U.S. Judge Excludes Evidence Obtained through Torture in New York Trial of Former GITMO Detainee Ahmed Ghailani

Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York ruled today that the federal government could not use the testimony of a reportedly key witness in the prosecution’s case against former Guantanamo detainee Ahmed Ghailani, who is on trial for his suspected involvement in the 1998 bombings of U.S. embassies in Kenya and Tanzania. [Washington Post; BBC]  Today’s judgment is available here. [JNSLP]  The witness, Hussein Abebe, also a Tanzanian citizen, was reportedly to testify that he provided Ghailani with explosives.  The government did not seek to admit Ghailani’s coerced statements themselves.

In 1998, the U.S. government presented charges against Ghailani in the Southern District of New York, and an indictment and warrant for his arrest were issued.  Ghailani remained at large until 2004, when he was captured by the Pakistani government and handed over to the CIA, which held him for roughly two years in various “black sites”.  He was transferred to Guantanamo Bay in 2006 and remained there until his transfer to face trial in New York in June 2009.

Judge Kaplan’s highly redacted August 18 ruling ordered a hearing to hear argument on the issue of Abebe’s testimony. [JNSLP]

Today, Judge Kaplan ruled that Abebe’s testimony was fruit of a poisonous tree and could not be admitted into evidence.  In reaching his decision, Judge Kaplan found that the existence of the would-be witness for the prosecution was learned through coercive interrogation of Ghailani carried out by the CIA at secret detention sites and Guantanamo, and was not convinced by the government’s arguments that it would have found the witness without the use of the coerced information or that the link between government coercion of Ghailani and the witness’ testimony was too remote to violate the Constitution.  Ghailani had argued that the witness’ testimony should be excluded because the identity of the witness was obtained through coerced interrogation, in that Ghailani was denied the right to counsel and was subjected to “extremely harsh interrogation methods”.  The defense classified the interrogation methods as torture.

Judge Kaplan had previously ruled on Ghailani’s motion to dismiss the indictment for violation of his speedy trial right (having been held for nearly five years before being presented for trial).  In his July 12, 2010 ruling, the judge denied the motion based on his findings that the government’s delay “served a valid purpose” of protecting national security, “Ghailani would have been detained as an enemy combatant  throughout the period of the government’s delay in this prosecution” anyway, and “Ghailani’s status as an enemy combatant always has made it uncertain whether he ever will be freed, regardless of the outcome of the criminal case”.

Judge Kaplan’s most recent ruling in the case also clearly states his understanding that Ghailani could legally be held indefinitely, writing:

his status as an “enemy combatant” probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case.

For more on U.S. courts’ interpretation of Executive power to authorize continued detention of terrorism suspects, see Human Rights First’s publication Habeas Works.

Ghailani’s trial has been rescheduled to begin October 12, allowing the government time to reformulate its litigation strategy.

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