In a November 22 Washington Post op-ed, Marc Thiessen attacked the Obama administration over the verdict in the trial of terrorism suspect Ahmed Ghailani and argued that Ghailani should have been tried in a military commission because testimony not allowed in a civilian court would have been permitted by a military commission.
However, as Media Matters has noted, numerous legal experts -- including the federal judge presiding over Ghailani's case -- have argued that a military commission would have also likely excluded this testimony.
From Thiessen's op-ed:
And then there was the trial's coup de grace, when Judge Lewis Kaplan ruled that the government's star witness - the man who delivered five crates of TNT to Ghailani - could not testify because he was first identified by Ghailani during coercive CIA questioning.
Kaplan ruled that this made his testimony the "fruit of the poisonous tree." But in a military commission - under the rules put in place by the Bush administration and approved by Congress in 2006 - there was no "fruit of the poisonous tree" rule. Any statements Ghailani made through coercive interrogations could not have been used against him. But indirect evidence and the testimony of witnesses that trace back to those statements would have been permitted. And as I pointed out in an October column, even under the Obama administration's revised military commission rules, evidence obtained through involuntary statements can be admitted if the government can show that it would have discovered the evidence anyway, or if the court finds the "interests of justice" favor it.