Judge bars “giant witness” in embassy bombings trial because of enhanced interrogation

posted at 12:55 pm on October 6, 2010 by Ed Morrissey

When Barack Obama and Eric Holder insisted on moving trials for al-Qaeda defendants to the federal court system rather than the military commissions system that Congress has authorized three times, critics wondered how the Department of Justice would get around the lack of Miranda warnings for those captured by military and intelligence personnel outside the US — and especially about how Justice would deal with those cases that rely on evidence produced from “enhanced interrogations.”  Holder and Obama exuded confidence in their ability to prevail in federal court, but a judge has dealt a severe blow to their first attempt at it (via Jeff Dunetz):

A key government witness has been barred from the trial of a Tanzanian man accused in a plot to bomb two U.S. embassies in Africa in 1998, delaying the case until next week.

Federal prosecutors want to call Hussein Abebe, another Tanzanian man, in the criminal case against Ahmed Khalfan Ghailani, the first detainee from Guantanamo Bay, Cuba, to face trial in the U.S.

Mr. Abebe has been expected to testify that he sold dynamite used in the bombing to Mr. Ghailani and that he believed Mr. Ghailani planned to use the explosives for mining.

Defense lawyers had argued that prosecutors learned Mr. Abebe’s identity as a result of statements made by Mr. Ghailani while he was in the custody of the Central Intelligence Agency. While in CIA custody, Mr. Ghailani was subject to so-called enhanced interrogation techniques, which his lawyers have said equated to torture.

Perhaps Abebe isn’t all that important to the case.  Oh, wait …

At a hearing last week, Assistant U.S. Attorney Michael Farbiarz said Mr. Abebe was a “giant” witness for the government and directly linked Mr. Ghailani to the explosives used in the attack.

Prosecutors can appeal the ruling, of course, but it probably won’t do much good.  They knew what the evidentiary rules were when they chose this venue for Ghailani, which is why critics wondered why they bothered to move him out of the commissions system, where he clearly belongs.  The critics had a better understanding of the danger to the case than Holder or Obama did, obviously.  And make no mistake: the judge ruled correctly in this case.

The danger here isn’t just to the case, either.  The DoJ will now go to an appeals court in order to carve out exceptions to Miranda and interrogation limits, which won’t just apply to AQ terrorists captured outside of the country.  Those exceptions will apply to everyone in the federal system.  The entire point of this vanity trial in federal court is for Obama to claim that (a) Bush was wrong when he pushed for military commissions (even though Obama plans to use them in other cases) and (b) that American civil courts can handle any kind of case from any jurisdiction, using the same laws that apply to US citizens.  If they go to the appellate court and argue for special treatment of Ghailani and others in his circumstance, it’s an explicit admission that those laws don’t work in these situations, and that the court was the wrong venue from the beginning.

Congress authorized the military commissions to deal with these cases in part to keep these needed exceptions from tainting the process for regular criminal trials for American citizens and residents.  The point of war is not to try the generals or the foot soldiers, but to put them out of commission for good through the use o the military.  That’s where this case belongs.


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Hey, don’t blame holder and his boss for this. Nobody could have seen this coming. Besides it’s Bush’s fault. Oh look a puppy.

Oldnuke on October 6, 2010 at 12:58 PM

Those exceptions will apply to everyone in the federal system.

This is a serious concern. This could water down constitutional rights for all Americans in federal courts. Good job!! /s

Firefly_76 on October 6, 2010 at 1:00 PM

D’oh!

cmsinaz on October 6, 2010 at 1:00 PM

Civilian trials for international terrorists are such a great idea… No one could have possibly forseen these kinds of technicalities coming up. Oh wait, we all did.

Scrappy on October 6, 2010 at 1:00 PM

Jackass

ladyingray on October 6, 2010 at 1:00 PM

*sigh*

capejasmine on October 6, 2010 at 1:01 PM

You treat a person in custody differently when you are planning to put them on trial than you do when you want to get the information on where to send the troops and drones. Imagine that!

Sekhmet on October 6, 2010 at 1:03 PM

You don’t think Holder and Obama knew going in that this would be the outcome???

Time to get real.

