NYT: Dispute Over Witness in Embassy Bombing Case
- THE NEW YORK TIMES
September 2, 2010
Dispute Over Witness in Embassy Bombing Case
By BENJAMIN WEISER
With the trial of a terrorism suspect held for nearly five years in the C.I.A.âs âblack sitesâ and later in the military prison at GuantÃ¡namo Bay, Cuba, only weeks away, a dispute has arisen over the role of a key government witness.
The dispute has played out largely in secret, with much about the witness classified. But in heavily censored briefs, lawyers for the suspect, Ahmed Khalfan Ghailani, have argued that the witness should not be allowed to testify, and a federal judge in Manhattan has scheduled a hearing in two weeks on the matter.
The government learned of the witness from Mr. Ghailani while he was in C.I.A. custody, documents show. Mr. Ghailaniâs lawyers argue that any statements their client made while in C.I.A. custody were a result of coercion, and are not admissible.
The government has acknowledged that Mr. Ghailani, who is charged with plotting with Al Qaeda in the 1998 bombings of two American embassies in East Africa that killed 224 people, provided valuable intelligence about Al Qaeda and terrorist plots while in C.I.A. custody.
Federal prosecutors say they do not intend to use Mr. Ghailaniâs statements against him at his trial. But they argue that the testimony of the witness, who they say has volunteered to travel to the United States and testify, is a different matter.
The judge, Lewis A. Kaplan of Federal District Court, said he would hold a hearing at which the C.I.A. and the F.B.I. as well as the witness himself could testify.
The judgeâs 36-page ruling was heavily censored and does not include the witnessâs name or details of why he is considered important to the case.
But brief references in declassified papers say he is a Tanzanian named Hussein who sold Mr. Ghailani hundreds of pounds of TNT that was later used to blow up the United States Embassy in Tanzania, one of the two embassy attacks.
Judge Kaplan, in his ruling, which was made public Wednesday, said that it was ânot clearâ the witness âtruly would be the volunteer that the government claimsâ or that âunlawfully obtained evidence did not play a roleâ in securing his cooperation.
Mr. Ghailaniâs case has long been seen as raising important legal issues that could recur if the Obama administration decides to try Khalid Shaikh Mohammed, the professed planner of the 9/11 attacks, or other detainees in a civilian court.
Judge Kaplan has already rejected arguments that Mr. Ghailaniâs case should be dismissed because his constitutional right to a speedy trial was violated and because of his treatment while in C.I.A. custody.
Even if statements from former detainees are ruled inadmissible in court, the testimony of witnesses learned about during interrogations could be powerful prosecution evidence if allowed by a judge.
Joshua L. Dratel, a lawyer who has represented terrorism suspects, said, âThere has always been concern about the product of these interrogations, not only in the admissibility of what the defendant said but also what the government did with the information.â
Daniel C. Richman, a Columbia law professor and former federal prosecutor, said the Ghailani ruling could âoffer the prosecution a road mapâ to prevail if it can show the defendantâs statements were only remotely linked to the witnessâs decision to testify.
In his decision this week, Judge Kaplan made it clear that he wanted to explore further whether the witnessâs decision to testify was truly voluntary.
Federal prosecutors said in a legal filing that the witnessâs appearance âwould be entirely voluntarily.â They said he told the F.B.I. on various occasions since 2006 that he was willing to come to the United States to testify. But the judge noted that the witness was originally arrested by Tanzania, flown to a distant location, held there for days and questioned by the Tanzanian police before the F.B.I. questioned him.
âThe record discloses nothing about what happened while he was in Tanzanian custody,â Judge Kaplan said, âand it is sketchy even about what took place after the F.B.I. arrived.â The judge said that it was known only that the witness âwas released after he was questioned by the F.B.I. and promised to appear as a witness in this case.â
Mr. Ghailani has said he was sent to the witness because the witnessâs family had a mining business in Tanzania, with access to explosives, documents show. Mr. Ghailani said he was originally told by other operatives that he would be buying horse soap, but the witness told him it was TNT. Mr. Ghailani said he made 7 to 10 trips to buy TNT over about a year.
In a review panel at GuantÃ¡namo in 2007, Mr. Ghailani admitted helping the plotters, but apologized and said he had been kept in the dark about their plans.