As I suggested the other day, the news that Majid Khan has negotiated a plea deal raises interesting questions about why the government decided to offer him one.
What I haven’t seen anyone explain, however, is why the government has suddenly offered Khan a plea deal. It suggests they either can’t build a case against him themselves–a possibility given that they’re charging him for an assassination attempt that apparently involved no bomb–or that they’ve decided they don’t have enough untainted evidence against Khalid Sheikh Mohammed and the other 9/11 plotters without someone like Khan testifying. It further suggests they don’t want to rely on Khan’s own testimony given in custody, probably because that, too, is tainted.
That seems to be what has happened. As Jason Leopold reported last week, Gitmo’s prosecutors are, indeed, newly negotiating plea deals with detainees as a way to get untainted evidence.
There are still 171 detainees imprisoned at Guantanamo. More than half have already been cleared for release. Thirty-six are expected to face war crimes charges and the remainder were deemed by an Obama administration task force as being too dangerous to release or too difficult to prosecute because the evidence against them was obtained through torture.
Martins, who became chief prosecutor in October, has informed his staff, according to another email written by the same military prosecutor, that he is interested in obtaining information about detainees he intends to prosecute that will help the government secure convictions. The detainees who cooperate with the prosecution and show a willingness to testify against other prisoners, in a manner that “pleases” the government, would receive plea deals for the terrorist-related crimes they are accused of and could eventually be repatriated to another country.
“Proffer” sessions have already taken place between some defense attorneys and detainees, where the prisoners have discussed what evidence they can offer the prosecution for use in war crimes trials, the prosecutor’s email says.
Leopold goes on to describe Khan’s plea deal in this context (though none of his lawyers have confirmed this is what’s going on).
Predictably, Cheney’s chief torture apologist, Marc Thiessen, is outraged that Gitmo prosecutors are trying to undo the damage that Cheney’s torture program did.
The United States has reportedly offered a plea deal to Majid Khan — a hardened al-Qaeda terrorist and close associate of Khalid Sheikh Mohammed — that could see him released from Guantanamo Bay within a few years.
Giving this killer a reduced sentence is outrageous. Khan is no run-of-the-mill terrorist. He was directly subordinate to KSM and was selected by the 9/11 mastermind to conduct terrorist operations inside the United States.
He had been charged with war crimes, including murder, attempted murder, spying and providing material support for terrorism — all of which could have earned him a life sentence. Instead, he might now be released.
For what? Under the reported deal, Khan has agreed to testify against his fellow terrorists during the next four years at Guantanamo, after which he would then be eligible to be transferred to Pakistan. Khan knows a great deal about KSM and the core 9/11 conspirators — but it is hard to believe that his cooperation and testimony are really necessary to convict those terrorists. Continue reading
The usual suspects are out wailing that Judge Lewis Kaplan’s order, excluding the testimony of Hussein Abebe from Ahmed Ghailani’s trial, proves civilian courts don’t work for terrorism. Glenn rounds up more of the whiners and notes that you really can’t complain about Kaplan’s decision and still claim to believe in rule of law.
I wanted to add just one detail to the discussion bmaz offered yesterday (and thanks to him and Mary for watching the likker cabinet while I was away).
Kaplan rejected Abebe’s testimony not just because of the CIA’s coercion of Ghailani, but also because of possible coercion of Abebe himself.
Mary noted Kaplan’s suggestion that the witnesses put forth by the government either did not include all the witnesses who should have testified that Abebe would testify voluntarily, or weren’t themselves credible. Here’s what Kaplan said:
On the basis of that record – including importantly its assessment of the credibility of the only witnesses called to testify who actually were present when Abebe was persuaded to confess his role, to implicate Ghailani, and to cooperate with authorities – it now finds and concludes 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.
And here’s what Mary wrote about it:
It makes it sound as if the issue isn’t just how attentuated the evidence from the coercion, but also how credible the witnesses. The “only witnesses called to testify who were actually present” – for some reason this makes me wonder if the court was aware that there were clearly other witnesses present when Abebe was being “persuaded” and they were purposefully not being provided to testify? And it makes you wonder about the persuasion. Being persuaded and being questioned have some different feel to the underlying words.
Kaplan’s earlier order dismissing the government’s other justifications for calling Abebe as a witness indicates the source of his skepticism–at least as it was before later hearings on the question [note, the earlier filing redacted Abebe's name, though I've put it in where it contextually must be the redacted word].
