This post has been updated.
In the wake of the life sentence of Times Square bombing plotter Faisal Shahzad, the trial of the first former Guantánamo Bay detainee to be tried in a civilian U.S. federal court will finally get underway on Wednesday. Ahmed Khalfan Ghailani, a Tanzanian who's been in U.S. custody since 2004, is accused of assisting the 1998 bombings of U.S. embassies in East Africa that killed 224 people and wounded hundreds more.
Originally scheduled for opening statements on Monday, the trial was delayed at the government's request so the judge can rule on a critical question: can the government introduce at trial a witness it first learned about during abusive CIA interrogations?
Defense lawyers argue that the witness, Hussein Abebe, who the government says supplied Ghailani with explosives used to bomb the U.S. embassy in Tanzania in 1998, should be barred from the case because his identity is the fruit of the government's abuse. Prosecutors counter that the witness will testify voluntarily, and is only remotely linked to Ghailani's mistreatment. (Although evidence of Ghailani's treatment in CIA custody is largely classified and therefore filed under seal, nobody seems to be denying that Ghailani was subjected to the Bush administration's "enhanced interrogation techniques" in a secret CIA prison.)
At a hearing last month, federal district court Judge Lewis Kaplan, presiding over the case in lower Manhattan, questioned the government's claim that Abebe, who prosecutors call "a giant witness for the government," was testifying voluntarily. He's expected to rule on this issue by Wednesday.
That ruling could signal how federal judges might decide these sorts of questions in the future - and whether the government will give more civilian judges the opportunity to consider them.
About 35 detainees now being held at Guantánamo Bay are slated for trial, but the government hasn't said how many it plans to bring to civilian courts on U.S. soil, and how many it will try in military commissions set up at the Guantánamo prison complex.
Since September 11, civilian federal courts have convicted more than 400 people on terrorism-related charges. Many, like Shahzad, are now serving life sentences. Military commissions, meanwhile, have convicted only four. And two of those have already been freed. That's in part because since their creation, the military commissions have been struggling to interpret the new Military Commissions Act, first passed in 2006 and amended last year, and the accompanying rulebook issued just this past Spring. International lawyers and constitutional scholars say the law has substantial legal problems that would put most post-trial convictions at risk of appeal.
Judge Kaplan's rulings in the Ghailani case so far reflect the careful way most civilian federal judges handle these cases using established law. In detailed legal opinions, the judge has so far refused to dismiss the case, rejecting strong arguments from Ghailani's lawyers that the government violated his right to a speedy trial by waiting six years to prosecute him (he was captured in 2004), and that his abuse in CIA custody should lead to his acquittal.
To their credit, prosecutors are not relying on statements Ghailani made in custody - presumably concerned that they would be considered the products of coercive interrogations and therefore inadmissible. With four other men already convicted and serving life in prison for their roles in the bombings, the government apparently believes it has enough evidence against Ghailani without his statements.
Still, the alleged torture of Ghailani in a secret CIA prison hangs heavy over this case - as it will every other one where detainees were subjected to the so-called "enhanced interrogation techniques" that included sleep deprivation, exposure to extreme temperatures, stress positions, confinement in a box and in some cases, waterboarding.
The Ghailani case is also being closely watched for any local reaction it provokes. Last year, Liz Cheney and her advocacy group Keep America Safe rallied in downtown Manhattan to protest the administration's decision to hold the trials of the alleged September 11 plotters in a New York federal court. Obama critics such as Debra Burlingame warned that "part of Jihad is tying up lower Manhattan"; Karl Rove called holding trials there "an utter, unmitigated disaster for the security of the United States."
So far, though, the New York Policy Department has said it hasn't had to take any extraordinary security measures for the first former Gitmo detainee's trial. Having been inside the courthouse for jury selection, I didn"t notice any difference in security, either. Meanwhile, as my colleagues discovered the other day when they interviewed New Yorkers heading to work downtown, most locals don't even know the trial is happening. Watch reactions in the video below:
Update: This morning, Judge Lewis Kaplan ruled that a government witness who Ghailani identified while subjected to "enhanced interrogation techniques" in CIA custody cannot testify in the case because his testimony would be the product of unlawful coercion by the government. In a brief decision that he read from the bench, Judge Kaplan said:
The Court has not reached this conclusion lightly. 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. To do less would diminish us and undermine the foundation upon which we stand.
The government asked for 48 hours to decide whether to appeal the judge's ruling. Judge Kaplan adjourned the trial until next Tuesday.