IronDioPriest on October 6, 2010 at 1:04 PM

When the new Congress is sworn in they should prohibit these cases from being subject to the jurisdiction of Civil and Criminal Courts. They have the authority to do so and they should exercise it.

Sporty1946 on October 6, 2010 at 1:05 PM

This is a serious concern. This could water down constitutional rights for all Americans in federal courts. Good job!! /s

Firefly_76 on October 6, 2010 at 1:00 PM

Imagine how handy this will be when the Evil Polluting Carbon Emitters vs. Gaia trials begin.

Lily on October 6, 2010 at 1:06 PM

They knew what the evidentiary rules were when they chose this venue for Ghailani, which is why critics wondered why they bothered to move him out of the commissions system, where he clearly belongs.

Thank God the “adults” are in charge.

Baxter Greene on October 6, 2010 at 1:06 PM

Shocking.

Vera on October 6, 2010 at 1:07 PM

The Bad News Bears Run Washington.

Cindy Munford on October 6, 2010 at 1:07 PM

You don’t think Holder and Obama knew going in that this would be the outcome???
Time to get real.
IronDioPriest on October 6, 2010 at 1:04 PM

Actually, I don’t think they knew this would be the outcome.

I think they’re just that stupid and / or idealogically blind to reality / reason.

Vyce on October 6, 2010 at 1:07 PM

As Dr. Thomas Sowell might say, the unconstrained vision of man meets reality. This is what happens when the American people elect an professorial leftist zealot. Obama and his buddies need to be kept as far away from the U.S. legal system as possible.

WordsMatter on October 6, 2010 at 1:08 PM

This is a serious concern. This could water down constitutional rights for all Americans in federal courts. Good job!! /s

Firefly_76 on October 6, 2010 at 1:00 PM

To Dear Liar and Eric Holder, that’s a feature, not a bug.

rbj on October 6, 2010 at 1:09 PM

Hey, don’t blame holder and his boss for this. Nobody could have seen this coming. Besides it’s Bush’s fault. Oh look a puppy.

Oldnuke on October 6, 2010 at 12:58 PM

SQUIRREL!

fossten on October 6, 2010 at 1:09 PM

“Justice……you want Justice….

….you’re not gonna get it, he he.

Justice…….you want Justice….

….unless you’re downtrodden forget it.”

The tune/ditty we’ll be hearing over and over and over again until January 20, 2013 from the DOJ.

PappyD61 on October 6, 2010 at 1:10 PM

Barack Obama and Eric Holder

Racists against America.

upinak on October 6, 2010 at 1:10 PM

Are you sure that they want to “win” these cases?

d1carter on October 6, 2010 at 1:10 PM

This is just another example of liberal talking points coming smack up against reality.

It’s an article of faith on the Left that Bush conspired with the Rethuglikkans in Congress to create an extra-judicial system of military tribunals to justify putting away hundreds of men who are probably harmless. They think the military tribunals are fig-leaf trials, created to give the illusion of “justice” to accused terrorists when they are actually rigged to ensure convinctions and executions or lengthy sentences. They believe that trying Muslims in this system does nothing but inflame Muslim sentiment against America and create more terrorists.

Another favorite liberal talking pojnt, which Obama himself uses incessantly, is that our civilian justice system is practically perfect and is the envy of the world — in fact, it is one of the few things about America that liberals see as good. So if we do not use it to try suspected terrorists, we are denying one of the essential things that makes America great.

rockmom on October 6, 2010 at 1:11 PM

Gee, another lawyer from Havuhd Law School.

Kaplan, Lewis A.

Born 1944 in Staten Island, NY

Federal Judicial Service:
Judge, U. S. District Court, Southern District of New York
Nominated by William J. Clinton on May 5, 1994, to a seat vacated by Gerard Louis Goettel; Confirmed by the Senate on August 9, 1994, and received commission on August 10, 1994.

