The government received a crushing blow today in its efforts to try suspected terrorists in federal civilian courts. The star witness in the first case of a Guantanamo Bay detainee to be tried in a U.S. civilian court was barred from testifying, because the government found the witness by allegedly torturing the defendant. Now the government could lose their case against this defendant, a man accused of being a terrorist involved in embassy bombings that killed over 200 people, and he may eventually be set free.

The trial against Ahmed Ghailani was to begin this week in federal district court in the Southern District of New York. Ghailani is charged with conspiring in the 1998 bombings of the American embassies in Kenya and Tanzania that killed 224 people. This was an Al Qaeda attack. The witness, Hussein Abebe, a Tanzanian miner, was to testify that he sold five crates of dynamite to Ghailani.

This witness was not an inconsequential witness by far and the government could now lose the case. Prosecutors even went so far as to say that Abebe is a “giant witness for the government.” Michael Farbiarz, a prosecutor on the case, said last week in court that without being able to use this witness to explain that he sold TNT to the defendant, “the government has no way of putting such evidence in front of the jury at all.” It was also pointed out by the prosecutor that this witness’ testimony would be used by the government to defend against any claims that the defendant did not realize he was part of a bombing plot. The prosecutor also explained that Abebe is the only person who could give a first- hand account of Ghailani’s role in the attacks.

The judge, as distasteful as the ruling is, did the right thing. Law has to be applied uniformly, and cannot be applied differently to one type of defendant than to another, unless that is specifically provided for, which is not the case here. Since the prosecutors learned of the star witness in this case through coercive tactics used by the CIA while the defendant was in their custody, and the government cannot show they would have learned of Abebe without such coercion, they cannot call him as a witness. Any “fruit of the poisonous tree” cannot be used by the government, and this witness’ existence was apparently learned only by use of coercive tactics.

In federal civilian court, the government is not able to prove the coercive tactics may not have reached the level of torture. Even if the defendant was not tortured they cannot bring out the information to show that, since it would involve laying out CIA interrogation methods to the enemy. In this case the prosecutors chose not to put forth any evidence relating to the interrogation. This may be because the coercive tactics used went too far, but it could also be because they did not want to reveal CIA methods.

This case illustrates the problem with having terrorists tried in civilian courts. Ghailani is a terrorist who is charged with helping to kill over 200 people. He is an enemy combatant who was picked up in Pakistan. He was not entitled to a trial in federal civilian courts or constitutional protections. Cases like his belong in military tribunals. In a military tribunal Abebe could have testified and any confessions by the defendant could be used.

“The court has not reached this conclusion lightly,” Judge Lewis Kaplan explained. “It is acutely aware of the perilous nature of the world in which we live. 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 said it wants the world to see the American judicial process at work. However, seeing the government loose trials against suspected terrorists who have helped to kill hundreds of people is not going to get us any respect anywhere. The judge, apparently recognizing already that the government may not be able to attain a conviction now in this case, said that the defendant’s status as an “ ‘enemy combatant’ probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end, even if he were found not guilty.” Is that what we have to rely on as Americans? The Obama Administration has to wake up and realize that if he is found not guilty, then is held indefinitely despite being acquitted, this will make America look weak and foolish on the world stage. We are at war, and need to act accordingly when we handle those who attack Americans and our interests.

This case is a warning to the Administration. The same problems that are faced here apply in cases of others held in Gitmo such as Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks. Those prosecutions need to take place in military tribunals, where they belong.

Annemarie McAvoy is a former federal prosecutor. She currently is a consultant and teaches Counter-Terrorism, Anti-Money Laundering and Terrorist Financing at Fordham Law School in New York City.

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