Openings in Guantanamo detainee’s trial might be delayed after judge strikes key gov’t witness

By Larry Neumeister, AP
Wednesday, October 6, 2010

Judge bans key witness from detainee’s NY trial

NEW YORK — A judge barred prosecutors Wednesday from calling their most important witness at the first civilian trial of a Guantanamo Bay detainee, delaying the trial and delivering a setback to the government’s effort to build criminal cases with evidence gleaned from harsh CIA interrogations.

U.S. District Judge Lewis A. Kaplan’s three-page order was passed out in a highly secure courtroom just as Ahmed Khalfan Ghailani’s terrorism trial was set to resume. Kaplan delayed jury selection in the trial until next Tuesday at the request of prosecutors, who were deciding whether to appeal.

“The court has not reached this conclusion lightly,” Kaplan wrote. “It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not when it is convenient, but when fear and danger beckon in a different direction.”

Ghailani, accused by the government of being a bomb-maker, document forger and aide to Osama bin Laden, has pleaded not guilty to charges that he conspired in the Aug. 7, 1998, bombing of two U.S. embassies in Africa. The attacks killed 224 people, including a dozen Americans.

Ghailani’s lawyers had challenged government plans to call Hussein Abebe as a witness, saying he was discovered only after Ghailani was subjected to harsh interrogation methods at a secret overseas CIA-run camp after his 2004 arrest. Ghailani was transferred to Guantanamo in 2006 and was brought to New York for trial last year.

Prosecutors had repeatedly called Abebe’s testimony vital to their case, saying he was their most important witness because he would tell the jury how he came to sell explosives to Ghailani prior to the bombings.

Defense lawyer Peter E. Quijano praised Kaplan’s ruling outside the courthouse.

“It is the Constitution that won a great victory today,” Quijano said. “This case will be tried upon lawful evidence, not torture, not coercion.”

Attorney General Eric Holder said at a Washington news conference that he was confident the Justice Department can successfully prosecute a Guantanamo Bay detainee in civilian court despite the ruling. He said the government intends to proceed with the Ghailani trial and is reviewing the judge’s ruling.

The attorney general says there have been over 300 successful prosecutions in civilian courts in terrorism cases.

Human Rights First’s Daphne Eviatar, who was in court and is monitoring the trial for the organization, said afterward that Kaplan’s ruling recognizing that “evidence derived through torture is inadmissible only strengthens the view that civilian federal courts, not military commissions, can best handle difficult terrorism cases.”

After ruling, the judge sent a pool of 66 jurors home until next week, but not before warning them against hearing anything about the case from news reports or discussing it with anyone. The delay was intended to give prosecutors time to appeal should they decide to do so once they read the court’s findings of fact and conclusions of law.

Ghailani was smiling and conversing with his lawyers at the defense table after the judge ruled.

The defense had asked the judge to exclude Abebe’s testimony on the grounds that it would be the product of statements made by Ghailani to the CIA under duress.

On that point, Kaplan said, “Abebe was identified and located as a close and direct result of statements made by Ghailani while he was held by the CIA. The government has elected not to litigate the details of Ghailani’s treatment while in CIA custody. It has sought to make this unnecessary by asking the court to assume in deciding this motion that everything Ghailani said while in CIA custody was coerced.”

The judge issued the ruling after a hearing three weeks ago in which Abebe testified about his dealings with authorities and Ghailani. At the hearing, Abebe said he was questioned for three days by Tanzananian authorities and for two days by the FBI in 2006. He said he was eager to testify against Ghailani because he had not known the explosives he sold Ghailani would be used to kill people.

Kaplan repeatedly questioned Abebe and seemed unimpressed with some of Abebe’s answers. At the end of the hearing, he dared prosecutors to withdraw Abebe as a witness, saying: “Sometimes the desirability of witnesses is re-examined in light of testimony in preliminary proceedings.”

In his ruling Wednesday, Kaplan wrote: “The government has failed to prove that Abebe’s testimony is sufficiently attenuated from Ghailani’s coerced statements to permit its receipt in evidence,” Kaplan wrote.

The judge noted that he had previously rejected defense motions to dismiss the indictment on the grounds that Ghailani was deprived of a speedy trial and that his treatment by the CIA was so outrageous as to require termination of the charges.

Kaplan said Ghailani remains subject to trial, that he faces the possibility of life imprisonment if convicted and that — even if he were exonerated — his status as an enemy combatant probably would permit his detention as “something akin to a prisoner of war” until hostilities between the U.S. and al-Qaida and the Taliban end.

Associated Press Writer Tom Hays in New York and Pete Yost in Washington contributed to this report.

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