The witness who was banned from testifying, Hussein Abebe, says he sold TNT to Mr. Ghailani that was later used to blow up the United States Embassy in Dar es Salaam, Tanzania.  The Judge agreed that the government learned of  Mr. Abebe through Mr. Ghailani’s interrogation when he was being held in an overseas jail run by the Central Intelligence Agency.

According to Ghailani’s attorney,  the terrorist underwent coercive interrogation and torture while in C.I.A. custody, and that any statements or evidence derived from them is tainted and inadmissible. The  prosecution said Mr. Abebe’s decision to cooperate was voluntary and only remotely linked to Mr. Ghailani’s interrogation. “This is a giant witness for the government,” a prosecutor, Michael Farbiarz, told the judge last week, adding, “There’s nothing bigger than him.”  Mr. Farbiarz cited Mr. Abebe’s testimony that Mr. Ghailani made repeated trips to buy “black-market explosives” from him, adding, “That’s done for not many reasons in this life.”

Judge  Lewis Kaplan announced his decision today, blocking the government from calling  their “Giant Witness”

“The court has not reached this conclusion lightly,” said U.S. District Judge Lewis A. Kaplan in Manhattan. “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 made Ghailani its test case to prove that the civilian criminal-justice system works perfectly well in wartime against enemy combatants — to show that we don’t need military commissions or other alternatives specially tailored to address the peculiarities of terrorism cases. The administration figured Ghailani was a safe bet. After all, the embassy-bombing case had already been successfully prosecuted once: In 2001, prior to 9/11, four jihadists were tried, convicted, and sentenced to life imprisonment (although the jury voted to spare the two death-penalty defendants).Yet, to prove its political point that there is no downside in vesting Ghailani — a Tanzanian national whose only connection to the United States is his decision to make war on it — with all the constitutional rights of an American citizen, the Justice Department has had to slash its case. DOJ is also finding that even more critical evidence may be suppressed by the trial judge. In short, the slam dunk has become a horse race, one the government could actually lose.

But Eric Holder’s plan to transfer Khalid Sheikh Mohammed from Guantánamo Bay to Manhattan for a civilian trial is perhaps liberals’ worst idea in years. KSM and his cohorts had agreed to plead guilty before a military tribunal, accept a sentence of death, and speedily rendezvous with their 72 ladies-in-waiting.

This offer of an efficient way out for the administration was not good enough for Attorney General Eric Holder. He insists on trying the terrorists before a civilian jury in federal court, just a few hundred yards from Ground Zero. Next to martyrdom and a free trip to paradise, this has to be the terrorists’ wildest dream.

No turbaned genie ever appeared out of Aladdin’s lamp to grant three greater wishes than these. KSM to Genie: One, I want to exploit my status as mass-murdering terrorist; Two, I want to inflict even greater pain and suffering on the families of those thousands whom I’ve murdered; Three, I want to make my trial a magnet for my brother jihadists throughout the world.

Of course, it’s always possible that this whole transfer could go without incident. But why in the world would anyone take such an utterly reckless risk, going from swift and sure justice on a military base in a foreign country, to an unpredictable gamble on our own shores, surrounded by civilians in our largest city?

Eric Holder’s decision to try the terrorists in Manhattan may not be simply the worst decision of this administration, it bids fair to stand with Dred Scott and Roe v. Wade as being among the worst decisions in American history.

Congress has the power to prevent this farce from going forward. Congress must spare us this travesty. Phyllis Schlafly has reminded us—serious student of the Constitution that that she is—that Congress has the power to restrict the appellate jurisdiction of the federal judiciary. Very true. But Congress has a power that would provide even more immediate relief: That power is the power of the purse.

We need to move quickly to deny Mr. Holder’s Justice Department any federal funds to transfer or try any of the Guantánamo detainees apart from military tribunals. President Obama is on record as approving those military tribunals. As a senator in 2006, he even voted for the measure that established those tribunals. Of course, he is now on record backing up his besieged attorney general.

We would actually be doing Mr. Obama a favor by having Congress override his hasty and reckless attorney general. I think the president would secretly heave a sigh of relief if Congress would prevent this gross error from going forward.

It’s vitally important that the people’s representatives speak on this point. It’s why we have checks and balances.

It’s ironic. The president—as commander-in-chief of the military—would have enormous discretion to handle this situation as he saw fit if the Defense Department retained custody of these terrorists. But by transferring them to the Justice Department, this becomes a domestic issue outside President Obama’s commander-in-chief power, giving Congress the upper hand in deciding how to proceed.

We should have a good chance of prevailing on a cutoff of federal funds for civilian trials of terrorists. How many members of Congress would relish the prospect of having to explain on the campaign trail next year why they voted to spend a minimum of $75 million a year on security for the New York show trials? Voters will especially object when they realize that Guantánamo Bay was built with taxpayer funds for precisely such trials. We’d have good prospects of winning on such a proposition. But even if we don’t carry this amendment, we would certainly have a vote that would be of intense interest to American voters as they approach the 2010 elections next fall

The ins and outs of the health care debate, cap-and-trade, and the stimulus require voters to pay the strictest attention as lawmakers wade through numerous 2,000+-page legislative behemoths. But an up-or-down vote on Holder’s Manhattan Transfer has a marvelous clarity. Let’s get clear.

