By Peter Finn
Washington Post Staff Writer
Thursday, October 7, 2010; A4
A federal judge in New York has barred a key prosecution witness from testifying in the trial of a suspect in the 1998 U.S. Embassy bombings in East Africa after ruling that the government learned of the man through coercive CIA interrogations at a secret prison overseas.
The ruling is a significant blow to prosecutors who had described the man as a "giant witness" in the case against Ahmed Ghailani, a Tanzanian accused of obtaining bomb material, scouting the U.S. Embassy in the Tanzanian capital and acting as guide for an Egyptian suicide bomber. Nearly simultaneous bombings in Dar es Salaam and Nairobi killed 224 people, including 12 Americans.
The decision by Judge Lewis A. Kaplan could complicate any effort by the Obama administration to revive its plans to put major al-Qaeda figures held in Guantanamo Bay, Cuba, on trial in civilian courts in the United States.
Ghailani is the only former high-value Guantanamo Bay detainee to have been transferred to the United States for prosecution in federal court. The case has been watched to see whether Ghailani's time in CIA custody will impede the prosecution and bolster the case of those who say that high-value detainees should be tried by military commissions, where the ability to introduce statements tainted by coercion appears to be more elastic.
Hussein Abebe, a Tanzanian taxi driver, was expected to testify that he sold Ghailani the TNT used in the bombing. But Kaplan essentially ruled that the coercion of Ghailani led to the discovery of Abebe as a witness. He delayed the trial to allow the government time to rethink its legal strategy.
Ghailani was seized by Pakistani authorities after a 10-hour shootout in July 2004 and was turned over to the United States. He was taken to several secret CIA facilities overseas before he and 13 other high-value detainees were transferred to Guantanamo Bay in 2006.
"The court has not reached this conclusion lightly," Kaplan wrote in a three-page order barring Abebe's testimony. "It is acutely aware of the perilous nature of the world we live in. 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."
The judge said that Ghailani could probably continue to be held as "something akin to a prisoner of war" even if he were found not guilty.
Attorney General Eric H. Holder Jr. said Wednesday that he was confident the Justice Department can successfully prosecute the case despite the setback. But critics of transferring Guantanamo detainees to federal court seized on the ruling.
"The decision of the judge to delay the Ghailani trial and dismiss a key government witness is a clear indication of the problem when prosecuting war on terror detainees in a federal court," said Kirk Lippold, a senior military fellow at Military Families United and former commander officer of the USS Cole, which was attacked by al-Qaeda in 2000 in Yemen.
Some legal experts warned against reading too much into the decision.
"It would be dangerous to interpret this ruling as forever foreclosing or damaging the possibility of other cases coming to federal court because each case is sui generis," said Charles D. "Cully" Stimson, former deputy assistant secretary of defense for detainee affairs in the Bush administration and now a senior legal fellow at the Heritage Foundation. "It's not clear the outcome would have been any different in a commission."
Military commission rules nonetheless appear to contemplate the admission of evidence derived from statements obtained through torture or cruel treatment if a military judge finds that the evidence "would have been obtained even if the statement had not been made" or the "use of such evidence would otherwise be consistent with the interests of justice."
But there has been no trial of a former CIA detainee at Guantanamo Bay, and it is unclear how the judges there would act if asked to admit evidence obtained through torture or coercion.
"It hasn't been tested, but it's shocking to us that the rules are constructed to even consider that type of evidence," said Marine Col. Jeffrey Colwell, who leads military defense lawyers at Guantanamo Bay.