Judge Bars Witness Testimony in Ghailani Terror Trial

U.S. District Court Judge Lewis Kaplan, presiding over the case of former Guantanamo detainee, Ahmed Khalfan Ghailani, ruled today that Hussein Abebe, a key government witness, may not take the stand because he was identified as a result of statements Ghailani made during secret CIA interrogation using harsh interrogation techniques, alleged to be torture. The Government, to avoid litigating the legality of the CIA's action, previously assured the judge information obtained during the interrogation would not be used at trial. Jury selection has been postoned until next week to give the Government time to regroup or 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 is charged in federal court with the 1998 Africa embassy bombings. He was captured in 2004, transferred to a CIA secret prison overseas, where he allegedly was tortured. He was then transferred to Guantanamo, where he stayed for almost three years. In 2009, he was charged in federal court in New York and transferred.

"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 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.

Even if acquitted, it's likely Ghailani would continue to be held in indefinite detention for the duration of "hostilities" between the U.S., al Qaeda and the Taliban...in other words, a life sentence.

Human Rights First praises the decision. Daphne Eviatar says:

The issue here is not that the testimony has been barred, but that the defendant was tortured. The fact that Judge Lewis recognizes that evidence derived through torture is inadmissible only strengthens the view that civilian federal courts, not military commissions, can best handle difficult terrorism cases.

Just yesterday, a federal court sentenced the Times Square bomber to life in prison. Let's be clear – the barred testimony in the Ghailani case is not the only evidence that the government will present in this case. The government convicted four of Ghailani's alleged co-conspirators in the same federal court, without the testimony of this particular witness. Judge Lewis' decision is significant, though, because it clearly signals that the court will not countenance evidence derived from torture."

The Government decided in 2009 not to seek the death penalty for Ghailani. Our prior coverage of the case is assembled here.

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    All well and good, but (none / 0) (#1)
    by scribe on Wed Oct 06, 2010 at 02:50:07 PM EST
    before we send this Judge up to be canonized, let us remember he is the same judge who, in his case, denied the defendant's motions to have the case dismissed on Speedy Trial Clause grounds (something about being held by the CIA/DoD didn't count) and on the grounds that the defendant had been tortured (something about torture of the defenfdant only becomes relevant if eiher he testifies or the government tries to use the torture-derived information).  And, further, this same judge did so by parsing and distinguishing away all sorts of law (and the Constitution) so as to reach that result.  He took sophistry to a new level to get there.

    So, while we want to encourage the kind of step the judge took, let's have no illusions about it.  I suspect he only took it because either (a) he knew the Second Crrcuit would reverse him on this decision, (b) the torture was so egregious he could not get away with allowing the testimony in, or (c) both.

    It's good to get context and be (5.00 / 2) (#2)
    by Anne on Wed Oct 06, 2010 at 03:45:06 PM EST
    able to put the decision in perspective - thanks for doing that.

    Part of me thinks that we are so starved for actual justice, on this and so many other issues, that we find ourselves latching onto any little glimmer of it when it appears.

    Which is pretty damn sad, I think.


    Abebe (none / 0) (#3)
    by Abdul Abulbul Amir on Wed Oct 06, 2010 at 07:13:38 PM EST

    Abebe sold Ghailani the TNT that killed those people in the embassy.