Judge Blocks Key Witness in Embassy-Bombing Case

James Cohen in The Wall Street Journal, October 07, 2010

Media Source

By CHAD BRAY

NEW YORK—A federal judge barred prosecutors from using a key witness in the trial of a Tanzanian man in the bombing of two U.S. embassies in Africa because the witness's identity was discovered through questionable interrogation techniques used in secret CIA custody.

The decision, which delays the trial of Ahmed Khalfan Ghailani until next week, marks a setback in a case that is seen as a major test for the Obama administration's plan to try detainees who have been held at Guantanamo Bay, Cuba, in civil courts rather than before military tribunals.

Mr. Ghailani is the first detainee from Guantanamo to face trial in the U.S. He is facing charges of conspiracy, murder, attempted use of weapons of mass destruction and other charges stemming from two bombing attacks on U.S. embassies in Tanzania and Kenya in 1998 that killed 224 people and injured hundreds more. He has pleaded not guilty.

Federal prosecutors want to call Hussein Abebe, another Tanzanian man, to testify in the case. Prosecutors said they expected Mr Abebe to tell the court that he sold dynamite that was ultimately used in the bombing to Mr. Ghailani and that he believed Mr. Ghailani planned to use the explosives for mining.

Defense lawyers argued that prosecutors learned of Mr. Abebe's identity as a result of statements made by Mr. Ghailani while he was in the custody of the Central Intelligence Agency. While in CIA custody, Mr. Ghailani was subject to so-called enhanced interrogation techniques, which his lawyers have said equated to torture.

"This case will be tried upon lawful evidence," said Peter Quijano, Mr. Ghailani's lawyer, in a brief statement outside the courthouse Wednesday. "Not torture. Not coercion."

U.S. District Judge Lewis A. Kaplan, in a brief order Wednesday, essentially found that prosecutors failed to show that Mr. Abebe's potential testimony was sufficiently removed from Mr. Ghailani's statements while in CIA custody to be allowed into evidence at this time.

"The court has not reached this conclusion lightly," said Judge Kaplan. "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. To do less would diminish us and undermine the foundation upon which we stand."

Jury selection had been expected to resume Wednesday, but the case will now resume Oct. 12 to give prosecutors time to determine whether they want to appeal the judge's decision. The trial is expected to last 10 to 16 weeks.

The judge was expected to release a lengthier opinion later on Wednesday outlining his reasoning. However, the opinion is likely to include classified materials and it could be several weeks before a redacted version is released publicly.

At a hearing last week, Assistant U.S. Attorney Michael Farbiarz said Mr. Abebe was a "giant" witness for the government and directly linked Mr. Ghailani to the explosives used in the attack.

James A. Cohen, a professor at Fordham University's School of Law, said if Mr. Abebe's testimony was excluded, the government could still argue its case, even if it had to resort to "workarounds."

Laura Pitter, a counterterrorism advisor at Human Rights Watch, an advocacy group, noted that four co-defendants were previously convicted in 2001, before Mr. Abebe was on the government's radar. "I'm sure they'll have plenty of other evidence to put forward," Ms. Pitter said.