It is what everybody predicted would happen. When Attorney General Stedman Graham er, Eric Holder announced that some of the Gitmo terrorist trials would be switched from military tribunals to civilian courts, people warned that key evidence would now be thrown out because it was obtained by enhanced interrogation techniques such as water boarding. That’s exactly what happened to day in the trial of Ahmed Khalfan Ghailani whose trial was moved into the civilian system last year. The terrorist Ghailani is charged with conspiring in the 1998 bombings of the United States Embassies in Tanzania and Kenya, that killed 224 people.
The witness who was banned from testifying, Hussein Abebe, says he sold TNT to Mr. Ghailani that was later used to blow up the United States Embassy in Dar es Salaam, Tanzania. The Judge agreed that the government learned of Mr. Abebe through Mr. Ghailani’s interrogation when he was being held in an overseas jail run by the Central Intelligence Agency.
According to Ghailani’s attorney, the terrorist underwent coercive interrogation and torture while in C.I.A. custody, and that any statements or evidence derived from them is tainted and inadmissible. The prosecution said Mr. Abebe’s decision to cooperate was voluntary and only remotely linked to Mr. Ghailani’s interrogation. “This is a giant witness for the government,” a prosecutor, Michael Farbiarz, told the judge last week, adding, “There’s nothing bigger than him.” Mr. Farbiarz cited Mr. Abebe’s testimony that Mr. Ghailani made repeated trips to buy “black-market explosives” from him, adding, “That’s done for not many reasons in this life.”
Judge Lewis Kaplan announced his decision today, blocking the government from calling their “Giant Witness”
“The court has not reached this conclusion lightly,” said U.S. District Judge Lewis A. Kaplan in Manhattan. “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.”
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The Obama administration has made Ghailani its test case to prove that the civilian criminal-justice system works perfectly well in wartime against enemy combatants — to show that we don’t need military commissions or other alternatives specially tailored to address the peculiarities of terrorism cases. The administration figured Ghailani was a safe bet. After all, the embassy-bombing case had already been successfully prosecuted once: In 2001, prior to 9/11, four jihadists were tried, convicted, and sentenced to life imprisonment (although the jury voted to spare the two death-penalty defendants).
Yet, to prove its political point that there is no downside in vesting Ghailani — a Tanzanian national whose only connection to the United States is his decision to make war on it — with all the constitutional rights of an American citizen, the Justice Department has had to slash its case. DOJ is also finding that even more critical evidence may be suppressed by the trial judge. In short, the slam dunk has become a horse race, one the government could actually lose.