at all, there remains the military detention option pursuant to which he has been held for some time.  On this point, note that Judge Kaplan's initial order memorializing his decision (the redacted opinion itself will follow later) expressly references the idea that Ghailani might be subject to continuing military custody even if acquitted at trial:

Moreover, it is appropriate to emphasize that ... his status as an "enemy combatant" probably would permit his detention as something akin to a prisoner ofwar until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case.

Judge Kaplan wrote this as part of an explanation as to why it is important not to give in to a temptation to tweak or weaken constitutional safeguards out of a desire to ensure incapacitation of a suspected terrorist.  That strikes me as a very nice illustration of a point that Jack and I have made previously about the dynamic relationship between the criminal justice and military detention systems: i.e., that there exists a balloon-squeezing dynamic pursuant to which restriction or expansion (or in this case, simply maintenance) of one system may have an effect on the other in terms of whether there will be pressure to make it more expansive.