Prosecutors in Guantanamo Bay suspect's terror trial won't appeal ban on witness

Sunday, October 10, 2010; 7:30 PM

NEW YORK - Prosecutors said Sunday that they will not appeal a U.S. judge's refusal to let a key witness testify in the first criminal trial of a terrorism suspect from the Guantanamo Bay military prison in Cuba.

"The government . . . has decided not to pursue an appeal from the court's decision," said a letter from the U.S. attorney for the Southern District to the presiding judge in the case.

The trial of Ahmed Khalfan Ghailani at the federal court in Manhattan was delayed Wednesday when Judge Lewis Kaplan ruled against the participation of a key government witness.

Ghailani, 36, is a Tanzanian charged with conspiring with Islamic militants to bomb the U.S. embassies in Tanzania and Kenya in 1998. He faces life in prison if convicted in the attacks, which killed 224 people.

Prosecutors had wanted the court to hear testimony from Tanzanian witness Hussein Abebe. They say Abebe told FBI agents that he sold Ghailani explosives that were used in one of the bombings.

The defense argues that Ghailani was coerced into naming Abebe and that he should not be allowed to testify.

From the outset, prosecutors said they would not use any statements Ghailani may have made while in CIA custody after his July 2004 arrest in Pakistan. Prosecutors have acknowledged that those statements probably were coerced.

But Kaplan ruled Wednesday that the government would not have been able to find Abebe without those statements, and he refused to let him testify. The judge said he would not allow coerced testimony to be admitted into civilian courts.

In Sunday's letter, U.S. Attorney Preet Bharara said the government did not wish to delay the trial with an appeal, adding that its case was sufficient without Abebe's testimony.

Bharara said foreign witnesses and victims had already arrived in New York and were counting on the trial's original start date.

Ghailani's trial is being watched closely as a test of President Obama's approach to handling the 174 suspected terrorists held at Guantanamo Bay, including Khalid Sheik Mohammed, the self-described mastermind of the Sept. 11, 2001, attacks.

The Obama administration has adopted what it calls a flexible approach, favoring military tribunals in some cases and civilian trials in others. Many Republicans say all terrorism suspects should be tried in military tribunals.

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