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.

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