Education:
University of Rochester, A.B., 1966
Harvard Law School, J.D., 1969

Del Dolemonte on October 6, 2010 at 1:12 PM

Are you sure that they want to “win” these cases?

d1carter on October 6, 2010 at 1:10 PM

+10

coldwarrior on October 6, 2010 at 1:14 PM

The DoJ will now go to an appeals court in order to carve out exceptions to Miranda and interrogation limits, which won’t just apply to AQ terrorists captured outside of the country. Those exceptions will apply to everyone in the federal system.

the slippery slope begins…

cmsinaz on October 6, 2010 at 1:15 PM

Ya mean that Barry and Holder aren’t the legal geniuses that they pretend to be?

Or is this the outcome they wanted in the first place?

GarandFan on October 6, 2010 at 1:18 PM

Holder and Obama constitute a clear and present danger to this country. For whatever reasons they have encouraged and aided our enemies, alienated our allies, and are mechanically destroying America as it was founded in favor of a fascistic socialism. Hopefully we can limit the damage in November and stop the agenda 012 or we are in for a very long, perhaps lifetime decline.

Rea1ityCheck on October 6, 2010 at 1:18 PM

OT: 11 foreign countries are now challenging the Arizona law…with DOJ consent. WTH

d1carter on October 6, 2010 at 1:19 PM

Won’t the just change their minds and do this in a military court? Or leave it to the next administration in 2013.

Cindy Munford on October 6, 2010 at 1:27 PM

d1carter on October 6, 2010 at 1:19 PM

nice

cmsinaz on October 6, 2010 at 1:27 PM

OT: 11 foreign countries are now challenging the Arizona law…with DOJ consent. WTH

d1carter on October 6, 2010 at 1:19 PM

They’re just filing amicus briefs. Should be unsurprising, considering immigration law is similar to foreign policy.

crr6 on October 6, 2010 at 1:29 PM

Ya mean that Barry and Holder aren’t the legal geniuses that they pretend to be?
Or is this the outcome they wanted in the first place?
GarandFan on October 6, 2010 at 1:18 PM

BOTH

LegendHasIt on October 6, 2010 at 1:30 PM

This is BHO’s vision of the new ‘melting pot’, even at the expense of justice.

madmonkphotog on October 6, 2010 at 1:32 PM

Holder and Obama constitute a clear and present danger to this country.

Rea1ityCheck on October 6, 2010 at 1:18 PM

Did anyone else notice that wingnuts love to use the “clear and present danger” language from Schenck in random places? Is it because it makes the post sound more official or something?

crr6 on October 6, 2010 at 1:38 PM

They’re just filing amicus briefs. Should be unsurprising, considering immigration law is similar to foreign policy.

crr6 on October 6, 2010 at 1:29 PM

They have no say as to the wishes of the American People. This bunch of jackasses that you adore are treasonous.

kingsjester on October 6, 2010 at 1:39 PM

When we put Obama and Holder on trial, let’s use the commission system.

Adjoran on October 6, 2010 at 1:46 PM

Read D’Souza’s new book, The Roots of Obama’s Rage…it explains much…

d1carter on October 6, 2010 at 1:47 PM

Imagine how handy this will be when the Evil Polluting Carbon Emitters vs. Gaia trials begin.

Lily on October 6, 2010 at 1:06 PM

There won’t be trials. Think little red “easy” buttons.

txhsmom on October 6, 2010 at 1:57 PM

And make no mistake: the judge ruled correctly in this case.

Wait, wait. A witness who’s testimony can convict the defendant is excluded because the authorities got the tip to look for him from something “tainted”, even if the testimony is on the up and up?
If that is correct, then our legal system is wrong.

Count to 10 on October 6, 2010 at 1:57 PM

Color me shocked that Obama and Holder are both such crappy lawyers they couldn’t foresee their failures in trying these guys in a civilian court.

Of course, I’m sure some critics will believe they intentionally did this to win favor, by watching some of these people go free with not guilty verdicts.

I really think they’re just that inept.

ButterflyDragon on October 6, 2010 at 1:59 PM

Obama and Holder are trifling with national security by engaging in this ‘vanity trial”. They are also establishing their utter incompetence as lawyers, and their utter venality as politicians.

novaculus on October 6, 2010 at 2:00 PM

In the 1887 congress passed the Edmunds Tucker act. This act deprived the Mormon church of all property not used for religious purposes and all cash in excess of $50,000. The government just confiscated it.

