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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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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 he wants 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.

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