It is entirely possible that [Abebe] if he were to appear, would be a willing witness. But the burden of proof on the attenuation claim [in which the government relies on Abebe's willingness to testify to claim it had little to do with Ghailani's coerced testimony] is on the government. It has submitted no affidavit from [Abebe]. Moreover, there is evidence that arguably undermines the government’s claim. The circumstances of [Abebe's] initial questioning, at least to the extent that the Court has been made aware of them, perhaps suggest that he is not simply a public spirited citizen who “has come forward [to] offer evidence entirely of [his] own volition.” He was arrested by Tanzania, flew to a distant location, held there for days, and questioned by Tanzanian police before the FBI questioned him. Indeed, he told the Tanzanian authorities at the time of his arrest “that he knew this day would come–that he had been waiting eight years for the authorities to locate him.” The record discloses nothing about what happened while he was in Tanzanian custody, and it is sketchy even about what took place after the FBI arrived. We know only that [Abebe] was released after he was questioned by the FBI and promised to appear as a witness in this case.
The suggestion, of course, is that Abebe may have himself been subject to physical coercion, and at the very least he was only freed after agreeing to testify in Ghailani’s trial, which doesn’t make him a very voluntary witness. Kaplan’s references to the credibility (or not) of the witnesses who testified as well as his suggestion that not everyone involved in Abebe’s interrogation did testify probably suggest he suspects that those other law enforcement officers involved (I’m guessing there has to be at least one Tanzanian official and one US official who didn’t testify) would not be able to testify that Abebe’s testimony was voluntary.
Mind you, for the usual suspects, piling coercion on top of coercion doesn’t much make a difference. And it seems that the government has at least one other witness who knew (perhaps identified through Ghailani’s torture) that a Hussein–who appears to be Abebe–was involved in the plot.
But it sure seems that the problem is not just that they tortured Ghailani and now want to use his testimony under torture to help convict him, but that they may have continued to coerce witnesses–in unknown ways–to get a conviction for Ghailani.
Last Friday, I reminded the clueless media, and thus mostly uninformed public, there was a critical terror trial going on right in their midst in New York City, and doing so quietly and competently as was claimed was impossible by howlers such as Liz and Dick Cheney, Guiliani, Lindsey Graham and the right wing noise machine. The case is US v. Ahmed Khalfan Ghailani, and as I explained, although jury selection was well under way, there was a brief delay imposed by the trial judge, SDNY Judge Lewis Kaplan, until today so he could contemplate a motion to exclude a critical prosecution witness argued by the defense on the grounds the putative testimony was the product of torture and coercion.
The decision by Judge Kaplan was just issued and, in somewhat of a shock, he has ordered the witness, Hussein Abebe, excluded. From Bloomberg News:
A judge barred the U.S. from calling as a witness a Tanzanian miner who admits supplying explosives to Ahmed Ghailani, an alleged al-Qaeda terrorist charged with the 1998 bombing of the U.S. embassies in Africa.
U.S. District Judge Lewis Kaplan, in New York, denied a request by federal prosecutors to allow Hussein Abebe to testify that he sold five crates of dynamite to Ghailani before the blast. Abebe, whom prosecutors called a “giant” witness in their case, would provide a first-hand account of Ghailani’s role in the attacks, the government said.
Kaplan ruled that Abebe’s testimony is too closely tied to coerced statements made by Ghailani while he was in CIA custody and must be excluded from the trial. The ruling, made public today, will delay the trial’s start until Oct. 12 to give the government time to decide whether to appeal.
“The court has not reached this conclusion lightly,” Kaplan wrote. “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 in a different direction.”
This is a critical ruling and, while it should not be this way, a refreshingly positive one for the health and sanctity of the Constitution and federal Article III courts. Hats off to Judge Kaplan, for while the legal basis seems quite clear on its face, the blowback pressure from the government and boogity boogity terrorism howlers described above (not to mention the Old Gluehorse McCain) will be intense. Here is the critical language from Kaplan’s order:
Abebe was identified and located as a close and direct result of statements made by Ghailani while he was held by the CIA. The government has Continue reading
I am going to make this shorter than I originally planned on when I started it earlier today, because I have some Trash to take out. But, as Bob Schacht pointed out, not that anybody would know it, but there has been a terror trial going on all week in a real live Article III courtroom in the heart of Manhattan. Exactly like all the Republicans with vapors and trembling Democrats said could not be safely done.
