ProPublica

Journalism in the Public Interest

Cancel

Exclusion of Coercion-Tainted Evidence Echoes Other Gitmo Cases

A federal judge’s decision Wednesday—excluding key evidence from the first civilian trial of a Guantanamo detainee—is the latest, and perhaps most significant, in a series of government losses in Gitmo-related cases that relied on evidence gained during coercive interrogations.

.

In a decision delivered Wednesday, Judge Lewis Kaplan blocked the government from calling one of their key witnesses against Ahmed Khalfan Ghailani, inset, whose trial is now slated to start next week at the federal courthouse in Manhattan. (Daniel Barry/Getty Images)

A federal judge's decision today -- excluding key testimony from the first civilian trial of a Guantanamo detainee -- is the latest, and potentially most significant, in a series of government losses in Gitmo-related cases that relied on evidence gained during coercive interrogations.

Ahmed Khalfan Ghailani, accused of participating in the 1998 al-Qaida bombings of U.S. embassies in Kenya and Tanzania, had been set to go on trial Wednesday in Manhattan. Judge Lewis Kaplan's ruling blocks prosecutors from calling a witness, Hussein Abebe, who was expected to testify that he had sold Ghailani the explosives used in one of the attacks. Prosecutor Michael Farbiarz had called Abebe a "giant witness for the government."

Judge Kaplan postponed the trial until Oct. 12 while the government considers whether to appeal the ruling.

The judge concluded that the information from Abebe was the "close and direct result" of coercive interrogations that Ghailani had faced in CIA custody. Three days of pretrial testimony by FBI and CIA officials failed to persuade Judge Kaplan that the government would have gotten the same information from Abebe without using Ghailani's interrogation statements, which prosecutors conceded had been coerced. Relying on coerced evidence would be unconstitutional, the judge explained. (Read the judge's order.)

As the first civilian prosecution of a Guantanamo prisoner, the Ghailani case is widely viewed as a bellwether for the Obama administration, which insists that ordinary federal courts can effectively try suspected terrorists. But, as we detailed in a recent story published in partnership with the National Law Journal, coercion-tainted evidence has already played a part in the government's losing a number of federal lawsuits filed by detainees seeking release -- and could foreclose future criminal prosecutions in military or civilian court.

The government has lost at least eight detention challenges in which inmates claimed incriminating statements had been made up in fear of aggressive questioners. Judges condemned interrogation methods ranging from verbal threats to physical abuse they called torture. (See our chart of Gitmo detainee suits.)

Ghailani has claimed he was tortured during several years in CIA custody at secret prisons overseas, before his transfer to Guantanamo in 2006.

In a side note that seemed to underscore the importance of the evidence he was excluding, Judge Kaplan stressed that, even if the government goes on to lose the case, Ghailani is unlikely to go free. He wrote in a brief order that the defendant's "status as an ‘enemy combatant' probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and al-Qaida and the Taliban end."

The statement echoed assurances Obama officials have given in congressional testimony that acquittals in criminal trials would not necessarily result in the release of Guantanamo detainees. The law of war, the administration has argued, justifies prolonged detention regardless of trials for many of the 174 remaining captives. Officials have already said that at least 48 of the prisoners will be held indefinitely because they're too dangerous to release but can't be prosecuted successfully in military or civilian court.

Judge Kaplan said that he'd written a detailed opinion explaining his decision, but that it needed to be declassified before the public could see it.

The events unfolded on the 26th floor of the federal courthouse in lower Manhattan, in one of the building's largest courtrooms. Reporters appeared to outnumber other onlookers. Indoors extra security had been put in place, including a second metal detector and X-ray machine just outside the courtroom and the requirement that attendees be escorted from the lobby by a U.S. marshal.

But outside life appeared to go on as usual. The surrounding streets remained open, and passers-by took little notice of the few additional uniformed officers stationed on the sidewalks or of the media presence. Reporters and television cameras crowded into a makeshift pen of metal police barricades, awaiting a promised statement from Ghailani's attorney, but the cluster was modest for a courthouse where headline-making cases are routine.

Flanked by a half-dozen colleagues, defense lawyer Peter Quijano delivered a few short sentences. "This case will be tried upon lawful evidence – not tortured, not coerced," he said. "It is the Constitution that won a great victory today." The group turned and re-entered the courthouse, leaving many questions unanswered.

Oh, goodie! We have a pretender president, his dip-chit attorney general, and a judge trying to build his brag sheet assuring their terrorist friends will get away with killing innocent American citizens. Can you believe this?

And we have one on this forum that goes by the name of chappie.

