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Judge Excludes Damning Testimony Against Al Qaeda Terrorist, Ahmed Ghailani

Fruit of the poisoned legal argument.

2:19 PM, Oct 6, 2010 • By THOMAS JOSCELYN
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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, he has 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 Online piece 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.

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