It was challenged in court and went all the way to the Supreme Court. TSCOTUS ruled that the law was not constitutional but the constitution did not apply to US territories. Utah was a territory.

The Mormon people were US citizens. Driven from their homes in New York, Ohio, Missouri and Illinois. They had to rebuild their lives each time. When they left Illinois they were determined to leave the United State and headed for Mexican territory in the west. On their way the war with Mexico broke out and the military pressed hundreds of Mormon men into the “Mormon Battalion”. Now they were forced to serve the very country that would not protect their constitutional rights. And to add insult to injury, they had to help turn their new home into US territory, the very thing they were trying to escape.

If the constitution does not apply to Mormons in the Utah Territory, who were US citizens, then it certainly does not apply to foreign nationals who are waging war against the US while incarcerated on foreign soil.

It it does, the Mormon Church should get all their property back now.

The Rock on October 6, 2010 at 2:07 PM

Obama and his buddies need to be kept as far away from the U.S. legal system as possible.

WordsMatter on October 6, 2010 at 1:08 PM

No, they just need to be on the other end of it.

Aviator on October 6, 2010 at 2:08 PM

Count to 10 on October 6, 2010 at 1:57 PM

I don’t know all the details of this particular case. But the principle is called “fruit of the poisonous tree.” If they couldn’t have found him independently from the tainted evidence (i.e., coerced confession), then the fruit of that evidence (the tree) is tainted also and cannot be used. This result absolutely predictable.

Firefly_76 on October 6, 2010 at 2:15 PM

Did anyone else notice that wingnuts love to use the “clear and present danger” language from Schenck in random places? Is it because it makes the post sound more official or something?

crr6 on October 6, 2010 at 1:38 PM

Ever notice that pseudo-intellectuals like to take any opportunity to prove they aren’t really lonely losers with bad ideas? Does it make the pain go away if you quote case law?

http://www.nytimes.com/2010/09/24/opinion/24krugman.html?_r=2&src=me&ref=homepage

Holy Crap! Paul Krugman is a secret Wingnut!

Asher on October 6, 2010 at 2:17 PM

Wow. I didn’t see that coming.

bho

DuctTapeMyBrain on October 6, 2010 at 2:19 PM

Ed Said:
The critics had a better understanding of the danger to the case than Holder or Obama did, obviously.

You’re assuming they want these terrorists convicted. If you realize that they’re goal is to humble the US, it makes perfect sense.

jnelchef on October 6, 2010 at 2:28 PM

Did anyone else notice that wingnuts love to use the “clear and present danger” language from Schenck in random places? Is it because it makes the post sound more official or something?

crr6 on October 6, 2010 at 1:38 PM
_r=2&src=me&ref=homepage

Holy Crap! Paul Krugman is a secret Wingnut!

Asher on October 6, 2010 at 2:17 PM

Oof. Pretty big logic fail there, Asher.

“Some Wingnuts do X” does not mean “Only Wingnuts do X.”

crr6 on October 6, 2010 at 2:31 PM

Good analysis, The Rock.

I think it should be returned with interest. And just imagine the screams from the gay marriage types….

I’d love to see that conversation with a liberal. Gee, support the eeeeevil Mormon church to get rights for terrorists, or no rights for terrorists? I bet Kos would rather give the Mormons back their money to free a terrorist.

Vanceone on October 6, 2010 at 2:32 PM

Oof. Pretty big logic fail there, Asher.

“Some Wingnuts do X” does not mean “Only Wingnuts do X.”

crr6 on October 6, 2010 at 2:31 PM

Hmmm, except you didn’t say “some wingnuts” did you?

Did anyone else notice that wingnuts love to use the “clear and present danger” language from Schenck in random places?

Firefly_76 on October 6, 2010 at 2:35 PM

It it does, the Mormon Church should get all their property back now.

The Rock on October 6, 2010 at 2:07 PM

Mmmm, can you say “reparations.”

Kenosha Kid on October 6, 2010 at 2:39 PM

Did anyone else notice that wingnuts love to use the “clear and present danger” language from Schenck in random places?

