From the government's perspective, Judge Lewis Kaplan's ruling that a key witness in the trial of former Gitmo detainee and alleged Tanzanian embassy bomber Ahmed Khalfan Ghailani, Hussein Abebe, wasn't allowed to testify because his identity was initially extracted through torture is something of a setback. For the right, it's a disaster -- proof that civilian courts can't handle terrorism prosecutions. For the left, it's something else -- the first court ruling that suggests that the Bush administration's "enhanced interrogation" techniques were illegal.
Here's Karen Greenberg:
I've written about post-acquittal detention previously -- basically, it turns due process into mere pageantry. That said, I think it's highly unlikely that the administration would simply let Ghailani go. The Bush administration raised the possibility after the conviction of Osama bin Laden's limo driver, Salim Hamdan, but ultimately never did anything. Ghailani, though, is ultimately accused of much more serious crimes. Attorney General Eric Holder has said post-acquittal detention is "on the table."For civil libertarians, it was a classic good news/bad news day. The good news was that a court had ruled that the government would pay a price for torture—maybe not in punishments for those who devised the policies, but in significant setbacks for its prosecutions of alleged terrorists. Today, torture met its first institutional, legal rebuke.
The bad news is that this is only the tip of the extra-legal iceberg. The law can be twisted in other ways—outside of the realm of torture—to accommodate the government's unique treatment of Guantanamo defendants, including the possibility of post-acquittal detention.
Andy McCarthy is predictably wringing his hands:
Surprisingly, Judge Kaplan appears to be siding with the defense in this dispute. In a heavily redacted 37-page ruling issued in August, Kaplan concluded that the government had failed to meet the exacting burden required to show that it would inevitably have learned about Abebe without Ghailani’s confession. More dismayingly, the judge was unmoved by the government’s contention that the “fruit of the poisonous tree” doctrine was inapposite.
Prosecutors argued that this doctrine -- a Fourth Amendment suppression-of-evidence remedy invented by judges -- was designed to discourage bad behavior by police (specifically, unlawful searches). To the contrary, the FBI’s questioning of Ghailani had been legal and in the national-security interest of a country at war with a ruthless terror network about which Ghailani has intimate knowledge.
Another way of saying this is that had Ghailani not been tortured prior to being questioned by the FBI, there wouldn't be any questions about the voluntariness of his confession and the government wouldn't be having these problems. It's also far from clear that the military commissions McCarthy prefers wouldn't have similar problems -- while a military judge recently accepted Gitmo detainee Omar Khadr's confessions granted after he was subject to abuse, military commissions can be appealed into federal courts where the judges are less likely to see such confessions as legitimate.
Torture, not the rule of law, is jeopardizing Ghailani's prosecution.
