The New York Times reports:
A federal judge barred prosecutors on Wednesday from using a crucial witness in the first trial of a former Guantánamo detainee, adding to the fierce debate over whether the government can successfully prosecute terrorist detainees in civilian court. The trial of Ahmed Khalfan Ghailani, who faces charges in the 1998 bombings of two United States Embassies in East Africa, has been seen as a test of President Obama’s goal of moving many other detainees, like Khalid Shaikh Mohammed, into federal court and, ultimately, closing Guantánamo.
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Prosecutors say the disputed witness, Hussein Abebe, sold Mr. Ghailani the TNT used to blow up the embassy in Dar es Salaam. They say that Mr. Abebe agreed voluntarily to testify against Mr. Ghailani, and that his decision to cooperate was linked only remotely to the interrogation. Mr. Abebe had been characterized by prosecutors as a “giant witness for the government.” On Friday, a prosecutor, Michael Farbiarz, explained in court that without Mr. Abebe’s testimony about selling the TNT to Mr. Ghailani, “the government has no way of putting such evidence in front of the jury at all.” But in a three-page order, Judge Kaplan said 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.”
If President Barack Obama and Attorney General Eric Holder do not now appeal Judge Kaplan’s decision, it would perhaps leave in legal limbo to a federal trial of Khalid Sheikh Mohammed whether evidence derived from coercive interrogations and ‘clean team’ interrogations may be entered into evidence in federal court.
Do the American people want them to wait and take that risk during the trial of the mastermind of 9/11?
Prior to Judge Kaplan’s decision, Andrew McCarthy explained why prosecutors did not attempt to introduce the results of the 2007 ‘clean team’ interrogations by the FBI that also resulted in the identification of the man who sold Ghailani the explosives used in the 1998 bombing of our embassy in Tanzania:
The Justice Department figured it could roll those dice because it has a witness, Hussein Abebe, who is prepared to testify that he sold Ghailani the TNT. Not so fast, say Ghailani’s lawyers. They argue that the government learned about Abebe only because of Ghailani’s confession. By their lights, having agreed not to use it, the government implicitly concedes that the confession is toxic; therefore, the argument goes, it is no more proper for prosecutors to call a witness discovered because of the confession than it would be to use the confession itself.
If Holder and the prosecutors successfully appeal Kaplan’s decision and Ghailani is convicted, it would form the basis for an appeal that quite likely would be decided by the Supreme Court.
If they proceed with Ghailani’s trial without the direct testimony from the man who sold Ghailani the explosives and Ghailani is acquitted, there would be no post-trial appeal of the decision. Yet the public’s outrage would almost surely force Congress to ban bringing Khalid Sheikh Mohammed or any Guantanamo detainee to the U.S. for trial.
Keep America Safe’s Chairman Liz Cheney put it this way:
“The Obama Administration has dedicated itself to providing al Qaeda terrorists the kind of due process rights normally reserved for American citizens. By insisting on trying Ahmed Ghailani in civilian court with full constitutional rights, instead of by military commission, President Obama and Attorney General Holder are jeopardizing the prosecution of a terrorist who killed 224 people at U.S. Embassies in Kenya and Tanzania. If the American people needed any further proof that this Administration’s policy of treating terrorism like a law enforcement matter is irresponsible and reckless, they received it today.”