The U.S. can’t call a key witness in the trial of Ahmed Ghailani, an alleged terrorist charged with bombing two U.S. embassies, because Ghailani was “coerced” by the CIA into disclosing the witness’s identity, a judge ruled.
U.S. District Judge Lewis Kaplan, in New York, 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. It delayed a trial that was supposed to start today and marked a setback for a prosecutor who called Abebe a “giant” witness in the case and said he’s the only person who could give a first-hand account of Ghailani’s role in the attacks.
“That is really important and powerful testimony,” said Anthony Barkow, a former federal prosecutor who handled terrorism cases now on the faculty at New York University Law School. “So it does appear to be a significant ruling and a significant loss” for the government.
Kaplan ruled that Abebe’s testimony is too closely tied to coerced statements made by Ghailani while he was in the custody of the Central Intelligence Agency and must be excluded from the trial. The ruling, made public today, will delay the trial’s start until Oct. 12 to give the government time to decide whether to appeal.
“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.”
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.
“This case will be tried upon lawful evidence. Not torture. Not coercion,” Ghailani’s lawyer, Peter Quijano, said in a news conference.
Ghailani’s lawyers had argued their client’s statements about Abebe were made “under duress” when he was held in CIA 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.”
TNT, Oxygen Tanks
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.
Ghailani 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.
He 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.”
Ghailani 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.
Prosecutors previously told Kaplan they wouldn’t use Ghailani’s confessions after acknowledging his statements were obtained under coercion. The U.S. had argued Abebe cooperated willingly and that his testimony was removed from any information Ghailani provided about the witness.
“The jury can hear a witness that says, ‘Yeah, I sold repeatedly explosives to the defendant and the defendant lied to me about why he wanted them,’” Assistant U.S. Attorney Michael Farbiarz told Kaplan at a Sept. 15 hearing.
Kaplan rejected that argument in his ruling. He 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.”
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 Barkow, director of a center on criminal prosecutions at N.Y.U. law school. “They didn’t have that here, but they had a witness who would be able to say he sold Ghailani explosives.”
Barkow said it’s not clear that Abebe would have been allowed to testify at a Guantanamo military tribunal because the U.S. amended tribunal evidence rules to make them more restrictive.
Kaplan held a hearing last month to hear from Abebe before deciding whether to let him testify against Ghailani.
Today’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. The judge said even if he is acquitted of all charges it is unlikely he will be freed.
‘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 today’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.”
In court, Farbiarz asked Kaplan to postpone the trial, saying he needed to review the full opinion. While Kaplan read his three-page ruling to a courtroom filled with federal agents and prosecutors, he said a supplement to his written decision is sealed from public view because it contains classified information.
“The government, in a setting as consequential as this one, wants to make a thoughtful review,” Farbiarz said. He asked that jury selection, slated to be completed today, be put on hold. The judge agreed. Kaplan had already delayed the start of the start of the trial from Oct. 4 to today.
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. The judge said he found it “intolerable” that prosecutors threatened to indict New York-based KPMG, which likely would have destroyed the firm, unless it stopped paying legal bills for the former executives.
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).