The Corner

McCarthy Called it; Judge Bars Key Witness in Civilian Terror Trial

The New York Times reports that a crucial witness in the trial of confessed embassy bomber Ahmed Khalfan Ghailani has been barred from testifying, minutes before the trial was set to start this morning, because the witness was first identified during an overseas C.I.A. interrogation of Ghailani.

Ghailani is being tried in connection with the al-Qaeda sponsored 1998 bombings of U.S. embassies in Kenya and Tanzania, which left 224 dead.

Prosecutors say the witness, Hussein Abebe, sold Mr. Ghailani the TNT that was used to blow up the Embassy in Dar es Salaam. They say Mr. Abebe agreed voluntarily to testify against Mr. Ghailani, and that his decision to cooperate was only remotely linked with the interrogation.

But in a three-page ruling, Judge Kaplan wrote 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.”

The judge said that he would issue a fuller opinion later.

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

The start of the trial has been delayed until next Tuesday in order to give the government time “to adjust its strategy” or appeal.

In a remarkable — if unfortunate — bit of prescience, Andy McCarthy’s column today is on this very topic. Andy argues that the case of Ghailani, a hero of jihadists everywhere, is being transformed from a “slam dunk” to a “horse race” by the Obama administration’s placing of politics ahead of national security:

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.

The jury won’t be hearing about Ghailani’s confession. It has been reported that, because he was a highly sought and highly placed al-Qaeda operative, Ghailani was subjected to harsh interrogation tactics by the CIA after being captured in Pakistan in 2004. To be sure, no jury should be permitted to hear a coerced confession. That is not because an alien terrorist held outside the U.S. in wartime has Fifth Amendment rights; it is because a proceeding in which a person is forced to be a witness against himself does not meet rudimentary standards of justice. Nevertheless, we are not referring here to what Ghailani may have told the CIA under duress; we are talking about the confession he gave the FBI three years later. The FBI does not use the CIA’s controversial tactics.

You should, of course, read the whole thing.

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