Judge bars testimony in embassy bombing trial

In a blow to the Obama administration's effort to try terror detainees in civilian courts, the federal judge in the embassy bombing trial of Ahmed Ghailani Wednesday barred testimony from a key prosecution witness who was identified during coercive CIA interrogation of Ghailani.

Prosecutors have described the witness - Hussein Abebe, a Tanzanian who sold explosives used in the 1998 embassy bombings to Ghailani - as central to their case, and U.S. District Judge Lewis Kaplan dismissed jurors until next week to give the government time to appeal.

The judge, in his ruling, said Abebe's testimony had to be barred as the fruit of an unconstitutional interrogation. The government did not find Abebe until 2005, after Ghailani gave up his name under what the judge called CIA "duress" and what Ghailani's lawyers have called torture.

"The court has not reached this conclusion lightly," wrote Kaplan. "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."

Apparently anticipating criticism for finding against the government in a terrorism case, Kaplan also noted Ghailani - whom prosecutors have described as a former aide to Osama bin Laden - was unlikely to go free. "His 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, even if he were found not guilty," the judge wrote.

Ghailani is charged with conspiracy and murder in the al-Qaida bombings of U.S. embassies in Tanzania and Kenya, which took 224 lives. Captured in 2004, he is the first CIA and Guantánamo detainee to be tried in a civilian court.He smiled and chatted with his lawyers in court yesterdayWednesday after the ruling was announced.

Abebe, a cabdriver and former miner, was expected to testify that he sold black-market dynamite to Ghailani without knowing that it would be used in a terror attack. Without him, prosecutors have said they will have to rely on circumstantial evidence. Ghailani's defense is that he was duped into helping other conspirators without knowing the plot.

Prosecutors Wednesday declined to comment on whether they will appeal to the Second U.S. Circuit Court of Appeals, but Attorney General Eric Holder said in Washington that the case would go forward, noting that the Justice Department has mounted 300 successful trials in civilian courts.

"I think it's too early to say that at this point the Ghailani matter is not going to be successful," he said. "We intend to proceed with this trial. We're looking at the ruling that the judge has just handed down and we're going to decide exactly how we're going to react."

Legal experts predicted the government will appeal, and said problems with evidence in one case did not doom the idea of civilian prosecutions.

"There will be people who say, 'You put them in civilian courts and the judges take evidence away from the government,' " said James Cohen, a criminal law professor at Fordham University law school. "I don't think that is a fair characterization."

Abebe, in a hearing last month, told Kaplan that he had spoken readily to agents when contacted in 2006, and was anxious to testify. Prosecutors argued that his willingness and the passage of time had purged the taint of the original source of his name, the coerced interrogation of Ghailani.

Ghailani's lawyers praised Kaplan's decision.

"This case will be tried on lawful evidence, not torture, not coercion," said defense lawyer Peter Quijano. "It is the Constitution that won a great victory today."