Tales from the Trail

Footnote in terrorism ruling brings politics to the courtroom

By Basil Katz
October 14, 2010

The trial in New York of Ahmed Ghailani, the first suspect from the Guantanamo Bay, Cuba prison to face a jury in a U.S. criminal court, is being closely watched as a template for future terrorism cases and by those who think those suspects should be in military courts instead.

USA-GUANTANAMO/GHAILANIGhailani, a Tanzanian, is accused of participating in the 1998 al Qaeda-sponsored bombings of the U.S. embassies in Tanzania and Kenya, which killed 224 people. He was arrested in 2004 in Pakistan, and was subsequently taken into CIA custody for two years before going to the Guantanamo prison.

Many Republicans and some Democrats have said civilian courts are not up to the challenge of prosecuting terrorism suspects and favor the military commissions.

That fiery debate made its way into the trial on Thursday in the form of a lengthy footnote near the end of a 60-page ruling that barred a key witness, Hussein Abebe, from testifying. He is believed to have sold Ghailani the TNT explosives used in the bombings.

Judge Lewis Kaplan, defended his decision to bar the witness — because he had only been discovered after Ghailani was coerced to reveal his identity — and said a military commission judge would likely have made the same call.

“It is very far from clear that Abebe’s testimony would be admissible if Ghailani were being tried by military commission,” the judge said, adding that the laws governing military trials may bar or restrict evidence obtained from torture, cruel or inhumane treatment.

“Even if they did not, the Constitution might do so, even in a military commission proceeding,” he wrote.

When the judge first announced this last week, critics pounced. They said the loss of Abebe was a clear sign the civilian courts couldn’t handle important cases such as Ghailani.

“The notion that a military commission is going to be favorable to the prosecution is not necessarily true,” said Col. Morris Davis, a former prosecutor at the early Guantanamo military trials. “So I tend to agree with the judge.”

He acknowledged that in military commissions the “rules are broader than in federal courts,” but he added that the individual judges tended to adhere to stricter than minimum standards.GUANTANAMO/

Proponents of military commissions argue they are more reliable at securing convictions and are more appropriate for suspects who they say don’t deserve the full panoply of legal rights afforded U.S. citizens in federal courts.

Ben Wizner, a lawyer at the American Civil Liberties Union, disagreed.

Although there is no way to know how a military commission would have handled the Abebe question, Wizner said, “there is reason to be wary that a military commission might have allowed this witness to testify.” Judges in the military system have “a lot more discretion.”

As to why Kaplan brought up the issue in the first place, Wizner couldn’t say. “Judge Kaplan has no reason to be defensive of his ruling,” he said, because “the possibility that military commissions might have reached a different outcome is not a critique of the federal courts but a rising endorsement of them.”

- Photo credits:  Christine Cornwell/Reuters (courtroom sketch of Ghailani during his arraignment); Pool photo (Guantanamo Camp Justice where military commissions are being held)

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