Embassy Bombing Witness Barred in Trial by Judge Is `Critical,' U.S. Says

A witness the U.S. says is “critical” to its case against Ahmed Ghailani, an alleged terrorist charged with bombing two U.S. embassies, can’t testify because Ghailani was “coerced” into disclosing the man’s identity, a judge ruled.

U.S. District Judge Lewis Kaplan in New York yesterday rejected a request by prosecutors to allow Hussein Abebe, a Tanzanian miner, to testify that he sold five crates of dynamite to Ghailani before the 1998 blasts in Tanzania and Kenya. Kaplan ruled that Abebe’s testimony is too closely tied to coerced statements made by Ghailani while he was in CIA custody and must be excluded from the trial.

“The court has not reached this conclusion lightly,” Kaplan said. “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 only when it is convenient, but when fear and danger beckon in a different direction.”

The judge postponed the start of Ghailani’s trial from yesterday to Oct. 12. The decision marked a setback for prosecutors, who told Kaplan that Abebe is the only person who could give a first-hand account of Ghailani’s role in the attacks.

Abebe was set to testify that he “sold substantial quantities of explosives, detonation cord and electric detonators to the defendant prior to the embassy bombings,” according to a government memo filed with Kaplan last month under seal because it contained classified information.

“Without Abebe’s testimony, the jury will hear no evidence regarding the defendant’s purchase of crates of explosives,” Assistant U.S. Attorney Michael Farbiarz wrote in the memo, which was unsealed yesterday.

Bomb ‘Factory’

The witness’s testimony could be corroborated with evidence that includes business records as well as clothing “covered in TNT residue” found by U.S. investigators during a 1998 search of Ghailani’s home in Tanzania, Farbiarz said. Bomb detonators of the kind that Abebe would testify he sold to Ghailani were found in a “factory” where the Tanzania bomb was built and in a cabinet in Ghailani’s residence, the prosecutor said.

Abebe’s testimony “is essential to any full and fair understanding of the defendant’s role in the embassy bombings,” Farbiarz wrote.

Ghailani, 36, is the first detainee held in Guantanamo Bay, Cuba, to be tried in a U.S. civilian court. He is charged with participating in a global conspiracy with al-Qaeda leader Osama bin Laden that includes the Aug. 7, 1998, bombings at U.S. embassies in Tanzania and Kenya that killed 224 people, including 12 Americans. At least 5,000 others were injured.

‘Not Torture’

“This case will be tried upon lawful evidence. Not torture. Not coercion,” Ghailani’s lawyer, Peter Quijano, said at a news conference after yesterday’s ruling.

Ghailani’s lawyers had argued their client’s statements about Abebe were made “under duress” when he was held in Central Intelligence Agency custody from 2004 to 2006 after he was captured.

“For our system of justice to work, the Fifth Amendment must apply to Ahmed Ghailani, as much as to any other defendant before the bar of justice,” Quijano said. “It is the Constitution that won a great victory today.”

Ghailani, a Tanzanian national, is accused of helping to deliver bomb-making components, including TNT and oxygen tanks, in a truck detonated outside the U.S. embassy in Dar es Salaam, Tanzania, on Aug. 7, 1998. Another bomb went off almost simultaneously outside the U.S. embassy in Nairobi, Kenya.

Bin Laden Bodyguard

He fled after the bombings, the U.S. says. He served as a cook and bodyguard for bin Laden and later as a document forger, prosecutors said. A federal grand jury in New York indicted him in December 1998.

Ghailani was captured in Pakistan in July 2004 and held by the CIA at “black sites” where he was subjected to “enhanced interrogation techniques,” the U.S. has said. While in CIA custody, his defense lawyers say he was “tortured.”

He was taken to Guantanamo Bay in September 2006 and transferred to federal court in New York last year for trial, after the Obama administration said it planned to close Guantanamo and try some terrorism suspects held there in civilian courts.

The U.S. said Abebe cooperated willingly and that he wasn’t coerced. Prosecutors have previously told Kaplan they wouldn’t use Ghailani’s confessions because they were obtained under coercion by the CIA.

Kaplan said the court “now finds and concludes that the government has failed to prove that Abebe’s testimony is sufficiently attenuated from Ghailani’s coerced statements to permit its receipt in evidence.”

Future Prosecutions

The decision may affect decisions for future prosecutions of alleged terrorists in civilian court, Barkow said in a phone interview. He compared the current case with the trial of four alleged co-conspirators in 2001 who were accused of conspiring with bin Laden in a global conspiracy to kill U.S. nationals. They were convicted in New York federal court and are all serving life sentences.

“In the first trial, the government had the confessions of nearly all of the defendants,” said Anthony Barkow, a former federal prosecutor who handled terrorism cases and now directs a center on criminal prosecutions at New York University Law School. “They didn’t have that here, but they had a witness who would be able to say he sold Ghailani explosives.”

“That is really important and powerful testimony,” Barkow said. “So it does appear to be a significant ruling and a significant loss” for the government.

Yesterday’s ruling leaves intact the 286 federal counts against Ghailani. He faces as long as life in prison if convicted of the most serious charge of conspiracy to kill U.S. nationals. He has pleaded not guilty. Even if he is acquitted of all charges, it is unlikely he will be freed, the judge said.

‘Prisoner of War’

“His status as an ‘enemy combatant’ probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and al-Qaeda and the Taliban end even if he were found not guilty in this case,” Kaplan wrote.

Jessie Erwin, a spokeswoman for Manhattan U.S. Attorney Preet Bharara, said the office didn’t have an immediate comment on yesterday’s ruling or whether the U.S. will appeal.

U.S. Attorney General Eric Holder called Kaplan’s decision “one ruling in one case by one judge” and he said the government intends to proceed with the trial.

“The true test is how these cases are resolved,” he said at a news conference. “It’s too early to say the Ghailani matter will not be successful.”

‘Thoughtful Review’

In court, Farbiarz asked Kaplan to postpone the trial, saying he needed to review the full opinion.

“The government, in a setting as consequential as this one, wants to make a thoughtful review,” Farbiarz said.

Kaplan previously ruled in favor of the U.S. and refused to dismiss the indictment as a violation of Ghailani’s right to a speedy trial. He also rejected a defense claim of outrageous government misconduct.

Three years ago, Kaplan ruled against the U.S. in a high- profile prosecution of 17 ex-KPMG LLP executives charged in the largest tax-shelter case in U.S. history.

Kaplan dismissed charges against 13 defendants in July 2007, saying prosecutors violated their right to counsel. That decision was upheld by a federal appeals court in August 2008.

The case is U.S. v. Ghailani, 98-cr-1023, U.S. District Court, Southern District of New York (Manhattan).

To contact the reporters on this story: Patricia Hurtado in New York Federal Court at pathurtado@bloomberg.net; Bob Van Voris in New York Federal Court at rvanvoris@bloomberg.net.

To contact the editor responsible for this story: David E. Rovella at drovella@bloomberg.net.

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