It appears that Obama’s GITMO team is being systematically eliminated. One has to ask, why? The only real answer has to be that Obama is setting up some plausible deniability by firing or forcing the resignation of officials involved with GITMO policy. Once enough of these people are gone, Obama can look wide-eyed to the public and claim that he was badly served by his GITMO advisers and, therefore, it isn’t his fault.

Unfortunately for Obama the failure is not with the staff but with the chief himself, Obama.

Obama has allowed Attny Gen. Holder to reveal his utter ignorance by pushing for civilian trials of some GITMO detainees while at the same time arbitrarily denying such a privilege to others. Obama has also backed this plan despite that there is no precedent in American history for such trials.

And now the officials in charge of these decisions are being let go with no replacements announced, leaving mounting questions about just what the administrations policies are and who is responsible for carrying them out.

With Carter so unexpectedly gone, many questions remain unanswered about Obama’s detainee policy. Now, there is no one to answer these questions. By what legal authority does the administration hold some 75 detainees without civilian trials? On the other hand, what is the legal authority that some are getting civilian trials? How will these detainees that are getting civilian trials be secured and where?

In any case, it seems pretty obvious that Obama is getting rid of as many people on his GITMO policy team as possible so that he can claim that his failures are not his fault but are the failures of the departing team members. But will the American people buy this deception?

According to the American Historian Will Durant, “Animals claw each other to death, men consume each other by due process of law.”  And with that sentiment in mind, it is easy to see why the Obama Administration has made one of the worst foreign policy decisions in American history.

Of course, I am talking about the decision to try terrorists for “crimes” in New York City in a criminal court using the laws of our land.  Let us count the ways this decision is beyond negligent; it is a gross dereliction of duty:

1.  An Unprecedented Act Providing A Terrible Precedent.  Throughout our history, we have treated enemy combatants as those committing an act of war.  That is so because (a) they are not US citizens, and (b) their acts were acts of war.  In other words, they were not criminal acts of a US citizen committed during peace time.  Now however, Obama has allowed at least one enemy combatant to be tried in a US criminal court subject to the constitutional laws of our country.

Here is what logically can flow from that legal precedent, keeping in mind that the first right granted is never the last:

a)      Other enemy combatants will claim that they are not being treated “separately but fairly,” that they too have a right to due process, and so they will claim that they have a right to tried in a US criminal court as well – effectively ending military tribunals; and

b)      Thereafter, enemy combatants will not only make use of our appeal process, they will also claim that they have a right to sue in our civil courts for any claimed “civil rights” injustices as a result of the process by which they were captured, detained and/or questioned – regardless of any existing laws to the contrary which they will claim are  – you guessed it  – unconstitutional;  and

c)      Non enemy combatants will seek access to the US system claiming that their lesser “criminal” conduct is no less protected, i.e. illegal aliens and on and on; all of which means that

d)      Non citizens will eventually claim full constitutional rights – including rights to government programs – in other words the loss of our legal borders.

If you think that is an exaggeration, consider how far the US has come –  at one time allowing for interment during World War II of US citizens (essentially taking away existing rights of people) to today granting foreign terrorists Constitutional protections (to which they never should be allowed to have).  The latter would have been unheard of in the 1940’s.  Now it is a reality.  Those are far bolder steps than the steps that I have suggested above.

2.  War Decisions Will Be Hampered by Due Process of Law Issues.   Once you move from a military tribunal to a criminal court, issues of admissibility of evidence change dramatically.  Given that these events happen on a battle field, are we expecting our soldiers to collect evidence?  To read terrorists Miranda rights?  Are we to call in CSI?  Of course, that seems laughable given the dangers of the battle field, but as a lawyer, I can tell you that those issues will come up.  Of course the solution to that for the military will be not to take prisoners but instead to simply shoot on sight – a decision that would lead to lawsuits as well.  All of which will lead to the worst result of all.

3.  Unilateral Disarming.    Of course, Osama bin Laden, living in a cave, has no use for due process.  He views such niceties as a weakness in his war.  At no point will terrorists modify their behavior in response to separate but equal treatment – after all, someone willing to murder civilians by thousands does not specialize in equity.   The US, on the other hand, has by its own hand weakened its ability to fight wars – it will have unilaterally allowed others to consume at least part of us by due process of law.

Of course, that may well be part of the Left’s strategy.  So too tearing down the barriers between citizens and non-citizens – making terrorists citizens of the world.  How long is the process from that decision to Obama then deciding that our Constitutional review of these terrorists must be judged by international standards?

After all, if he has disarmed us of our ability to fight, why not disarm us of our constitution or as they refer to it – Internationalism?

Taking all of that into consideration, incredibly, Obama admits that he didn’t sign off on the decision.  Now that is the only crime I can see in this scenario.