Prosecutors dealt blow as star witness can't testify against alleged Al Qaeda thug Ahmed Ghailani
BY Scott Shifrel and James FanelliDaily News
October 7, 2010
The judge in the first civilian trial of a Guantanamo Bay prisoner dealt a major blow to prosecutors - and possibly all terror cases - Wednesday by tossing the government's star witness.
The startling decision undermined the case against accused Al-Qaeda member Ahmed Ghailani, who is charged with bombing U.S. embassies in Africa in 1998.
It could also potentially wreck the trials of other Gitmo prisoners, including 9/11 mastermind Khalid Sheikh Mohammed's.
Federal prosecutors had banked on the testimony of Hussein Abebe, a Tanzanian miner who allegedly sold Ghailani the dynamite used in the explosion.
Instead, in a bold move, Manhattan Federal Judge Lewis Kaplan scratched Abebe from the witness list on the day the trial was to open.
He said the testimony is inadmissible because CIA agents only learned of Abebe by coercively interrogating Ghailani at a rendition site outside U.S. soil.
The "testimony would be the product of statements made by Ghailani to the CIA under duress," Kaplan said.
He added that allowing Abebe to testify violated the law.
"The court has not reached this conclusion lightly," Kaplan said. "It is acutely aware of the perilous nature of the world in which we live, but the Constitution is the rock upon which our nation rests."
Legal experts said Kaplan's decision called into question how the government has collected evidence against all Gitmo prisoners.
It also encumbered their prosecution in civilian courts - a policy President Obama has championed over military tribunals, they said.
"This does not portend well for the government when they try to bring evidence for these other cases," said former federal prosecutor Robert Mintz. "Obviously, this is a significant setback for the government."
Rep. Peter King (R-L.I.) called the decision another reason why civilian courts are the wrong place for Gitmo prisoners.
"I think a judge in the military tribunal court would admit the witness and Ghailani's confession," King said.
After the ruling, Kaplan postponed the trial for a week after prosecutors asked for time to consider an appeal.
Ghailani's defense lawyer, Peter Quijano, praised Kaplan's decision, saying the prosecution's case was based on illegally obtained evidence.
"We could not agree more," Quijano said. "This case will be tried upon lawfully obtained evidence only. Not torture. Not coercion. For our system of justice to work, the Fifth Amendment must apply to Ahmed Ghailani as much as any other defendant."
Ghailani is the first Gitmo prisoner to be tried in a civilian court.
He is charged with participating in a global conspiracy with Al-Qaeda head Osama bin Laden and for his role in two Aug. 7, 1998, bombings at U.S. embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya. The blasts killed 224 people and injured more than 5,000.
Ghailani's case is seen as a test run before the civil prosecution of 9/11 plotter Mohammed.