I guess all we can do is pray to Allah.

Actually, I e-mailed the CIA the other day to congratulate them on their successful stealth missions over there in God-knows-where…

I guess Allah wanted all those guys who got blown up over there in God-knows-where to come to Allah-land early.

Lyria—

Yes you do have one named Chappie, and he’s furious with what has happened to America over the past year and a half. You should be too, and if you’re not, you’re simply playing ostrich.

I had two blood relatives and one close friend who were vaporized on 9-11. All three, like the other 3,000 dead, were innocent people who’d only gone to work that morning and ended up being vaporized in a sick and senseless murder.

If that doesn’t fit your picture of an American, then, without apology, I’m sorry. But I’d ask you to judge me when you’ve lost three people close to you to senseless butchers who did what they did because someone told them they’d be enjoying 70 perpetual virgins.

I’m sorry to hear about your lost.  It must be very difficult and it is apparent that the wound is still festering.  However, if the throw out the Constitution and act like the results always justify the means, then you are talking about a different America than the one our founders created.  Don’t allow revenge and bitterness rule your life.  And Chappie, a picture of a true American is one that applies the rule of law equally to all.

David—

The founding fathers never created a lay-down-roll-over-and-play-dead nation. Using your theory, we should then have thrown open the Golden Gate and welcomed the Japanese to help themselves after their sneak attack on Pearl Harbor.

You will never stop suicidal terrorists by giving them the rights we’ve fought and died to ensure to peaceful people living in America.

And while you’re lecturing me on what “the picture of a true American is,” and about equal application of the law, let’s equally apply THEIR law and fly a drone filled with 10,000 gallons of aviation fuel into a major building in one of their major cities. Let’s kill 3,000 of THEIR civilians.

Am I bitter David? You bet. But my bitterness is directed not so much at the terrorists from abroad as it is toward those who would aid and abet them, and put their rights above the safety of American citizens. My bitterness is directed at our enemies in Washington.

David, grow up.

chappie, and you think everything was fine and dandy from 2001-2008? What planet were you on during those years?

I guess you condone chimpy bush’s lies and there were many of them. He’s stupidity when he traveled to other countries making a complete fool of himself, making us look like a country of buffoons.

Do you think ignoring our quest for bin Laden and al Qaeda, and invading Iraq who had nothing to do with 9/11 (he finally admitted later) lying about WMD which he also admitted a year later never existed was a great time in our history and economy?

Borrowing trillions of dollars from China and Saudi Arabia forcing President Obama to start paying the mess chimpy bush left behind.?

Then you are intellectually challenged.

Chappie, what has happened to America over the last year & 1/2?  Are you referring to the “O” becoming P.O.T.U.S.?  You don’t consider the erosion of the Constitution & Bill of Rights, Wall Street Looting, the corruption of the Congress of the U.S.A. among important issues that everyone should be concerned with? Before you jump on you bandwagon & label me, I’m an ex-Marine who was honorably discharged, put my time in to serve my country, am damn proud of it too. What are your Bonafides?

BTW I made a type o it’s Lyris not Lyria. I saw 9/11 as it happened. It was a horror I will never forget.

But had chimpy and gang stayed and did their jobs 9/11 probably would never have happened, they were warn way before it happened and they were warned how it would happen.

Look it up, rice tried to lie their way out of it, but records in the White House said differently. So if you are angry, be angry with chimpy bush et al. They didn’t care.

Foreign terrorists are NOT entitled to constitutional protections. Terrorists captured offshore and taken to Cuba should acquire no rights.
The terrorist who blew up our foreign located embassies should be detained and then hung!

I’ve been holding back this opinion since 9/11.  But truth be told, If a deal could have been struck with the devil, I’d have had the plane that crashed in Pennsylvania successfully find it’s target, assuming it was the Capitol,  In return the devil would have spared the Twin Towers.  Think about it.  The lives of a few worthless politicians in return for thousands of hard working, innocent citizens.

Ray Aronson, you are absolutely right in your assessment. What has been done is to provide aid and comfort to America’s most heinous enemies and acts of pure treason.

Norman — f/y/i, retired gunnery sergeant U.SM.C., two tours in Vietnam, two Purple Hearts, two Silver Stars, one Bronze Star. If you really were a Marine, my beloved Corps, how is it you weren’t weeded you out as a slacker. Let’s face it, —you’re a phony and your resume is pure fiction.

