Southern District of New York Judge Lewis A. Kaplan on Thursday released his full opinion on the credibility of a critical witness he blocked from testifying at the trial of accused al-Qaida conspirator and U.S. Embassy bomber Ahmed Khalfan Ghailani.
In his 60-page opinion elaborating on his Oct. 6 three-page public order barring Hussein Abebe from the witness stand, Kaplan called Abebe's testimony "false" and "quite incredible" on the key issue of whether he was coerced into testifying by threat of prosecution either in New York or in Tanzania.
The judge also offered a more expansive review of the law concerning Abebe, a Tanzanian who allegedly sold the explosives to Ghailani used in the truck bomb detonated outside the U.S. Embassy in Dar es Salaam, Tanzania, on Aug. 7, 1998, 10 minutes after a similar bomb destroyed the embassy in Nairobi, Kenya. In all, 224 people, including 12 Americans, were killed and more than 4,000 were wounded.
The law in this matter was the Fifth Amendment, and the issue was whether Ghailani's right to be free from self-incrimination was violated because the identity and whereabouts of Mr. Abebe were "allegedly extracted by physical and psychological abuse of" Ghailani in a secret CIA prison.
Abebe, who one FBI agent testified "feared the knock at the door" after seeing Ghailani's face on Tanzanian television just after the bombings, was picked up in August 2006 and detained for 11 days.
He was first questioned by Tanzanian authorities and then visited by an FBI team that secured his promise to testify against Ghailani. The last four days of his detention were spent in lockup in Dar es Salaam. He was ultimately released on a bond describing him as having been "accused of committing the offense of conspiring to murder and terrorist acts."
That bond was eliminated over a year later after Abebe's brother-in-law, the chief judge of the Supreme Court of Tanzania, intervened on his behalf.
Abebe, who insists he is willing to testify voluntarily, flew to New York in August.
He was questioned in a two-day hearing before Kaplan in September, and the judge indicated then that his story did not add up. On Thursday, he made that even clearer.
"Abebe testified that he knew he was in trouble by the time he got to Zanzibar, but that he had no idea why he had been arrested until he was asked about the 1998 bombings in Zanzibar two days later," Kaplan wrote in his opinion. "This is quite incredible. Abebe had lived in fear of this arrest for years and understood from the moment he arrived at the police office in Arusha that the arrest related to the embassy bombings. He was very frightened."
The full opinion, the first extended analysis of the consequences of finding a witness through so-called "enhanced interrogation techniques," was released to the public Thursday after being vetted by a court security officer.
But the full opinion was delivered to lawyers on Oct. 6, giving the prosecution team led by Michael Farbiarz only a few days to decide whether to make an appeal as of right or finish jury selection and start Ghailani's trial.
The prosecution elected to proceed to a trial that Thursday completed its third day of testimony.
While the government's decision avoided a lengthy delay and the attendant risk that the 2nd U.S. Circuit Court of Appeals might make new law on "poisonous fruit" derived from illegal CIA interrogations of terror suspects, it also left Kaplan's opinion standing, giving it more force as precedent.
The prosecution has sought to avoid a head-on collision with judges over the consequences of the government's detention and interrogation program, a move that might isolate the law made here to the facts presented in Ghailani's case.
To that end, and no doubt for other reasons of strategy, the prosecution has vowed not to Ghailani's statements to the CIA and have admitted that he was abused only for purposes of the argument.
The judge's Oct. 6 decision prompted Ghailani defense lawyer Peter E. Quijano to claim a victory for the Fifth Amendment, telling the media, "This case will be tried upon lawfully obtained evidence only. Not coercion. Not torture."
The trial is being closely watched by people on all sides of the debate over whether terror suspects should be tried in civilian courts or whether trial by military commission is the better route. Ghailani is the first Guantanamo Bay detainee to be tried in civilian court.
The judge alluded to this controversy in footnotes in his opinion, United States v. Ghailani, S10 98 Crim. 1023.
"It is very far from clear that Abebe's testimony would be admissible if Ghailani were being tried by military commission, even without regard to the question whether the Fifth Amendment would invalidate any more forgiving provisions of the rules of evidence otherwise applicable in such a proceeding," the judge said.
Military Commissions Act §948r(a) and the Military Commission Rules of Evidence, Rule 304, he said, "preclude or restrict the use of 'statements obtained by torture or cruel, inhuman or degrading treatment,' and evidence derived therefrom, and could require exclusion of Abebe's testimony."
He added, "Even if they did not, the Constitution might do so, even in a military commission proceeding."
The judge in his opinion said Abebe's decision to testify in New York was not "a free and unconstrained" one.
"He quite plainly is no eager volunteer," the judge said. "He never would have come forward on his own. He is 'willing' to testify now only because he fears that things will go badly for him if he does not."
The judge also found hard to believe Abebe's statement at the hearing that he was coming forward to "cleanse" his heart and soul.
"If indeed Abebe's heart were moved by his having supplied the explosives that killed hundreds and wounded thousands of people, it would be very difficult to understand why he did not come forward on his own," the judge said. "The need for cleansing his heart and soul was at least as strong over the eight years before his arrest as it has been since."
The judge also explored further the distinction between the "deterrence analysis" of suppression under the Fourth and Fifth amendments, saying, "As this is a Fifth Amendment case, the receipt in evidence of Abebe's testimony itself would constitute a violation of the self-executing exclusionary rule inherent in the Constitution, not a matter of compliance with a purely utilitarian judge-made rule that was created in the twentieth century only to deter illegal searches and seizures."
He continued, "The CIA, acting upon the highest authority, used coercive methods to gain intelligence. This court has declined to this point to express an opinion on the constitutionality of such methods, considered in and of themselves. It declines to do so now because that issue is not before it.
"What is before it, however, is the question of whether the Fifth Amendment -- which provides that 'no person … shall be compelled in any criminal case to be a witness against himself' -- is violated if a court receives in a criminal case evidence that is the fruit of statements coerced from the defendant, at least where the relationship between the coerced statements and the evidence is as close as it is here."
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