Judge concluded that there was insufficient evidence to determine whether the prosecution’s first three factors can be resolved
The ongoing pretrial proceedings in case against Ahmed Khalfan Ghailani, the former Osama bin Laden bodyguard who also allegedly participated in the bombings of two U.S. embassies in East Africa, is widely viewed as a test case for the future federal prosecutions of other so-called “enemy combatants.”
Ghailani, who was captured in Pakistan in 2004, remains the first and only Guantánamo Bay detainee to be transferred to an Article III court. He is accused of, among other things, purchasing the explosives used in the August 1998 attacks on the U.S. embassies in Tanzania and Kenya. The 286-count indictment against him includes more than 200 counts of murder.
Although the Obama administration announced in 2009 that it intended to try Sept. 11 organizer Sheik Khaled Mohammed and several other enemy combatants in New York, the administration has yet to make a final decision. In the meantime, each ruling in the Ghailani case shines more light on the pros and cons of trying their cases in civilian courts.
In May, the judge presiding over the case, U.S. District Court of the Southern District of New York Judge Lewis A. Kaplan, ruled that the CIA’s alleged torture of Ghailani does not justify dismissing the charges against him (NYLJ, May 11).
In July, the judge ruled that Ghailani’s speedy trial rights had not been violated by the five-year delay in bringing him to trial (NYLJ, July 13).
And yesterday, Kaplan issued a 36-page decision, United States v. Ghailani, S1098 Crim.1023, addressing whether the government may call as a witness a man whose identity was revealed by Ghailani when he was subjected to “extremely harsh interrogation methods” by the CIA.
Both the methods of coercion and the specific statements made by Ghailani during interrogation were blacked out of the judge’s decision.
Ghailani moved to suppress the statements that led to the discovery of the witness in April. Although the identity of the witness has not been released, court papers suggest he would testify regarding Ghailani’s purchase of “hundreds of pounds of explosives.”
In his motion to suppress, Ghailani argued that all of his custodial statements were coerced and obtained in violation of his constitutional right to counsel. The witness’ testimony should therefore constitute inadmissible “fruit of the poisonous tree”– evidence derived from illegally obtained statements.
“Like a bad movie played over and over, while the government consistently attempts to distance themselves from the conduct of other agencies of the same government, it is startling how often the choices made by their brother agencies have assisted the local U.S. Attorney’s Office in this case,” Ghailani’s attorneys wrote in a letter in support of the motion.
In opposition, prosecutors from the Southern District U.S. Attorney’s Office set forth three arguments in support of the notion that the “taint” of the coerced statements had “dissipated.”
First, the prosecution contended that the government would have inevitably obtained the witness by independent, lawful means.
The government also argued that the case falls outside of the “core application” of the fruit-of-the-tree doctrine.
Finally, the prosecution contended that the witness’ trial testimony would be sufficiently “attenuated” from the alleged illegality.
Kaplan rejected the prosecution’s first two arguments and ordered a hearing to address the third.
On the government’s first point, the judge concluded that the independent identification of the witness was far from inevitable.
“This court cannot exclude the possibility that the government would have found [redacted] on the basis of [redacted] statements alone,” the judge wrote. “But it would have been roughly comparable to finding a particular individual named John or Bill in a state with a population around the size of Maine or New Hampshire.”
Kaplan also rejected the “core application” argument. The core application doctrine holds that when the use of the exclusionary rule does not result in “appreciable deterrence” against future Fourth Amendment violations, the application of the rule is unwarranted. In the present case, the judge concluded, “the constitutional footings of the prohibition on the use of coerced confessions and statements are important,” and the doctrine therefore did not apply.
However, the judge concluded that additional testimony was necessary to determine whether the government might be able to establish its third argument — that the witness’ trial testimony would be sufficiently “attenuated” from the government’s alleged illegal acts.
The judge applied the four-part test from United States v. Leonardi, 623 F.2d 746, for determining whether the witness’ testimony is sufficiently attenuated from the CIA’s coercion: (1) the “stated willingness of the witness to testify,” (2) “the role played by the illegally seized evidence in gaining his cooperation,” (3) “the proximity between the illegal behavior, the decision to cooperate and the actual testimony at trial” and (4) “the [government's motivation] in conducting the search.”
Kaplan concluded that in Ghailani’s case there was insufficient evidence to determine whether the first three factors can be resolved. He scheduled a hearing for Sept. 14, at which he will take testimony from, among others, “any FBI, CIA and Tanzanian witnesses the government elects to call and from [redacted] if the government wishes to produce him.”
Peter Enrique Quijano, Michael K. Bachrach and Steve Zissou represent Ghailani. Quijano declined to comment. Zissou did not return a call for comment.
Assistant U.S. Attorney Michael Farbiarz, the chief of the Southern District’s terrorism and international narcotics unit, served as lead counsel for the prosecution.
Ghailani’s trial is scheduled to begin on Sept. 27.