I didn’t say “all” or “only.” Either way Asher read that in to prove his point.

crr6 on October 6, 2010 at 2:39 PM

I didn’t say “all” or “only.” Either way Asher read that in to prove his point.

crr6 on October 6, 2010 at 2:39 PM

And I certainly didn’t write “if you say ‘clear and present danger’ you are a wingnut,” which is what Asher seems to have read in. Apparently he’s not a very good reader.

crr6 on October 6, 2010 at 2:41 PM

Did anyone else notice that wingnuts love to use the “clear and present danger” language from Schenck in random places? Is it because it makes the post sound more official or something?

crr6 on October 6, 2010 at 1:38 PM

I guess it all depends on the definition of “is”, doesn’t it? Parse those words, Skippette.

kingsjester on October 6, 2010 at 2:44 PM

The DoJ will now go to an appeals court in order to carve out exceptions to Miranda and interrogation limits, which won’t just apply to AQ terrorists captured outside of the country. Those exceptions will apply to everyone in the federal system.

Very bad for the individual but do you think cities like Chicago would complain about being given a little extra “leeway” in interrogations? How many millions have been handled out in “police torture” cases by Chicago alone? How do we not know that this wasn’t the goal of the Chicago Machine all along?

journeyintothewhirlwind on October 6, 2010 at 2:51 PM

The US military, doing the job the American justice department will not. It’s disgusting when a former terrorist defender is now working as the Attorney General.

dthorny on October 6, 2010 at 3:03 PM

Hey liberals! How’s that hopey-changey thing working for you?

ultracon on October 6, 2010 at 3:22 PM

the Mormon Church should get all their property back now. The Rock on October 6, 2010 at 2:07 PM

Mormonism: the only religion ever driven out of the United States, even if only temporarily (dang!).

Maybe Islam will be the second religion to be driven out, and with God’s help, we can keep it out.

Akzed on October 6, 2010 at 3:30 PM

Lot of fist bumps and high fives around the WH, things going just as planned.

What does treason consist of, are we there yet.

Wait, the jurors should be from the countries that want to interfere with the AZ law, that will work, WTF!!!!

concernedsenior on October 6, 2010 at 3:38 PM

That’s a Peace Prize!!!

BigWyo on October 6, 2010 at 3:45 PM

crr6 on October 6, 2010 at 2:39 PM

crr6 on October 6, 2010 at 2:41 PM

Then stripped of all motivational inferences, mind articulating the point of what you did say? It has eluded me. Right up there with, “ever notice how wingnuts part their hair on the right?”

Barnestormer on October 6, 2010 at 4:13 PM

crr6 -just stating reality as clearly and simply as I see it to not be misuderstood. clear and present meaning exactly as stated. disagree with perception- then present refuting fact; ridiculing syntax is refuge of empty argument. No official anything from me, rarely engage in answers, but FYI sometimes a penny found is just and only that that, a penny.

Rea1ityCheck on October 6, 2010 at 4:15 PM

Did anyone else notice that wingnuts love to use the “clear and present danger” language from Schenck in random places? Is it because it makes the post sound more official or something?

crr6 on October 6, 2010 at 1:38 PM

What makes you so sure they are quoting the Schenck case? They could be citing the 1994 movie of the same name.

By the way, I wasn’t aware that President John F. Kennedy-a Democrat-was a “wingnut”. He used that phrase many years before you were even born, in his speech in October of 1962 during the Cuban Missile Crisis.

missiles in Cuba add to an already clear and present danger -although it should be noted the nations of Latin America have never previously been subjected to a potential nuclear threat.

Del Dolemonte on October 6, 2010 at 4:48 PM

OT: 11 foreign countries are now challenging the Arizona law…with DOJ consent. WTH

d1carter on October 6, 2010 at 1:19 PM
They’re just filing amicus briefs. Should be unsurprising, considering immigration law is similar to foreign policy.

crr6 on October 6, 2010 at 1:29 PM

“Just” filing 11 amicus briefs — briefs that will have to be reviewed and in some cases, responded to, by AZ’s lawyers — at significant cost to AZ.

But by all means, let’s allow every Third World potentate and his half-brother to chime in on this state law issue. After all, illegally entering Arizona is a natural human right of all Citizens of the World, isn’t it, Miss Legal Expert?

