So much for that Art. I clause . . .

Today’s Washington Post reports that the Bush administration has decided to charge Ahmed Khalfan Ghailani with before a military commission at Guantanamo Bay for acts committed before Sept. 11 – to wit, his alleged participation in the bombing of the U.S. Embassy in Tanzania.  According to the Defense Department , Ghailani will be charged with conspiracy, murder, attacking civilians, destruction of property in violation of the Law of War, terrorism, and material support to terrorism, among other charges.  The Post reports:

Ahmed Khalfan Ghailani, who was held in secret CIA custody for more than two years before arriving at Guantanamo Bay in late 2006, was accused of plotting and carrying out the embassy bombing as part of his work for al-Qaeda and Osama bin Laden . The attack, on Aug. 7, 1998, killed at least 11 people and injured nearly 100 more.

Ghailani was also accused of later going to al-Qaeda training camps in Afghanistan , working as a bodyguard for bin Laden and forging documents for other terrorist conspiracies. At one time, he was on the FBI ‘s 25 Most Wanted list and had a $5 million bounty on his head. He was arrested in a raid on his home in Pakistan in July 2004.

Almost all of his alleged “war crimes” occurred before the Sept. 11 attacks, and most predated the nation’s fight against terrorism. Four co-conspirators in the Tanzania bombing were convicted in U.S. federal courts. Ghailani, too, was indicted in the United States, but federal authorities have opted to try him before the commission, composed entirely of military officers.

I’ll be very interested to see how the Bush administration’s lawyers argue their way around the provision of Article I that reads “No Bill of Attainder or ex post facto Law shall be passed”.  Setting aside the myriad objections to the military commissions generally, and this case specifically, I think this is going to present a major hurdle for the government. 

I’m also concerned about the deliberate decision to take this case away from federal prosecutors (who have already scored four convictions – that’s four more than Team Gitmo, in case you’ve lost count) in favor of the military tribunals at Guantanamo Bay.  In my opinion, our default choice for the prosecution of suspected terrorists should be federal court.  The Moussaoui prosecution was an anomaly; many, many terrorism prosecutions have gone forward through trial and convictions, including United States vs. Bin Laden (in absentia).  The substantive and procedural due process granted by federal courts has strategic value – it confers legitimacy on the outcome.  That legitimacy matters for the struggle against terrorism, and I think it’s crucial that evaluate our prosecutorial decisions with that strategic calculus in mind.