A solution for the troubled prosecution of Guantanamo detainee Ahmed Khalfan Ghailani.

A solution for the troubled prosecution of Guantanamo detainee Ahmed Khalfan Ghailani.

A solution for the troubled prosecution of Guantanamo detainee Ahmed Khalfan Ghailani.

The law, lawyers, and the court.
Oct. 7 2010 1:25 PM

Catch and Release

American prisoners solve the troubled prosecution of Guantanamo detainee Ahmed Khalfan Ghailani.

Ahmed Khalfan Ghailani. Click image to expand.
Ahmed Khalfan Ghailani

With the first civilian trial of a Guantanamo detainee on hold as of Wednesday, the joke is on us—well, on Attorney General Eric Holder. The trial of Ahmed Khalfan Ghailani may actually be derailed entirely, because his lawyers have convinced a federal trial judge to bar the testimony of the guy who sold Ghailani the explosives he allegedly used in blowing up two U.S. embassies in Africa in 1998. These attacks killed 224 people, including dozens of Americans.

The judge was convinced that the prosecution's case against Ghailani was based in large part on statements coerced from him while he was in CIA custody. He concluded that Ghailani gave up the name of his star witness supplier because of "enhanced interrogation"—a no-no in civilian courts.

Surely such fine points are covered in Evidence or Criminal Procedure at Columbia Law School, Holder's alma mater.Why wasn't this likely turning point central to his thinking when he decided that Ghailani and Sept. 11 mastermind Khalid Sheikh Mohammed should be tried in civilian courts, where exclusionary rules could preclude the introduction of condemning evidence and testimony?

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Now Ghailani's lawyers may reassert their client's right to Sixth Amendment safeguards—for example, the right to a speedy trial, since this one is taking place 12 years after the bombings. Assuming that the trial does go forward, with at least one crucial prosecution witness barred from testifying, there is at least a chance that at least one juror may not be persuaded that Ghailani is guilty "beyond a reasonable doubt." Then what?

Presumably the Defense Department and the Department of Homeland Security have a backup strategy. But just in case, some students of mine have a solution that could conceivably advance efforts to locate and combat terrorist activities. One student ventured this idea: "Release them, and track them. If they

really are terrorists, they'll join up with other terrorists and you've got proof of their intentions. And you've got a target for one of those smart rockets. If they're innocent or rehabilitated, then the U.S. government gets away with not paying reparations for wrongful imprisonment. And the government saves the money it would have had to cough up to pay for a trial and security, and more appeals."

However farfetched, the proposal has some logistical, military, public-relations, and cost-saving merits. And it comes from a class that has experienced detention and incarceration, at Webster Correctional Institution in Connecticut, where I taught political science and public speaking courses as part of a community college outreach program until the prison closed this year.

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Almost all of my inmate-students (36 out of 41) were in favor of the president's January 2009 executive order promising to close the detention center at Guantanamo, which I gave them to read. In discussing it, they came up with the idea of releasing the Guantamano detainees, and embroidered on the idea of tracking them, with a James Bond secret implanted homing device. Several imagined that prior to release, a detainee could be anesthetized and wheeled into a top-secret operating room, where surgeons would implant microscopic sensors into the detainee's body, making tiny incisions that would heal and disappear by the time the detainee regained consciousness.

Maybe my students are extrapolating from the sci-fi and secret-agent flicks that make their way onto the TV channels received in the prison. Still, their plan would get us past much of the ideological gnashing of teeth that fills the airwaves and blogosphere. It escapes the cerebral clutches of scholars who, numbingly, go on about legal precedents for a situation that has no precise precedent, who strain for analogies to circumstances that defy easily comprehended analogy. It would spare us continued hand-ringing about whether the rights and safeguards provided by the U.S. Constitution should apply to Guantanamo detainees or other presumed enemy combatants (wherever and however held).

 And after all, big-box retailers use Radio Frequency Identification to track product inventory, and medical technologists are devising RFID implants that may allow doctors to monitor patients' vital signs from a distance. Couldn't we imagine RFID implants that allow the Departments of Defense and Homeland Security and the CIA folks to listen in on—and record—conversations a former detainee might have with those inclined to do us harm?

I suppose we'd have to ask whether such data-capture would run afoul of constitutional principles regarding unreasonable search-and-seizure and self-incrimination. But in my class, the inmates were quite keen on the potential of such technology. One said, "I'd take an implant if it got me parole sooner. You want to watch what I be doing and hear what I be saying, go on and do it. Just let me go home. If I screw up, they'll find me pretty quick. But I'd make that deal." Maybe Ghailani would too.

Joseph H. Cooper was editorial counsel at The New Yorker from 1976 to 1996. In addition to his work at the prison, he teaches ethics and media law courses at Quinnipiac University.