Jury selection started Wednesday September 29th and today the trial in chief, expected to start Monday, was tentatively postponed until next Wednesday pending determination of admissibility of evidence and testimony from an important prosecution witness, Hussein Abebe. From Bloomberg:
The federal judge presiding over the trial of Ahmed Khalfan Ghailani, a Tanzanian charged with taking part in the bombing of two American embassies in Africa, delayed the case by two days until Oct. 6.
U.S. District Judge Lewis Kaplan in New York today granted a prosecution request to postpone the trial, for which jury selection started Sept. 29. Kaplan said he may grant a delay if he rules a key prosecution witness, Hussein Abebe, can’t testify. The adjournment would give the government time to appeal that ruling before the trial.
Prosecutors want to call Abebe, 46, a Tanzanian who is former miner, to testify that he sold five crates of dynamite to Ghailani before the blast. He would provide a first-hand account of Ghailani’s role in the attacks, the government says.
Abebe, who hasn’t been charged, is a “giant” witness, according to prosecutors. The judge said earlier he may not decide until after opening arguments whether the jury should hear Abebe’s testimony.
Ghailani’s lawyers argue that Abebe’s testimony should be excluded because the government learned of his involvement through a coercive interrogation of Ghailani by the CIA. Abebe also was coerced into cooperating with authorities, according to the defense attorneys, led by Peter Quijano and Steve Zissou.
Motions in limine and other evidentiary motions are always at issue in big criminal trials and brief delays and provision for interlocutory appeals are certainly common. So, what you see here is another criminal trial. Ho hum and yawn. Certainly not the unholy hell Baby Dick Cheney, Rudy 9/11 and the other cowering fearmongers predicted is it? The attached video from Human Rights First sums it up perfectly. Here is Human Rights First’s press release on the issue:
Despite repeated warnings that trying Guantanamo detainees in New York would result in chaos, mayhem, kidnappings, astronomical security costs, a police take-over of Lower Manhattan, snarled traffic, street closures, and “utter, unmitigated disaster,” New Yorkers interviewed by Human Rights First are going about their daily business within blocks of the federal terrorism trial of a former Guantanamo detainee.
In an exclusive video released today, the group reveals that many New Yorkers are not only failing to fear, they do not even realize that accused terrorist Ahmed Khalfan Ghailani’s trial is underway. Some, despite the urgent warnings from those trying to “Keep America Safe,” even expressed pride that the prosecution was happening in New York City.
“We have trials like that here all of the time,” one woman observed as Human Rights First correspondent Reagan Kuhn interviewed her near the federal courthouse in Foley Square.
Despite the best efforts of Liz Cheney, Deborah Burlingame, Rudy Guiliani, and Karl Rove to spread panic, many naïve New Yorkers seemed completely uninformed about the chaos that was supposed to reign. Some even observed that “everything seems pretty normal,” “I haven’t noticed anything,” and “I’m sure everybody knows what they are doing.”
As the Ghailani trial proceeds this week and in the weeks ahead, Human Rights First will continue to monitor New Yorkers’ failure to fear federal prosecution of this case. It will also continue to send representatives to Guantanamo Bay, Cuba, where military commission proceedings are set to commence next month. For those keeping score, U.S. federal courts have convicted more than 400 terrorists. Military commissions have secured only four convictions.
They have been holding terrorism trials of the highest order for years in New York City. SDNY is where the Blind Sheik Omar Abdel-Rahman was tried for the first World Trade Center Attack. There is not a better secured and more appropriate place in america to try the 9/11 terrorism suspects. That is what we do in America, and what we do as Americans. Giving in to the fear and bed wetting of the Cheneys, Rudy Guiliani, Lindsey Graham, Lieberman and others of their ilk is giving up on our principles and giving in to the terrorists themselves. Besides, NYC is always a target of terrorists and would be even if Khalid Sheikh Mohammed and the other four 9/11 suspects were tried in Gitmo.
Put the trials where the crimes happened and deal with it.
In a ruling that anticipates how the government will ignore torture as it tries alleged detainees in civilian court, Judge Lewis Kaplan rejected Ahmed Khalfan Ghailani’s efforts to get his indictment for contributing to the 1998 embassy bombings dismissed because he was tortured while in US custody.
