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Kaplan’s Decision Not Just about Coercion of Ghailani, but Also of Abebe

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.

Key Prosecution Witness Excluded Over Torture In New York Terror Trial

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 Read more

You Have a Right to Speedy Trial … Unless They Need to Torture You First

As we’ve discussed some in comments, Judge Lewis Kaplan rejected Ahmed Khalfan Ghailani’s challenge to his trial for the African embassy bombings on speedy trial grounds. Kaplan rejected Ghailani’s argument that, since the government had held him for five years before charging him, he had been denied the right to a speedy trial. Mostly, Kaplan ruled that, since the government got no advantage from waiting, the delay did not infringe on Ghailani’s rights.

This has been read to suggest that civilian judges would reject a similar challenge on the part of Khalid Sheikh Mohammed, meaning one possible barrier to a civilian trial for him, too, has been eliminated. That’s probably true. But it bears note that Kaplan did find government excuses for some of the delays in charging Ghailani unpersuasive.

In sum, the only reason for the delay of this prosecution during the period September 2006 through late February or early March 2007 was the fact that the executive branch decided to hold Ghailani at Guantanamo and not to proceed with the prosecution. The government’s justification for the roughtly one-year delay from February or March 2007 until March 28, 2008 is weak. The time during which the military commission proceedings were pending, March 28, 2008 until January 2009, also weighs against the government because the government and not the defendant was responsible for it. The same is true with respect to the interval from the suspension of the military commission prosecution in January 2009 until Ghailani eventually was produced in this Court.

Now, I think the argument that Kaplan used here will still largely hold sway. But some future judge may well look more skeptically on the current delay in charging KSM. After all, this delay — to let the political winds blow over until such time as KSM can be charged in a civilian court (if that’s what is happening) — is something the government is doing to gain advantages over KSM. Eric Holder has explained unambiguously that one reason he thinks we stand a better chance of trying KSM in civilian courts is to be able to impose the death penalty, and there’s actually a greater risk that KSM’s torture might lead a military commission to compensate for the treatment. The Attorney General, that is, has repeatedly said he wants to try KSM in civilian court because it holds certain advantages over military commissions for the government; and the only possible way to move forward in civlian courts is to wait until either Rahm and Lindsey say it’s okay or until the election passes. I don’t think it’ll happen, but there is an argument to be made that the current delay in charging KSM is designed to gain an advantage and therefore could be judged to violate his right to a speedy trial.

But that’s not what I find most interesting about this ruling. It’s the way Kaplan decides that the two years Ghailani was held — and, Ghailani says, abused — at a black site didn’t violate his right to a speedy trial. Here’s the argument:

The CIA interrogated Ghailani for the first two years in the reasonable belief that Ghailani had important intelligence information. While some of the methods it widely is thought to have used have been questioned and, to whatever extent they actually were used, might give rise to civil claims or even criminal charges, 139 no one denies that the agency’s purpose was to protect the United States from attack.

“It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” While the Speedy Trial Clause conceivably might have been violated if a prosecution were delayed for the purpose of extended use of appalling or unlawful methods of interrogation even for important national security reasons, that is not the case. There was no prolonged delay here for any such purpose. The two year delay attributable to the CIA interrogation served a valid purpose. The balance of considerations with respect to that period, especially in the light of the lack of substantial prejudice to Ghailani’s Speedy Trial Clause-protected interests, tips heavily in favor of the government.

139 But see Detainee Treatment Act of 2005, 42 USC 2000dd-1(a) (establishing qualified defense for government personnel charged with offenses or liability in connection with officially authorized operational practices “that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States”).

This is a lovely example of the muddlespeak one has to resort to to make an argument that is not entirely persuasive. “While some of the methods it widely is thought to have used have been questioned”? That construction is all the more ridiculous given that a few of the documents Kaplan cites on torture–like the Bradbury CAT memo, the CIA’s Combined Techniques document, and a version of the OMS guidelines are publicly available. And how does Kaplan decide that Ghailani’s trial hasn’t been delayed just for torture? Because John McCain subsequently declared it retroactively legal?

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Judge Rules Torture Doesn’t Violate Due Process

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.

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