As for Lyris and the rest, I was no fan of Bush’s, and if the Democrats had run anyone better than Gore, he or she would have gotten my vote., Felt much the same way in 2008 about who the Democrats nominated — but at least McCain was a genuine American (who provided ALL records to Congress) and a real war hero. Unfortunately, his politics were skewed, but he was a by-God American.

You armchair psychos can only second guess what Bush did, but with pretender Obama, the facts are there before you. In just 18 months, we’ve seen him insult our strongest allies, bow and kiss the asses of anti-American kings and dictators. And it was he alone who imperiled the safety and ability of our intelligence community to obtain needed information by giving citizen rights to maniacal terrorists.

But hey, don’t pay attention to me. Suck up to to your phony president and his cabinet of tax evaders and cheats. Keep him in office for another six years (lotsa golf needs playing), give him his socialist Congress, let him tax your asses out of existence and they bury you with his so-called health care.

I realize this country isn’t made up totallyof morons—but it was demonstrated in November 2008 that they have a 53-percent majority—and it’s being demonstrated again here in this forum.

Poor little Chappie!  He spent two tours in Viet Nam and is now having flash backs.  Two tours in Viet Nam doesn’t make you an expert in democracy.  It just shows you like useless wars (which require volumes of taxes and lives) and that doesn’t make you a better American.  Why do you crawl back into your tea pot and brew a few more decades?

David —

I mentioned my service record only because your like-minded pal, Norman, boasted his phony resume and demanded to know my bona fides.

It’s so good of of the two of you, however, to take this forum to vindicate me by demonstrating to the world your membership in the 53 percent.

(Psst, here’s a nugget for you, David — if you don’t say anything, people will never know you two ride to school on the little bus).

I love the “I did X, Y and Z so I have more of a right to comment on A, B and C than you”. It’s sort of like a d*ck-measuring contest - except far more crude.

Measure on, my friend; measure on. (And by all means, throw in a few rambling, foaming-at-the-mouth comments about a center-right political party being socialist…).

I guess Emerson was right; fear does always spring from ignorance. He should have just added that aggression generally springs from fear…

The real damage done by the Bush admin was the destruction of some of our ‘Bill of Rights’
You remember the bill of rights, its the set of rules the people use to defend themselves from government oppression.
When the gov. breaks the rules for one of us they are weakening the protection the Bill of Rights for the rest of us.
...torture gives up good intelligence? BULLSHIT !!
With a simple pair of pliers I can make you confess to eating babies, in 18 seconds for most folks and 30 minutes for a real tough guy.

I guess war criminals tend to flock together.

@Chappie: You said ” let’s equally apply THEIR law and fly a drone filled with 10,000 gallons of aviation fuel into a major building in one of their major cities. Let’s kill 3,000 of THEIR civilians.”

This is exactly the problem with what you are calling “being a true American.” You are actually espousing anarchy, because you are saying that our laws don’t have to apply to us when we are angry enough or have been devastated by a heinous act (the reason doesn’t really matter).

Dick Cheney was always fond of evoking “the safety of the American people” when he wanted to skirt the rule of law or violate a consitutional freedom, and your contentions are no different. Freedom is not a safe place, but we want to be safe, apparently, more than we want to be free. Cheney recognized that and systematically exploited it. Like him, you would have us prostitute ourselves by fighting for our safety—a much more fearful and desperate position than that of fighting for our freedom.

Ironically (or maybe not so ironically), Cheney and terrorists have this insight in common. Terrorists exploit our desire to be safe as well, because, like Cheney, they know that fear is a powerful tool that distorts our judgment and weakens our will. And make no mistake, responding in kind as you suggest is not strength, it is weakness. Terrorists (and politicians) are winning when they lead us to a place where we equate the preservation of safety with the preservation of freedom.

In our fear, we have allowed steps to be taken—like creation of a Homeland Security entity with incredibly broad powers—that threaten to erode the liberty we thought we were protecting. And, you, Chappie, like so many others who, sadly, believe that freedom need only be protected through the wielding of a bigger stick, are standing in the cheering section applauding as Lady Liberty hangs her head and walks slowly out the back door.

Insisting on the rule of law is a place of strength, not a “roll-over-and-play-dead” place as you suggest. We do not refrain from violence and anarchy for the sake of those who commit heinous acts against us. They certainly do not deserve it. But, for our own sakes and the sake of the principles that form the foundation of our nation, we must insist that the rule of law be universal, applying especially to those who we cannot consider deserving of it.