As Kaplan argues, Ghailani could only use the Due Process Clause to dismiss evidence collected as a result of his torture.
The Due Process Clause, so far as is relevant here, protects against deprivations of liberty absent due process of law. The deprivation of liberty that Ghailani claims may occur if this case goes forward is his imprisonment in the event of conviction. In seeking dismissal of the indictment, however, he does not deny that he is being afforded every protection guaranteed to all in the defense of criminal prosecutions. Rather, Ghailani in effect argues that the case should be dismissed to punish the government for its mistreatment of him before he was presented in this Court to face the pending indictment.
For a due process violation to result in consequences adverse to the government in a criminal case – for example, the suppression of evidence or the dismissal of an indictment – there must be a causal connection between the violation and the deprivation of the defendant’s life or liberty threatened by the prosecution. That is to say, relief against the government in a criminal case is appropriate if, and only if, a conviction otherwise would be a product of the government misconduct that violated the Due Process Clause. For only in such circumstances may it be said that the deprivation of life or liberty that follows from a criminal conviction flows from the denial of due process. This conclusion thus rests directly on the text of the Due Process Clause itself.
But since the government is trying Ghailani for his involvement in the 1998 bombings, rather than for any actions about which they asked him under torture, the alleged torture is irrelevant to this indictment (remember, Ghailani was picked up in 2004 in the pre-election scare about terror). So long as the government relies only on evidence untainted by the torture, Kaplan argues, then it is irrelevant to this trial.
Of course, the government did hedge, somewhat, about whether they were going to rely exclusively on untainted evidence.
The government has identified one possible exception: a percipient witness whose identity remains classified and whose testimony may constitute fruit derived from statements made by the defendant in response to interrogations while in CIA custody. The government maintains that there is no basis for suppressing this potential witness’s testimony, and the issue is sub judice before this Court.
But that’s not enough to get this indictment dismissed.
Ahmed Ghailani’s lawyers have moved to have his indictment dismissed because he was denied a speedy trial. As a reminder, Ghailani is being tried for his involvement in the African embassy bombings, under an indictment first filed in 1998. His lawyers are arguing that the government held and interrogated Ghailani for 57 months (with two years in a Black Site) before they moved to try him on that indictment that was pending during that entire period of detention.
At the end of the day, certain things appear to be irrefutable: (1) the delay was caused by deliberate Government action which would knowingly deprive Mr. Ghailani of his right to a Speedy Trial; (2) the reason to cause this delay was the Government’s desire to interrogate Mr. Ghailani extensively about matters that involved the same entity and co-conspirators that were part of the charged indictment; and (3) by being able to interrogate Mr. Ghailani for as long as they did and in the manner and under the conditions that they did, the Government obtained the information it sought, without having to enter into a voluntary and binding plea agreement that could have allowed the Government to obtain the same information that the Government sought but after he was arraigned and provided counsel in the Southern District of New York.
In short, and in the interests of national security, the Government got what it desired, when it desired, but at the expense of denying Mr. Ghailani his Constitutional right to a Speedy Trial on the pending Indictment.
Now, the motion is going to be unique among potential Article III defendants, since no other detainees are known to have pending indictments in an Article III court. But it will be an early read on whether and how abuse will be introduced into these cases. There are extensive pages describing Ghailani’s treatment–all of which have been redacted in the public filing. The motion notes in footnote 5 that,
We also note that due to the limitations of the Classified Information Protective Order, dated, July 21, 2009, issued in this case, the defense has been unable to directly discuss the information contained in these summaries with Mr. Ghailani and are required to rely instead upon the Government’s summaries of what occurred.
This seems to suggest that the lawyers themselves are only getting summaries of the treatment Ghailani underwent, but they are then limited to substitutions for those summaries themselves (though I will try to clarify this). To provide a public description of what might have happened to Ghailani, then, his lawyers had a civilian defense counsel from the Office of Military Commissions submit a declaration about the known details of the interrogation program to lay out the kinds of treatment Ghailani might be subject to. (Note, she focuses on the August and September 2004 approvals signed by Dan Levin, at least one of which almost certainly pertains to Ghailani personally).
So Ghailani has–through this Speedy Trial challenge–introduced evidence about his torture. But it’s behind three different screens of redaction to prevent Americans from knowing how he was treated.