The Islamic terrorist, Faisal Shahzad, who unsuccessfully sought on May 1, 2010 to blow up a car in Times Square was sentenced to life in prison without parole by a federal district court on October 5, 2010. He pled guilty so there was no trial. At sentencing, he said to the Federal District Court Judge, Miriam Goldman Cedarbaum, according to The New York Times, “Brace yourselves, because the war with Muslims has just begun,” adding, “Consider me only a first droplet of the flood that will follow me.”
The Judge asked, “Didn’t you swear allegiance to this country when you became an American citizen?” His response was, “I did swear, but I did not mean it.” He concluded his remarks with “Blessed be” Osama bin Laden, “who will be known as no less than Saladin of the 21st century crusade, and blessed be those who give him asylum.”
In this case, our justice system worked.
In another, more horrendous terrorist case where the bombs actually went off, justice is not prevailing. On October 7, 2010, when Judge Lewis A. Kaplanof the Federal District Court in the Southern District (Manhattan), according to The Times, “barred prosecutors on Wednesday from using a critical witness in the first civilian trial of a former Guantanamo terrorism detainee, the ruling – widely perceived as a major setback for the government – contained an unusual observation.”
The unusual comment by the court was, “even if the defendant, Ahmed Khalfan Ghailani, is acquitted, his status as an enemy combatant will probably allow his return to military custody, to remain locked up.” Why, opined observers, did the judge offer that opinion? One observer quoted in The Times of October 8th, with whom I agree, said that “the judge seemed to want to reassure people who might worry that strictly adhering to constitutional principles, as the judge did in barring the prosecution witness’s testimony, could lead to a terrorism suspect’s walking free.”
The Times described the charges against the defendant, stating, “Mr. Ghailani faces a trial on charges that he conspired in the 1998 bombings of two United States Embassies in East Africa, which killed 224 people and wounded thousands. After those attacks, the authorities say, he trained with Al Qaeda, and later became a bodyguard to Osama bin Laden. (Mr. Ghailani does not face charges for those activities in the federal case.)”
The Times also reported, “It was while in C.I.A. custody that he disclosed the existence of the witness, who prosecutors say sold him the TNT used to blow up the American Embassy in Tanzania.” The trial court decided the defendant was coerced.
A Daily News editorial of October 7th stated, “Kaplan yesterday barred Abebe from taking the stand because the FBI tracked him down based solely on information provided by Ghailani under ‘coerced’ questioning.”
To allow a mass murderer to go free under these circumstances is intolerable. The federal government should consider bringing an appeal to determine whether, under the circumstances of this case, the alleged coercion was such as to require the barring of the witness’ testimony. The U.S. Supreme Court may carve out an exception, as it has in several Miranda rulings. Alternatively, the federal government should explore removing the case to a military tribunal where the rules are different, and the court may permit the witness to testify.
Instead, according to The Times of October 11, “The government said on Sunday that it would not appeal a ruling by a federal judge last week that barred prosecutors from using a key witness in the first civilian trial of a former detainee at Guantanamo Bay, Cuba. The office of the United States attorney in Manhattan, Preet Bharara, said in a letter to the judge that it ‘respectfully disagrees with the court’s decision and believes that, under different circumstances, it would merit review by the Court of Appeals.’” The government had earlier said to the court, “Without Mr. Abebe’s testimony, prosecutors had told the judge, they had ‘no way of putting such evidence in front of the jury at all.’”
The reason given by the government for not appealing the ruling barring the testimony was that the delay in the trial “could have greatly inconvenienced many foreign witnesses,” and that “Some might even be unwilling or unable to return, again, for a later trial.” What good will the foreign witnesses’ testimony be, if the key testimony has already been ruled inadmissible, leaving the government without a case? Further, you can be sure every terrorist will claim he was tortured. If there is to be an exception made, surely this is the best case to secure it. The government should rethink its position and take the appeal. This case is beginning to resemble “Alice In Wonderland,” becoming curiouser and curiouser.
Remember what the Times Square bomber said last week: “The war with Muslims has just begun.” He didn’t even count the blowing up of the World Trade Center and its nearly 3,000 dead, nor the dead and wounded resulting from the bombings in East Africa, resulting, said the Daily News editorial in the “kill[ing] of 224 people, including 12 Americans. At least 5,000 were injured.” Nor did he count the passage of ten years during which Islamic terrorists have engaged in killing and injuring innocents throughout the world.
Al Qaeda declared war on the U.S. and Western civilization on 9/11/2001. As evidenced by the federal court’s ruling in the Ghailani case, we are not adequately prepared to fight the terrorists, some of whom are now citizens of the U.S., and we need to change the rules so that we can properly deal with Islamic terrorism that threatens Western civilization.
The Honorable Edward Irving Koch served New York City as its 105th Mayor from 1978 to 1989. His e-mail address is: eikoch@bryancave.com