If we allow ourselves to believe that we can evaluate whether a human being has rights based on some criterion or set of criteria or circumstance or act, we have placed ourselves firmly in the same camp as those who justify their heinous acts as means to some holy end.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”

Chappie, do you see the words “American citizen” in the above quote from the Declaration? I believe that it refers to every human being, yet you (and I see this frequently from those who share your distorted perspective) contend that it is some sort of abomination to confer what you call “citizen’s rights” on terrorists. Our society is worth nothing if we begin to draw a circle and say this only applies to people inside the circle.

Your mindset is extremely dangerous. One day someone might draw a circle that leaves you outside. If you are willing to take that risk, then you will get—perhaps have already gotten—exactly the government you deserve.

Okay, Dan Davis, you’ve simply overpowered me with your veritable plethora of lunacy. And when they bowl you over and kill you family and steal all of your possessions and fly an airplane filled with gasoline into a building you own, you just stand up and stamp your little feet, and hold up the “Rule Book” and remind them they aren’t playing fair. I’m sure they’ll then be really ashamed and instantly stop their naughty behavior. Like I said, you’ve overpowered me, and I have no more argument left for you.

I see. When you can’t logically defend your position you set up a strawman version of me as a petulant child having a temper tantrum so taat you can knock it down with insults. That’s OK, I’ve never gotten anything more substantive from others espousing your position, so it’s a familiar place to be.

You behave as if the law had no teeth—as if the only response to violence and evil is more violence and evil. Is justice a foot-stamping, spoiled brat in your eyes? Do you really want an eye-for-an-eye society, where the only expectation of justice is randomly meted out retribution by the self-righteous?

A civilzed justice system is perfectly capable of meting out appropriate consequences for heinous acts, and can do so without stooping to the level of the accused.

Well said Dan. My only hope is you enjoyed writing the above piece. Because any hope of actually helping someone elevate their view point will be dashed, because as my Dad was fond of saying,
“never argue with drunks idiots or the insane “.

Good luck to you Dan.
Respectfully
Bin

Yeah, I wouldn’t even bother with people like that. You know those people in your life that you want to help but every time you try they just get even more &*%$ed? It’s a bit like that… It’s like trying to reason with a cornered animal. You won’t get a real response… just lots of shouting and posturing.

It’s a pity, I guess. But ultimately I don’t think it really matters.

Our country is increasingly polarized, and one of the places we can most often see it is in the Comments sections of news websites. I’ve done a lot of ignoring in the past, and have even taken part in the verbal grenade-lobbing, but have recently decided that it’s important to occasionally try to engage in meaningful discussion. I can’t make people engage in real discussion, but I can give them the choice.

So far, it’s not working for me. I hope we haven’t lost the ability to discuss issues with passion AND civility, each listening and trying to learn from the others. But a lot of Americans WANT to be angry and vindictive these days, and, like Jack Nicolson’s character in “A Few Good Men,” they hate to be reasoned with.or challenged with facts. In nearly every case I’ve experienced, the response is like Chappie’s above: Just another variant of Nicholson’s snarling “You can’t handle the truth!”

And that’s very, very sad.

How can you argue with people who quite literally have their own set of facts? I mean - objectively speaking (i.e. as judged from international standards) - the current Obama administration is a center-right government, yet some of your countrymen seem to think that he’s a socialist. How can you argue with that sort of doublethink. It’s like trying to convince a man who insists that black is white that it is, in fact, white.

That’s just one example, there are so many more. I’m becoming increasingly convinced that these people do not recognise any reality outside of their own emotional state - which is dominated by fear and anxiety. Coming, as I do from outside the US (I guess that makes me ‘the enemy’...), I can only try to convey how crazy some of your countrymen appear to the rest of the civilised world. Many simply cannot understand it…

Hey Phil its a good thing while tracking across this desert of stupity to hear somebody say something that makes sense.
Todays Amerika is not the America I grew up in.
I try to see where we went off the rails but I can’t figure out who to blame accept….myself and the rest of us citizens.
....and get this..we were warned way back in the late fifties by Eisenhower who said the ‘military industrial’ complex was growing and sooner or later they would control ALL of America.
Easy to see he was right.

Dan as a word of encouragement I want to tell you your speaking the truth in a reasonable way can make a differance. I know this because more than once I’ve entered into Blogs with mostly name calling and started to type what I thought was the truth but I did it without making alot of others wrong and guess what ?
  Yup ..after 3 or 4 days most of the folks were saying intelligent stuff in a mostly polite way.
Give it a try with a group you’ve never typed to, might restore alittle lost faith in human kind.
Good luck to All

If I were you I’d blame the Democratic party. Back in the day they used to have some sort of say - they used to be able to frame discussions. Today, they live by the standards of the most extreme factions that exist in the US. All their stances are a reaction to batsh*t lunatics on the right.

