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Judge won't allow key witness at terror trial

NEW YORK — A federal judge barred prosecutors on Wednesday from using a crucial witness in the first trial of a former Guantanamo detainee, reigniting a fierce debate over whether the government can successfully prosecute terrorist detainees in civilian court.

The trial of Ahmed Khalfan Ghailani, who faces charges in the deadly 1998 bombings of two U.S. embassies in East Africa, has been seen as a test of President Barack Obama's goal of moving other detainees, like Khalid Shaikh Mohammed, into federal court and, ultimately, closing Guantanamo.

In the months since Ghailani was brought to New York from Guantanamo, Judge Lewis Kaplan of U.S. District Court in Manhattan has rejected defense requests to dismiss the case because of violations of Ghailani's right to a speedy trial and because of accusations he was tortured.

But just as the trial was to begin on Wednesday, Kaplan ruled that he would not allow the witness to testify. He noted that the government had acknowledged that it had identified and located the witness through interrogation of Ghailani when he was earlier held in a secret overseas jail run by the CIA. His lawyers have said he was tortured there.

"The court has not reached this conclusion lightly," Kaplan wrote. "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. We must follow it not when it is convenient, but when fear and danger beckon in a different direction."

The ruling stunned prosecutors, who asked for and received an immediate delay in the case while they decide whether to appeal. It also re-energized the debate over whether terrorism suspects captured overseas should be prosecuted in civilian courts and whether the American justice system is up to the task.

Despite the setback, Attorney General Eric Holder said at a Washington news conference that he remains confident the Justice Department can successfully prosecute Guantanamo detainees in civilian court. He noted there have been over 300 successful prosecutions in civilian courts in terrorism cases.

The delay came during the final selection of jurors in the case against Ghailani, a Tanzanian charged in the 1998 bombing of two U.S. embassies in Africa. The twin attacks killed 224 people, including a dozen Americans. Ghailani is also accused of being an aide to Osama bin Laden.

The man who was supposed to be the government's star witness, Hussein Abebe, said he sold explosives to Ghailani that were used in the bombing. But defense lawyers said prosecutors never would have learned about Abebe if Ghailani had not divulged his identity while undergoing harsh interrogations at a secret overseas CIA camp in 2004.

Ghailani's attorney, Peter E. Quijano, praised the judge's ruling. "It is the Constitution that won a great victory today," he said. "This case will be tried upon lawful evidence, not torture, not coercion."

Abebe had been characterized by prosecutors as a "giant witness for the government." On Friday, prosecutor Michael Farbiarz explained in court that without Abebe's testimony about selling the TNT to Ghailani, "the government has no way of putting such evidence in front of the jury."

But in a three-page order, Judge Kaplan said that "the government has failed to prove that Abebe's testimony is sufficiently attenuated from Ghailani's coerced statements to permit its receipt in evidence."

Michael Farkas, a former Army judge advocate and now a civilian attorney, said the ruling shows why those backing military tribunals for Guantanamo detainees contend that "civilian criminal courts are no place for war criminals." He said the military rules of evidence do not give defendants the protections they are afforded in the civilian justice system.

"In a military tribunal, this witness would not have been precluded," Farkas said.

The judge noted that Ghailani's status of "enemy combatant" probably would permit his detention as something akin "to a prisoner of war until hostilities between the United States and al Qaida and the Taliban end, even if he were found not guilty."

Anthony S. Barkow, executive director of the Center on the Administration of Criminal Law at the New York University School of Law, called the ruling "a significant blow" to prosecutors. But he noted that Ghailani was indicted before they learned about the witness, and he said they presumably have ample evidence without him.

The ruling "will certainly be cited in arguments relating to future decisions as to where to try these cases," said Barkow, a former federal terrorism prosecutor in New York City.

There was little controversy when Ghailani was brought to New York for trial in 2009, but the subject of where to try Guantanamo detainees became heated after Holder announced last November that the professed 9/11 mastermind Khalid Sheikh Mohammed and four others would be tried blocks from where the World Trade Center stood. Holder later said he was reconsidering.

Information from the New York Times and Associated Press was used in this report.

FBI wants rules on surveillance

WASHINGTON — FBI director Robert Mueller on Wednesday called for changes in federal law to help his agents with surveillance of communications in antiterrorism and other criminal investigations.

At a conference of intelligence experts, Mueller said that in some instances communications companies are unable to provide electronic communications the FBI seeks in response to court orders.

His comments came as the Obama administration considers proposals that would require service providers to make the plain text of encrypted conversations — over the phone, computer or e-mail — readily available to law enforcement.

The FBI's general counsel has said proposed changes would not expand law enforcement authority, but privacy advocates disagree.

Judge won't allow key witness at terror trial 10/06/10 [Last modified: Thursday, October 7, 2010 7:05am]
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