A judge's reason for excluding damning testimony against al Qaeda terrorist Ahmed Ghailani makes no sense.
The government’s case against Ahmed Ghailani, the terrorist who participated in al Qaeda’s bombings of American embassies in Kenya and Tanzania in 1998, took a major hit on Wednesday. Judge Lewis A. Kaplan ruled that the government was prohibited from introducing a key witness. Why? Because the government learned about this witness’s identity during the CIA’s so-called enhanced interrogations of Ghailani. Therefore, this evidence is supposedly tainted – or “fruit of the poisoned tree.”
The ruling, however, highlights just how inconsistent the courts’ handling of these matters can be.
There is no dispute that Ghailani provided vital intelligence during the CIA’s interrogations. A declassified CIA memo dated June 3, 2005, and entitled, “Detainee Reporting Pivotal for the War Against Al Qaeda,” notes (emphasis added):
Ahmed Khalfam Ghailani (a.k.a. Haytham al-Kini, a.k.a. Fupi) a Tanzanian al Qaeda member who was indicted for his role in 1998 East Africa US Embassy bombings, has provided new insights into al Qaeda's skills and networks. As a facilitator and one of al Qaeda's top document forgers since the 11 September attacks, with access to individuals across the organizations (sic) until his arrest in July 2004, hehas reported on how he forged passports and to whom he supplied them.
You don’t have to take the CIA’s word for it.
As Marc Thiessen and David Rivkin noted in the Wall Street Journal earlier this year, a DOJ lawyer working for the Obama administration argued in a pretrial memorandum that Ghailani was “a rare find” at the time of his capture and “his then-recent interactions with top-level al Qaeda terrorists made him a potentially rich source of information that was both urgent and crucial to our nation's war efforts.”
This same lawyer argued that the “information supplied by [Ghailani] had important real-world effects,” and Ghailani provided “crucial, real-time intelligence about senior al-Qaeda leaders and al-Qaeda plots.” The DOJ lawyer concluded: “The results of the CIA’s efforts show that the defendant’s value as an intelligence source [was] not just speculative.”
The DOJ made this argument as part of the government’s justification for detaining and questioning Ghailani as an enemy combatant instead of providing him with a criminal trial shortly after he was captured.
The court ultimately agreed with the DOJ. Thiessen noted in a National Review Onlinepiece that Judge Kaplan – the same judge who ruled against the government today – found:
Suffice it to say here that, on the record before the Court and as further explained in the Supplement, the CIA Program was effective in obtaining useful intelligence from Ghailani throughout his time in CIA custody.
Judge Kaplan continued:
The government has offered evidence that Ghailani continued to be of intelligence value throughout his time in CIA custody. Ghailani’s counsel have had access to extensive classified materials related to his interrogation, yet they have pointed to no evidence to the contrary. As discussed in the Supplement, the Court concludes that the government’s evidence is persuasive.
So, in one ruling Judge Kaplan found that the CIA’s interrogations of Ghailani were “effective in obtaining useful intelligence” and that “Ghailani continued to be of intelligence value throughout his time in CIA custody.”
But when the DOJ tried to introduce a witness whose identity was learned during these very same interrogations and debriefings, Judge Kaplan barred the government from doing so.
Putting aside the legal wrangling for a moment, we have a basic logical contradiction here. The intelligence gleaned from Ghailani’s interrogations was so valuable, in Judge Kaplan’s view, that the government was justified in detaining him as an enemy combatant without his presumed right to a speedy trial. But, according to Judge Kaplan, one part of that very same intelligence cannot be allowed into Ghailani’s trial.
That doesn’t make any sense, of course. And it gets worse.
As Andy McCarthy explains in his column, the government was not trying to rely on an admission of guilt by Ghailani that he blurted out to the CIA. Such admissions have no place in American courts. The government was trying to introduce a witness who was found out during Ghailani’s fruitful interrogations and debriefings. The government argues that this same witness – a man named Hussein Abebe, who sold Ghailani some of the TNT used in the embassy bombings – would testify voluntarily. It is possible that the government would have learned of Abebe’s existence regardless. Most importantly, what Abebe has to say does not depend in any way on Ghailani’s CIA interrogations.
Despite all of this, Judge Kaplan wrote in his opinion today: “The government has failed to prove that Abebe's testimony is sufficiently attenuated from Ghailani's coerced statements to permit its receipt in evidence.”
Again, this doesn’t make any sense. Judge Kaplan himself was able to question Abebe during a pretrial hearing in September. Abebe told Kaplan that he wanted to testify in order to clear his name. Abebe said he did not know that Ghailani wanted the explosives to blow up the embassies.
“He tricked me, he lied,” Abebe said of his interaction with Ghailani.
“A lot of people in the world know that I am involved in selling these explosives, so I’m anxious to be coming [sic] to clean myself up, and that’s why I want to testify,” Abebe told Judge Kaplan.
Abebe’s testimony, therefore, is most certainly “attenuated from Ghailani’s coerced statements” since he told the court that hewants to testify to clear his name. There is another angle to this. Ghailani told his interrogators that he purchased the TNT from Abebe. In turn, Abebe admits that he sold the explosives to Ghailani. Thus, once again, the intel from Ghailani’s interrogations checks out.
But that isn’t good enough for the court.
The argument adopted by Judge Kaplan is called the “fruit of the poisoned tree.” The theory is that once a detainee or defendant is subjected to any abusive or coercive measures everything that he says thereafter – for some unspecified period of time – is “poisoned.” Abebe’s testimony has not been “poisoned,” however, since he was not subjected to any coercive measures.
There’s more. As McCarthy relates, the government is not relying on Ghailani’s confessions to the FBI, which came years after the CIA’s coercive interrogations. It is likely that the government simply does not want to debate the “fruit of the poisoned tree” argument, thereby dragging the CIA’s interrogation program into court. The result is that Ghailani’s damning admissions won’t be heard by a jury, even though he made these admissions to the FBI.
There is another piece of evidence that should loom large, but for some reason does not. Ghailani’s own testimony before his combatant status review tribunal (CSRT) at Gitmo in 2007 is damning. This was years after Ghailani was subjected to any coercive techniques while in the CIA’s custody. Based on the various press accounts of the impending trial, it does not appear that the government is relying on Ghailani’s CSRT testimony.
Ghailani made a number of admissions in the context of flimsy denials. For example, Ghailani admitted that he purchased the TNT used in the bombings, but claimed that he thought it was “soap for washing horses.” Ghailani’s absurd explanation for how he came into possession of the TNT that killed hundreds of people was compounded by his equally ridiculous explanations for how he came into contact with the truck, fertilizer, detonators, gas cylinders, and cell phone used in the embassy bombings.
Ghailani’s testimony at Gitmo cannot be deemed “fruit of the poisoned tree” since he was trying to deny any direct involvement in the attacks. That is, he did not confess that he was an al Qaeda terrorist. There was no coercion in the CSRT hearing. Instead, Ghailani offered less than credible explanations for how he came to be involved in al Qaeda’s most devastating attack prior to September 11, 2001.
Hussein Abebe’s testimony would be damning, as would Ghailani’s own testimony and admissions.
As it stands now, a jury will hear neither because of specious legal arguments. The government is reportedly going to appeal Judge Kaplan’s latest ruling, as well it should.
Ghailani wasn’t washing horses in 1998. He is directly responsible for the murder of hundreds of people.
Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.