Error by trial: Very first Guantanamo case in civilian court is an instant disaster

The disastrous folly of trying Al Qaeda enemy combatants in civilian court stands proven beyond a reasonable doubt in the case of the first Guantanamo detainee brought to New York to face justice.

There is abundantly conclusive proof that Ahmed Khalfan Ghailani participated in the 1998 U.S. embassy bombings in Kenya and Tanzania that killed 224 people, including 12 Americans. At least 5,000 were wounded.

He was indicted that same year while a fugitive. In 2004, the CIA caught up with Ghailani in Pakistan. By then, he had gone on to train with Al Qaeda in Afghanistan, serve as Osama Bin Laden's bodyguard and meet some of the 9/11 hijackers.

These facts come courtesy of Ghailani's own mouth. He revealed them under interrogation while in clandestine CIA custody before transfer to Guantanamo. Therein lies the legal absurdity.

The CIA grilled Ghailani in the interest of national security - to prevent further terrorist attacks - and not as a run-of-the-mill criminal suspect with full U.S. constitutional rights.

Thus, Ghailani had no lawyer. Thus, in the words of Manhattan Federal Judge Lewis Kaplan, Ghailani was subjected to a "combination of social influence approaches and extremely harsh interrogation methods to obtain evidence" - techniques that were used "to obtain intelligence from a handful of detainees believed to possess particularly high-value information."

So, years later, come time for opening statements in Kaplan's courtroom, prosecutors chose not even to try entering a word of Ghailani's testimony into evidence. Instead, they hung their case largely on one Hussein Abebe, a Tanzanian who was prepared to testify that he had sold five crates of explosives to Ghailani.

Bad move. Kaplan yesterday barred Abebe from taking the stand because the FBI tracked him down based solely on information provided by Ghailani under "coerced" questioning.

This ruling was distressingly inevitable.

The courts have long excluded evidence discovered by tainted means. The idea is to curb law enforcement abuses by refusing to admit what judges call "the fruit of a poisonous tree." Kaplan said he was compelled by law to apply the doctrine, no matter that the CIA was not gathering evidence for civilian court but protecting Americans.

Kaplan's grounds are open to debate, and one can hope an appeals panel reverses. Either way, the important point is that force-feeding Guantanamo detainees, arrested in the drive to prevent a new 9/11, through civilian courts is insane.

President Obama and Attorney General Eric Holder are bent on pursuing such madness. Hanging out there is whether they will insist on bringing the granddaddy of all terrorists, Khalid Shaikh Mohammed, for trial in New York. The Ghailani fiasco documents that they must not.

Kaplan was direct in laying out the well-founded perspective of a judge. He wrote: "The Constitution is the rock upon which our nation rests."

In other words, he was only doing his job. But it is not a job a federal judge should be assigned.



Read more: http://www.nydailynews.com/opinions/2010/10/07/2010-10-07_error_by_trial.html#ixzz11gXhzRyj