The judge in the trial of accused terrorist Ahmed Ghailani has released a formal opinion that explains his earlier decision to disallow a key witness against the defendant. The trial opened this week at the U.S. Federal Court in New York City. Ghailani is being tried for conspiring to bomb the U.S. embassy in his native Tanzania in 1998.
Judge Lewis Kaplan says the government may not use information gathered through coercion of a detainee to prosecute that individual for a criminal offense. Kaplan's decision excludes testimony of Hussein Abebe, a Tanzanian miner who was expected to tell the court that he supplied Ghailani with explosives used in the Dar es Salaam attack. The judge determined the Abebe was located as a direct result of statements made by Ghailani to the CIA under duress.
Ghailani's attorney, Peter Quijano, welcomed the ruling. "We could not agree more with the court. This case will be tried upon lawful evidence, not torture, not coercion," he said.
Judge Kaplan says that evidence or information derived from evidence obtained through coercion is excluded.
Michael Waddington, a U.S. military defense attorney, explains the American legal doctrine upon which the decision is based. "It's the 'fruits of the poisonous tree doctrine,' meaning that anything that comes out of that defendant's mouth -- if it's obtained in violation of the Fifth Amendment -- all of that evidence that is derived from the original tainted confession or statement generally gets suppressed," he said.
The Fifth Amendment to the U.S. Constitution states no one shall be compelled in any criminal case to be a witness against him or herself.
The Ghailani trial is being closely watched because it is the first in which a suspect held at the U.S. military detention center at Guantanamo Bay, Cuba will be tried in an American civilian court. The government says it will not appeal Judge Kaplan's ruling, which means that evidence obtained illegally from other Guantanamo detainees will also be excluded in their U.S. civilian trials.
Ben Wizner, a lawyer with the American Civil Liberties Union, says the Fifth Amendment routinely applies to foreigners tried in U.S. courts because it refers to persons, not citizens. "Once someone is brought here and we're going to punish him under our legal system, the fact that we are going to punish him means he is entitled to the same rights against unjust or unfair prosecution," he said.
Judge Kaplan notes in his opinion that because of Ghailani's status as an enemy combatant, he may be detained, even if he is found not guilty, in a status akin to a prisoner of war until the end of hostilities between the United States, al-Qaida and the Taliban.
But attorney Ben Wizner says this conflicts with another aspect of the Fifth Amendment, which says that no one may be deprived of liberty without due process of law. "If a jury determines that we don't have enough evidence to convict him of that crime, it would be unjust, and in my view, unconstitutional, to continue to hold him as a military detainee under some other system of law," he said.
There currently is no answer to the legal dilemma posed by the possibility of detaining a person found innocent by a jury.
Attorney Michael Waddington says the solution would have been trying Ghailani and other Guantanamo suspects in a military court. "We should have tried these folks five years ago or six years ago, just like we did the Japanese and the Nazis that were accused of war crimes, and try them in military tribunals or court martial them," he said.
Although Ghailani is the first Guantanamo detainee to be tried in a federal court, he is not the first terror suspect to face the U.S. civilian justice system.
Ben Wizner notes that that system not only protects defendant rights, but also gives prosecutors the tools they need to get convictions. "It may be that Ghailani prosecutors lost one witness, but that trial began. And, in fact, Ghailani's alleged co-conspirators were all convicted without that witness. Mr. Ghailani was indicted before the government even new about that witness," he said.
Attorney Michael Waddington says the rules of evidence are less stringent in a military tribunal, but that does not preclude appeals. And Ben Wizner notes that U.S. federal civilian courts not only have a higher conviction rate in terror cases than military tribunals, but they also hand out harsher sentences.