A federal judge said he barred a key witness from testifying against Ahmed Ghailani, charged with bombing two U.S. embassies in 1998, because the man wasn’t “credible” and because Ghailani was “coerced” into identifying him while in CIA custody.
U.S. District Judge Lewis Kaplan in New York said Oct. 6 he wouldn’t allow Hussein Abebe, a Tanzanian miner, to testify he sold five crates of dynamite to Ghailani before the blasts in Tanzania and Kenya. Kaplan issued a full ruling today explaining his decision, some of which remained classified and redacted.
Kaplan said Ghailani, held by the CIA from 2004 to 2006 after he was captured in Pakistan, was coerced into identifying Abebe, who wasn’t found until eight years after the attacks. The judge also said the reasons Abebe gave during a pretrial hearing for wanting to testify against Ghailani were “unpersuasive pretense” and that his motive was “purely to avoid prosecution and other feared adverse consequences.”
“The record makes it clear that Abebe never would have been identified and located without the information contained in a series of coerced statements made by Ghailani,” Kaplan wrote in today’s 60-page ruling.
Ghailani, 36, is the first detainee held in Guantanamo Bay, Cuba, to be tried in a U.S. civilian court. Opening statements and witness testimony in his Manhattan jury trial started this week. He faces 224 counts of murder for the death toll in the attacks and may be sentenced to life in prison if convicted.
Pleaded Not Guilty
Ghailani, who pleaded not guilty to charges that he helped deliver bomb-making components used in the Tanzania blast, says he didn’t knowingly participate in the attacks and was duped by others into running errands for their plot.
Kaplan heard last month from Abebe, 46, who hasn’t been prosecuted by U.S. or Tanzanian authorities. Abebe told the judge that Ghailani “tricked” him into selling the dynamite for “pearl mining.” Abebe told Kaplan he wanted to testify against Ghailani because he was “anxious to be coming to clean myself up.”
Abebe said he cried after an August 2006 session with Tanzanian authorities “because he was angry that the people responsible for the bombings had used him in this manner,” according to Kaplan’s ruling today.
‘Tears Were Products’
“The court does not credit that testimony,” Kaplan wrote. “The tears were products, at least primarily, of Abebe’s fears of adverse consequences as a result of his admitted involvement in the bombings.”
Ghailani is charged with participating in a global conspiracy with al-Qaeda leader Osama bin Laden. He was captured in Pakistan in 2004 and held by the Central Intelligence Agency at secret sites where he was subjected to what the U.S. has called “enhanced interrogation techniques” and what his lawyers have labeled “torture.”
He was moved to Guantanamo in 2006 and transferred to federal court custody in New York in 2009, after the Obama administration said it planned to close Guantanamo and try some terrorism suspects held there in civilian courts.
A prosecutor described Abebe as a “critical” witness, the only person who could give a first-hand account of Ghailani’s role in the attacks. Prosecutors previously told Kaplan they wouldn’t use Ghailani’s confessions after they acknowledged 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 him.
The judge rejected the government’s arguments in today’s ruling.
“If the government is going to coerce a detainee to provide information to our intelligence agencies, it may not use that evidence-- or fruits of that evidence that are tied as closely related to the coerced statements as Abebe’s testimony would be here -- to prosecute the detainee for a criminal offense,” Kaplan wrote.
The judge also said he isn’t sure that Abebe’s testimony would be admitted in a military tribunal instead of a civilian trial.
“It is very far from clear that Abebe’s testimony would be admissible if Ghailani were being tried by military commission, even without regard to the question whether the Fifth Amendment would invalidate any more forgiving provisions of the rules of evidence otherwise applicable in such a proceeding,” he wrote.
Kaplan previously rejected Ghailani’s bid to dismiss his indictment based on a claim of outrageous government misconduct for the alleged torture. He also refused to dismiss the indictment as a violation of the defendant’s right to a speedy trial.
Prosecutors Won’t Appeal
Prosecutors said Oct. 10 that they wouldn’t appeal Kaplan’s decision excluding Abebe’s testimony and would carry on in the trial without him.
A delay in the trial would inconvenience many government witnesses who have “long waited to see the defendant tried for his crimes,” prosecutors said in their letter to Kaplan.
In another development, Kaplan today approved a lawyer to represent Juror No. 6. The judge said the juror, whose identity hasn’t been disclosed because the panel is anonymous, brought to his attention a “possible violation” of a federal law that protects juror’s rights while serving. Kaplan said the juror had requested legal representation.
Notes From Jurors
At the start of court yesterday, Kaplan said that he had received notes from two jurors and a letter from an employer of a third juror saying that serving on the case would be a hardship. Their requests came on the second day the jury had been seated in the case.
Kaplan denied their requests. “This creates an extremely difficult problem for me,” he said. “You all had quite a few opportunities to include whether serving on this jury would be a hardship.”
During jury selection last month, Kaplan repeatedly asked jurors to indicate if serving on a trial that could last more than two months would be a hardship. None indicated such service would be a problem.
The case is U.S. v. Ghailani, 98-CR-1023, U.S. District Court, Southern District of New York (Manhattan).