Setback in civilian trial of Gitmo detainee
Judge bars star witness from testifying
Dear Harold,
It is, and has been, the position of ACT! for America that defining, treating and trying “enemy combatants” as “criminals” in civilian courts is unwise, foolhardy, a sop to political correctness, and lacking in historical precedent.
Last week, in the first criminal trial of a Guantanamo Bay detainee, the judge barred the government’s star witness from testifying. (See story below.)
This is the kind of judicial ruling legal experts were warning would happen if enemy combatants were given access to our civilian criminal court system.
Here is what we find particularly appalling about trying these enemy combatants in our civilian courts.
These are people who target civilians, do not wear uniforms, and are not part of any country’s army.
Yet they are receiving more rights than a uniformed enemy combatant would receive under the rules
f the Geneva Convention.
So the message the Obama Justice Department is sending to potential terrorists around the world is clear—
don’t wear a uniform, target civilians, and you’ll end up with more due process rights than a German POW
received during World War II.
US judge bars star government witness in terror trial
http://news.yahoo.com/s/afp/20101007/ts_alt_afp/usattackstanzaniaguantanamotrialghailani
by Sebastian Smith – Wed Oct 6, 9:55 pm ET
NEW YORK (AFP) – A judge barred the star prosecution witness from testifying in the first civilian trial of an
ex-Guantanamo inmate, in a blow to US President Barack Obama's plans to bring terror suspects to justice.
The dramatic decision by Judge Lewis Kaplan forced a week's delay in the trial of Ahmed Khalfan Ghailani,
who is accused of a key role in the bombings of two US embassies in Africa in 1998 that killed 224 people.
The barred witness, Hussein Abebe, was to testify that he sold Ghailani explosives before the deadly, nearly simultaneous bombings against the US embassies in Kenya and Tanzania.
Prosecutors had called him a "giant" piece in the case against Ghailani, a Tanzanian, who allegedly also served as a close
aide to Al-Qaeda founder Osama bin Laden, before being captured in Pakistan in 2004, imprisoned by the CIA, and sent to
the US military prison in Guantanamo Bay, Cuba.
But Kaplan said he was excluding Abebe because his "testimony would be the product of statements made by Ghailani
to the CIA under duress."
Abebe was located by the US authorities as a "direct result of statements made by Ghailani while he was held by the
CIA," Kaplan added.
Kaplan said jury selection, followed by opening statements in the trial, was suspended until October 12, giving prosecutors
time to appeal. Opening statements had originally been scheduled for Monday but were delayed by two days while Kaplan deliberated on the witness issue.
His ruling went to the root of controversy over how to try terrorism suspects who have undergone what the government
calls "enhanced interrogation" and human rights organization say is torture.
Ghailani's lawyers had previously cited mistreatment by the CIA and lengthy imprisonment without trial as causes to have
the charges thrown out. Kaplan rejected that argument.
US Attorney General Eric Holder later told reporters he did not think "there's any reason to doubt" the court could handle
Ghailani's trial.
"There have been over 300 successful prosecutions of people who were involved in terrorist activities... They have been successfully prosecuted," he told a news conference, noting the life sentence given Tuesday to a man accused of trying to
plant a bomb in New York's Times Square.
Asked whether the US government could return Ghailani to "enemy combat status" and continue holding him without
bringing the case to court, Holder said: "We intend to proceed with this trial."
Wednesday's ruling was more narrow, challenging evidence that emerged as a result of coercion during Ghailani's CIA
custody.
The prosecution could only use Abebe as a witness if it could prove that the connection between "Ghailani's coerced
statements and Abebe's testimony is sufficiently remote."
"The court has not reached this conclusion lightly," Kaplan wrote in his ruling.
"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 only when it is convenient, but when fear and danger beckon."
A lawyer for Ghailani, who attended the hearing dressed in grey V-neck sweater and tie, welcomed the ruling as "a great
victory" for the US constitution.
However, the judge emphasized in his ruling that "even if he was found not guilty in this case," Ghailani would possibly be detained for life as an "enemy combatant."
That "probably would permit his detention as something akin to a prisoner of war until hostilities between the United States
and Al-Qaeda and the Taliban end."
Ghailani is the sole inmate of the notorious Guantanamo facility to have been so far transferred into the US civilian justice
system.
Obama's administration wants eventually to try all Guantanamo inmates in regular courts and to close the secretive military
prison.
Ghailani's trial is being seen as a test case for even more high-profile prosecutions, including against the five alleged
ring-leaders of the September 11, 2001 terrorist attacks.
Opponents of Obama's plans believe terror suspects should be denied US legal rights.
David Rivkin, a former prosecutor under the Republican governments of Ronald Reagan and George H.W. Bush, said the
witness exclusion was just a hiccup for the prosecution in the Ghailani case.
"Evidence being excluded doesn't mean that whatever remains is insufficient for the judge to proceed," he said.
"The notion that just some evidentiary defeats for the government would set the person free is not really the case."
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Monday, 11 October 2010
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