The first civilian trial for a terror suspect held at Guantanamo Bay has been delayed for a week after a federal judge ruled prosecutors can't call their most important witness because his identity was learned while the defendant was under harsh interrogation by the CIA.
Just before opening arguments were to start Wednesday morning, Judge Lewis Kaplan said he would not allow federal prosecutors to call Hussein Abebe, who the government says sold explosives to the defendant, Ahmed Khalfan Ghailani.
Ghailani, a Tanzanian national and allegedly a former Osama Bin Laden bodyguard, is accused of conspiring in the 1998 US embassy bombings in African that killed more than 200 people. Abebe had been expected to testify that he sold Ghailani the explosives used in the bombings.
The U.S. has acknowledged that it learned of Abebe and the alleged sale from Ghailani while Ghailani was being interrogated by the CIA. Ghailani , who was captured in Pakistan in 2004, was first held at one of the CIA's secret prisons, or "black sites," and then at Guantanamo Bay. The defense argued the evidence was produced by coercion and was thus inadmissible.
"The court has not reached this conclusion lightly," said Judge Kaplan. "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 only when it is convenient, but when fear and danger beckon in a different direction."
Ghailani's attorney, Peter Quijano, praised the judge's action. "This case will be tried upon lawful evidence, not torture, not coercion," he told reporters after the hearing.
At a press conference Wednesday, Attorney General Eric Holder said he still believed the U.S. can prosecute Ghailani despite the ruling. "I think it's too early to say that at this point the Ghailani matter is not going to be successful," said Holder. "We intend to proceed with this trial."
Critics said that the ruling was a sign that the Obama administration's strategy of trying Guantanamo detainees in civilian courts instead of military commissions was flawed.
"This is a bad day for the Department of Justice, certainly a bad day for the War on Terror," said Rep. Mike Rogers, R.-Michigan, ranking member of the House Intelligence Committee Terrorism Subcommittee. "Unfortunately it was a bad day that was completely predictable."
"The take away from today is that the 'law enforcement first' strategy is wrong, it's destined to fail," said Rep. Rogers, a former FBI agent. "Now is that first sign and a pretty cold slap in the face to the Department of Justice. . . . We need to get back to an intelligence-based solution and if they are foreign citizens and foreign terrorists we need to treat them as enemy combatants."
The government did not contest the defense's assertion that Ghailani was subjected to coercive interrogation while in CIA custody. Six months ago, it released a declassified 52-page FBI summary of Ghailani's interrogation in a court filing.
According to the summary, Ghailani described taking part in the embassy bombings, meeting future 9/11 hijackers and becoming a bodyguard for Bin Laden.
Kaplan determined that Abebe, the would-be witness against Ghailani, was "identified and located as a close and direct result of statements made by Ghailani while he was held by the CIA."