Embassy Bomber Trial In Jeopardy Over Judge's Ruling on Witness Testimony

The trial of Ahmed Khalfan Ghailani is now in limbo because the judge is refusing to allow a government witness who claims to have sold Ghailani weapons.

"The court has not reached this conclusion lightly," Kaplan wrote. "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 when it is convenient, but when fear and danger beckon in a different direction."The government immediately asked for a delay of the trial, which had been expected to begin with opening statements on Wednesday, so that it has time to appeal the ruling, should it decide to do so.

The judge sent a pool of 66 jurors home until Tuesday, but not before warning them against hearing anything about the case from news reports or discussing it with anyone.

Ghailani is charged with conspiring in the 1998 bombings of two U.S. embassies in Africa. The attacks killed 224 people, including a dozen Americans.

The witness in question is Hussein Abebe, who testified three weeks ago in a hearing before the judge about his dealings with authorities. Judge Kaplan found that the government failed to prove that Abebe's testimony is sufficiently attenuated from Ghailani's coerced statements to permit its receipt in evidence.

Abebe was apparently discovered as a witness after statements Ghailani made while in CIA custody where it is alleged that he was subject to torture/enhanced interrogations.

Ghailani is a Tanzanian who was captured following the embassy bombings in Africa. It would appear that the decision is along the lines of a "fruit of the poisonous tree" doctrine (an offshoot of the exclusionary doctrine in evidence, which prohibits prosecutors from introducing evidence if it was illegally obtained. In this case, the judge is finding that the evidence from Abebe was obtained because of the ties with Ghailani's coerced statements while in CIA custody.

A way that prosecutors could overcome this is if they can somehow show that Abebe's testimony would have eventually been discovered by some independent means. Of course, that too runs into problems that might reveal classified national security secrets.