Yet, time and again I see that these factions are not mainstream among US citizens. People like that dude above, whose view of the world is, quite literally, stark-raving mad, make up a small minority.

It seems to me that the Dems dropped their base - and thus allowed American politics to float into la-la land - after they were bought out by corporate interests. Then campaign funding became more important than meaningful stances on meaningful issues.

You guys need to do the world a favor and take your government back. You were once a pillar of democracy; today you’re a symbol of oligopoly. Sort it out - please…

Lets take a look at ‘what it was’ just before Obama was elected.
The dow had plunged to 7600 or so, we were actively involved in 2 wars costing us trillions, the military-industrial-complex had Americans Ever fearful of everyone including ourselves. We were torturing people big time and not just at Gitmo it was so common place troopers posed infront of the chained captives, smiling laughing, having a real good old time !
I’m sure you remember .
Here in America our ‘Bill of Rights’ was gutted and any one could be picked up, imprisoned with no charges and held as long as the feds wanted.
Any searchs by any ‘law enforcement’ was legal because of ‘national security’, and FOX news constantly fueled the flames of fear to allow Chaney and his buddies to rip off couple trillion while the American People were called traitors if they questioned any of these actions
All this done under Republican administration.
The Democrats get into power and immediately I hear repubs bragging about stopping any bills coming from Obamas administration.
Despite this the plunge was halted and we now running 11,000 on the stock market. People from around the world do not hate us AS MUCH as they did. The Bill of rights has been slightly repaired and I’d like to point out theres been No ‘911’ despite my commander in cheif being called a coward.
This rant from an old Vet, 68-69, 856 combat flying hours in the ’ I ” corp (think tall mountains) and well trained warriors trying to shoot us down.
Well I guess I’m done…..least wise until I get some more coffee.

I have been reading the preceding comments with a mixture of saddness and fear. It is unfortunate that we have lost the principles of civility and have been reduce to angry name calling and denegrating verbal slings. It is an effective mechanism to divert attention, away from the real issues of crisis facing our country.. The only positive factor is that we do live in a country were individuals can express thier opinions and beliefs

Well, I think the Obama administration is weak - just like the Clinton administration was weak. And frankly, I think they’re the problem.

Even the fact that you cite the Dow as ‘proof’ that the Dems should be lauded shows how beholden they (and their supporters) are to Wall Street and corporate interests.

Why not look at the unemployment rate? Or the weak-ass financial reform that looks set to allow another crisis? Why not look at the lobbying power corporate interests exert over every policy issue the Obamites pass - from financial reform to health care?

That is where the true problems lie…

Sue, I agree.
Phil, do you really think the Clinton and Obama adminastrations are responsible for our currant financial difficulty ? The Bush’s started the last 2 wars, following the plan Osam Bin Laudin outlined in a public video aired around 1998. He siad ” we will keep the Americans here and fighting Until they are bankrupt, thats how we beat the russians and thats how we will beat the Americans”
Isn’t that exacetly what he did ? Didn’t we follow along with his plan ? Spending Trillions ?
I am a vet who really truely thrilled at Combat with a armed enemy. Read my book “Gods of War”, it can be down loaded free.
  But I’d much rather have a Banker as a leader than the ‘military industrial complex’ prisident Eisenhower warned us about.
You are correct about LOBBYING and corporate interest, and until that is ended we citizens will have no real power of change.
Respectfully
Blackwidow 14
101st ASHB ‘68 ‘69

Yes, Clinton bears a huge amount of responsibility for the current crisis - which really has nothing to do with the wars, but certainly has plenty to do with (a) the repeal of Glass-Steagall and (b) various other sneaky regulations that went on under Slick Willy.

Of course, Bush and his clown-posse did much to exacerbate this and Reagan probably initiated it (or did Carter???), but the Dems are equally responsible.

You guys need to face up to the fact that you live in an oligopoly and that your whole government are beholden to financial and corporate interests. Obama may not have had anything to do with the previous crisis - but you can be sure as hell that he’s going to be to blame for the next one that’s coming just around the corner. He’ll be to blame for that one alright - him and his weak politics and Wall-Street economics team…

This article is part of an ongoing investigation:
.

The Detention Dilemma

The government remains uncertain what to do with its prisoners at Guantanamo Bay.

Get Updates

Stay on top of what we’re working on by subscribing to our email digest.

optional

Our Hottest Stories

  •  
  •  
  •  
  •  
  •  
  •  
  •  
  •  
  •  
  •