Judge tosses key witness, delays trial of ex-Gitmo detaineeBy BRUCE GOLDING
New York Post
October 7, 2010
The first civilian trial of a Guantanamo Bay detainee was thrown into chaos — and future terror trials were thrown into doubt — when the judge on Wednesday barred testimony from the prosecution’s star witness.
Manhattan federal Judge Lewis Kaplan said former Tanzanian miner Hussain Abebe "was identified and located as a close and direct result of statements" coerced from defendant Ahmed Khalfan Ghailani while he was in CIA custody.
"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 when it is convenient, but when fear and danger beckon in a different direction."
Legal experts said the ruling — while not binding on other judges — might make the Obama administration rethink its plan for public trials of other Gitmo detainees, including self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed.
"A decision like this, from a well-respected judge like Judge Kaplan, may well chill the government from deciding to try further cases in a civilian courtroom and retreat back to Guantanamo Bay and the military tribunals," said prominent Manhattan defense lawyer Gerald Shargel.
Ghailani — who’s charged with helping carry out the deadly 1998 al Qaeda bombings of two American embassies in East Africa — smiled broadly and shook hands with one of his lawyers after Kaplan announced his decision.
The judge delayed final jury selection and opening statements until at least Tuesday after prosecutor Michael Farbiarz asked for time to consider a possible appeal.
Farbiarz — who has called Abebe "a giant witness for the government" — said an appeal could push back the trial until "maybe a few months out."
Abebe testified at a pre-trial hearing last month that Ghailani tricked him into selling him several boxes of dynamite that officials say were used to blow up the embassy in Tanzania.
Kaplan sent home about 65 prospective jurors with strict warnings not to follow any news about the case or speculate about the reasons for the delay.
Outside the courthouse, lead defense lawyer Peter Quijano hailed Kaplan’s "courage and support for the law," saying: "It is the Constitution that won a great victory today."
"This case will be tried upon lawful evidence. Not torture. Not coercion," Quijano said.
At a news conference in Washington, D.C., Attorney General Eric Holder said "we intend to proceed with this trial," and that "it’s too early to say that at this point the Ghailani matter is not going to be successful."
"We have to understand something, we are talking about one ruling, in one case by one judge that we will look at and decide how we want to react to it," said Holder, who touched off a firestorm of controversy last year when he announced plans to try Khalid Sheikh Mohammed and four alleged Sept. 11 plotters in lower Manhattan.
U.S. Rep. Peter King (R-Long Island) said yesterday’s ruling should serve as a "wake-up call" that the idea of civilian terror trials is "at every level ... the wrong thing to do
"If you’re going to be applying strict civilian trial rules of evidence, it could make it very difficult to get these convictions," King said.
"And with the whole world watching it could be disastrous, because everyone knows these guys are guilty."