Judge orders hearing to assess witness participation in Ghailani trial

Judge Kaplan issued a 36-page decision  addressing whether the U.S. government may call as a witness a man whose identity was revealed by Ghailani when he was subjected to “extremely harsh interrogation methods” by the CIA. Both the methods of coercion and the specific statements made by Ghailani during interrogation were blacked out in the heavily censored decision. The decision states only that Ghailani was placed in the CIA’s Rendition, Detention and Interrogation program.

That program used a combination of social influence approaches and extremely hars interrogation methods to obtain intelligence from a handful of detainees believed to possess particularly high-value information. Each was subjected to a unique interrogation program designed to reduce [the detainee’s] physical ability and emotional desire to resist interrogation.

Mr. Ghailani moved to suppress the statements that led to the discovery of the witness in April 2010. Although the identity of the witness has not been released, court papers suggest he would be willing to testify “voluntarily” regarding Mr. Ghailani’s purchase of “hundreds of pounds of explosives,” according to the government. Brief references in declassified papers say the witness is a Tanzanian named Hussein.

The judge had doubts whether the witness would come voluntarily:

There is evidence that arguably undermines the government’s glaim.(…) The record discloses nothing about what happened while [the witness] was in Tanzanian custody, and it is sketchy even about what took place after the FBI arrived.

Ghailani, who was captured in Pakistan in 2004, remains the first and only Guantánamo Bay detainee to be transferred to an Article III court. He is accused of, among other things, purchasing the explosives used in the August 1998 attacks on the U.S. embassies in Tanzania and Kenya. The 286-count indictment against him includes more than 200 counts of murder.

In his motion to suppress, Mr. Ghailani argued that all of his custodial statements were coerced and obtained in violation of his constitutional right to counsel. The witness’ testimony should therefore constitute inadmissible “fruit of the poisonous tree” — evidence derived from illegally obtained statements.

In opposition, prosecutors from the Southern District U.S. Attorney’s Office set forth three arguments in support of the notion that the “taint” of the coerced statements had “dissipated.”

First, the prosecution contended that the government would have inevitably obtained the witness by independent, lawful means.

The government also argued that the case fell outside of the “core application” of the fruit-of-the-tree doctrine. It contends that the CIA interrogated Ghailani for the purpose of obtaining intelligence thought directly relevant to national security objectives. Any violation by it of Ghailani’s Fifth and Sixth Amendment rights therefore occurred in circumsntaces in which the CIA probably did not contemplate, and in any case was not likely motivated by, a possible criminal prosecution of Ghailani. Excluding evidence that is relevant to a criminal case and that was obtained as a collateral consequence of a national security investigation, it contends, would not serve the detterent purpose of discouraging illegal law enforcement behavior.

Finally, the prosecution contended that the witness’ trial testimony would be sufficiently “attenuated” from the alleged illegality.

Judge Kaplan rejected the prosecution’s first two arguments and ordered a hearing on September 14 to address the third, at which he will take testimony from, among others, “any FBI, CIA and Tanzanian witnesses the government elects to call and from [redacted] if the government wishes to produce him.”

Judge Kaplan has already rejected arguments that Mr. Ghailani’s case should be dismissed because his constitutional right to a speedy trial was violated and because of his treatment while in C.I.A. custody.

Mr. Ghailani’s trial is scheduled to begin on Sept. 27.

Kurdish TV station faces terror charges

The Danish-based Kurdish TV station Roj-TV was charged with the promotion of terrorism – a charge that follows a lengthy investigation into the station and could result in its transmission license being revoked.

Top prosecutor Joergen Steen Soerensen said that Roj-TV is helping promote the PKK, or the Kurdistan Workers’ Party, which is considered a terrorist group by Turkey, the U.S. and the European Union. Roj-TV broadcasts in Kurdish from Denmark. Earlier this year its Danish CEO stepped down and immediately told the press about the station’s links to the PKK, an organisation that is on both the EU and the US’s terror lists.

Although the authorities had been monitoring Roj-TV for five years, a thorough investigation of the accusations was launched and yesterday Lars Barfoed, the minister of justice, confirmed that he has charged the station.

According to Soerensen, Roj-TV has “persistently” aired shows with interviews of PKK members and supporters but also about skirmishes between Kurds and Turkish forces. The station’s content was “aimed at promoting and supporting the activities of the terrorist organization PKK” and its political wing, Kongra-Gel, the prosecutor said.

The programs “must be regarded as having the characteristics of propaganda in support of PKK,” Soerensen said. The charges came after “extremely comprehensive investigations” of the connections between Roj-TV and PKK, he added.

Journalist Gets Six-Year Prison Term in Somaliland for Interviewing Man with Al-Qaeda Links

On August 14, 2010, in Somalia’s Puntland State, a court convicted a journalist affiliated with a Bosaso-based radio station of violation of Puntland’s anti-terrorism laws, for conducting an interview with a local rebel leader with links to Al-Qaeda. Bosaso is a port town in Puntland. The court imposed a six-year prison term and a fine of US$500. The trial was said to have been closed to the public, and to have lasted only a few minutes (id.).

The Puntland Anti-Terrorism Law, which reportedly confers increased power on the state’s security apparatus and courts to arrest and sentence individuals suspected of terrorism, was enacted by the 66-member Puntland Parliament only 25 days before the sentencing of the journalist, on July 20, 2010. The journalist most likely was charged under the provisions of this newly enacted law.

Argentine court overturns ruling on search engines’ liability for links

An appeals court in Argentina has ruled that search engines are not responsible for the content of sites that they index. The court overturned a lower court’s ruling against Google and Yahoo! Argentina.

A lower court had found the search firms liable for damaging the ‘moral character’ of Virginia Da Cunha, a model, singer and actress, by linking to pages that named her and used her image in a sexual context. Each company was ordered to pay 50,000 pesos (approximately £8,200) plus interest.

It was just one of more than 100 similar lawsuits that demanded search engines block links to pages relating to famous people, including football legend Diego Maradona, models, actors and public servants. According to a  report by The New York Times, Da Cunha’s case was the furthest along of those cases.

Argentine lawyer Martin Leguizamón Peña was behind 108 of the court applications that resulted in temporary orders being issued against the search companies in 2008. He told Argentina’s News Magazine at the time that he was acting to protect his clients’ image rights, privacy and honour.

When the 2008 ruling was issued, Yahoo! blocked all search results for the individuals, replacing them with a notice. An automatic translation of that notice says: “Because of a court order sought by private parties, we have been forced to temporarily remove some or all of the search results”. Google said it was unable to comply with broad injunctions, according to The New York Times. Both firms had been ordered to pay damages to Da Cunha.

The National Chamber of Civil Appeals has now  ruled that search engines become liable for the content of third parties only if they negligently fail to remove content upon being made aware of its illegality.