AZCoyote on October 6, 2010 at 4:57 PM

Testing

Sonosam on October 6, 2010 at 4:59 PM

I so miss President Bush.

Mason on October 6, 2010 at 5:14 PM

Testing

Sonosam

They certainly are. Hmmmm…’release them all’ is a 2012 win win strategy..eh?

percysunshine on October 6, 2010 at 5:16 PM

OT: 11 foreign countries are now challenging the Arizona law…with DOJ consent. WTH

d1carter on October 6, 2010 at 1:19 PM

They’re just filing amicus briefs. Should be unsurprising, considering immigration law is similar to foreign policy.

crr6 on October 6, 2010 at 1:29 PM

“Just” filing 11 amicus briefs — briefs that will have to be reviewed and in some cases, responded to, by AZ’s lawyers — at significant cost to AZ.

But by all means, let’s allow every Third World potentate and his half-brother to chime in on this state law issue. After all, illegally entering Arizona is a natural human right of all Citizens of the World, isn’t it, Miss Legal Expert?

AZCoyote on October 6, 2010 at 4:57 PM

I’m just curious-how unusual is it for a foreign government to files these briefs in a case about US Constitutional law?

And another question-the “foreign countries” are all from Latin America. To be exact, Mexico was joined by Argentina, Bolivia, Brazil, Chile, Costa Rica, Ecuador, El Salvador, Nicaragua, Paraguay and Peru.

Mexico’s interest is perfectly understandable, as 62% of illegal immigrants to the US come from that country. But
Guatemala, which ranks 3rd in the number of illegal to the US, did not join them in filing, and Honduras, which ranks 4th, also stayed away.

But none of those other LA countries’ citizens pose an illegal immigration threat to the US. Where are they suddenly so interested in this?

Del Dolemonte on October 6, 2010 at 5:51 PM

Del Dolemonte on October 6, 2010 at 5:51 PM

They’re doing whatever they can to knock the Big Dog off the porch. And that’s fine with Barry and Eric.

kingsjester on October 6, 2010 at 6:00 PM

I didn’t say “all” or “only.” Either way Asher read that in to prove his point.
crr6 on October 6, 2010 at 2:39 PM

You failed to use a qualifier like “some”, your omission of a clarifying, qualifying word makes your statement to read “ALL wingnuts love to use the “clear and present danger””

One would assume the absence of the qualifying /clarifying “some” was intentional or you’re an idiot.

And I certainly didn’t write “if you say ‘clear and present danger’ you are a wingnut,”

Actually you did. As shown above you clearly stated “all wingnuts love to use the “clear and present danger”

Your only wiggle room is the “only”. You did not say “only wingnuts love to use the “clear and present danger””

which is what Asher seems to have read in. Apparently he’s not a very good reader.
crr6 on October 6, 2010 at 2:41 PM

I don’t know what Asher reading/comp level is, however my reading/comp level is 12.9, significantly above yours.

DSchoen on October 6, 2010 at 6:20 PM

Since when do we allow ANY THIRD WORLD COUNTRY to inject themselves in our judicial system that involves our states and fed gov, and our Gov. justs stands by and lets them.

Oh forgot the Dems. are in charge and have been since 2007
SSSHHHH.

Is it time to impeach yet???

concernedsenior on October 6, 2010 at 6:56 PM

Did Obama even take Constitutional law and Criminal Law and Procedure at Haaahvaaahd Law School? Somehow I doubt such courses would be required and somehow I doubt that Obama would want to learn about the evil system set up by white slaveholders to oppress blacks and minorities. Just sayin’.

eaglewingz08 on October 6, 2010 at 7:21 PM

What else could you expect when you put terrorists’ fates in the hand of liberal civilian judges?

MaiDee on October 6, 2010 at 7:36 PM

“The point of war is not to try the generals or the foot soldiers, but to put them out of commission for good through the use o the military. That’s where this case belongs”

Um, I know what you’re saying, but you’re not exactly saying it. The military puts the enemy out of comission for good by killing them. I know that’s not what you’re advocating in this case, but that’s how it reads. You know how liberals can’t understand context when a conservative is expressing himself….

brainy435 on October 6, 2010 at 11:09 PM