Re-reporting, editing by Carolyn Bennett
“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.”
U.S. District Judge Lewis A. Kaplan today in the case of Ahmed Ghailani barred testimony of a government witness whose identity was obtained through torture.”
Human Rights First’s Daphne Eviatar reported from the court —
Judge Kaplan “upheld a longstanding principle of the rule of law, barring testimony derived from the torture of the defendant. The issue here is not that the testimony has been barred, but that the defendant was tortured. The fact that [the judge] recognizes that evidence derived through torture is inadmissible also strengthens the view that civilian federal courts — not military commissions — can best handle difficult terrorism cases.”
The barred testimony in the Ghailani case is not the only evidence the government will present in this case. The government convicted four of Ghailani’s alleged co-conspirators in the same federal court, without the testimony of [the barred] witness. The significance of Judge Kaplan’s decision signals “that the court will not countenance evidence derived from torture.”
Judge Kaplan issued his written three-page ruling after a hearing three weeks ago in which the prosecution witness, Hussein Abebe, testified about his dealings with authorities.
“Abebe was identified and located as a close and direct result of statements made by Ghailani while he was held by the CIA,” Al Jazeera reports. “The government has elected not to litigate the details of Ghailani’s treatment while in CIA custody,” the judge said. “It has sought to make this unnecessary by asking the court to assume in deciding this motion that everything Ghailani said while in CIA custody was coerced.”
Defense counsel had asked the judge to exclude Abebe’s testimony on the grounds that it would be the product of statements made by Ghailani to the CIA under duress. The judge concluded that the government had failed to prove that Abebe’s testimony was sufficiently attenuated [thinned, separate and apart] from Ghailani’s coerced statements to permit the testimony into evidence.
“The court has not reached this conclusion lightly, Judge Kaplan wrote of his decision. [The court] 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.”
Sources and notes
Ahmed Ghailani is accused of assisting in the 1998 bombings of U.S. embassies in East Africa. Two hundred and twenty-four (224) people died, hundreds suffered wounds. Ghailani is the first former Guantanamo Bay detainee to be tried in civilian U.S. federal court.
Human Rights First, a New York and Washington D.C.-based non-profit, nonpartisan international human rights organization publishes a mission of building “respect for human rights and the rule of law and helping to ensure the dignity to which everyone is entitled and to stem intolerance, tyranny, and violence,” http://www.humanrightsfirst.org/media/usls/2010/alert/665/; http://www.humanrightsfirst.org/about_us/about_us.aspx
Amnesty International wrote before Kaplan’s latest ruling —
The decision to prosecute Ahmed Khalfan Ghailani in an ordinary court instead of continuing to hold him in indefinite detention without criminal trial or trying him before a military commission is a welcome decision. However, a shadow lies over the proceedings.
The trial serves as a reminder that Ahmed Ghailaini remains the only Guantánamo detainee to have been transferred to the U.S. mainland for prosecution. Nearly a year after the U.S. Attorney General announced that five other detainees would be brought to New York to be prosecuted in relation to the attacks in the United States on September 11, 2001, the five men, along with more than 150 others, remain in Guantánamo without charge or trial. Many of detainees and survivors of the attacks “continue to wait for justice.”
Although the U.S. government has succeeded in seeing off defense motions to have charges against Ahmed Ghailani dismissed, government has failed “to ensure accountability and remedy for such human rights violations – including the crimes under international law of enforced disappearance and torture” – leaving an injustice that must be addressed urgently and thoroughly.
“The trial of Ahmed Ghailani, who was arrested in Gujarat in Pakistan on July 24 or 25, 2004, and secretly handed over to U.S. custody on a still classified date the following month, could and should have occurred years ago. However, U.S. authorities chose to subject Ghailani to two years in the secret detention program operated by the Central Intelligence Agency (CIA).
“During that time, he was subjected to enforced disappearance and to detention conditions and interrogation techniques that violated the prohibition of torture and other cruel, inhuman or degrading treatment. He was transferred to indefinite military custody in Guantánamo in early September 2006 before being charged for trial by military commission in March 2008.
“Four months after President Barack Obama took office (May 21, 2009), the Department of Justice announced that Ahmed Ghailani would be tried, not by military commission but in federal court under an indictment that had been pending against him (since March 2001) in the District Court for the Southern District of New York. On June 9, 2009, he was transferred from Guantánamo to New York and charged with complicity in the August 1998 bombings of two U.S. embassies in Kenya and Tanzania in which 224 people were killed and many more injured. He faces a life sentence if convicted.”
“USA: Shadow over justice— Absence of accountability and remedy casts shadow over opening of trial of former secret detainee accused in embassy bombings — The trial of a Tanzanian man transferred last year from the U.S. Naval Base at Guantánamo Bay in Cuba to the U.S. mainland for prosecution is set to begin in New York on October 4, 2010.” Amnesty International USA, October 1, 2010, http://www.amnestyusa.org/document.php?id=ENGUSA20101001001&lang=e
Lewis A. Kaplan (b. 1944, in Staten Island, NY), Federal Judicial Service: Judge, U. S. District Court, Southern District of New York, nominated by William J. Clinton May 5, 1994, to a seat vacated by Gerard Louis Goettel, confirmed by the Senate August 9, 1994, received commission on August 10, 1994
Education: University of Rochester, A.B., 1966, Harvard Law School, J.D., 1969
Professional Career: Law clerk, Hon. Edward McEntee, U.S. Court of Appeals, First Circuit, 1969-1970
Private practice: New York City, 1970-1994
Special master: U.S. District Court for the Southern District of New York, 1982-1983
http://www.fjc.gov/servlet/nGetInfo?jid=1226&cid=999&ctype=na&instate=na
“U.S. judge bans Guantanamo witness — Court delays start of the first civilian trial for a Guantanamo Bay detainee citing irregularities with state witness,” October 6, 2010, http://english.aljazeera.net/news/americas/2010/10/2010106152441461929.html
United States District Court Southern District of New York
United States of America against
Ahmed Khalfan Ghailani, Defendent
____________________________________________________
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