The government cannot use coercive intelligence interrogations of terrorism suspects to develop evidence and then use the information in a criminal prosecution, a Manhattan federal judge said in a precedent-setting opinion released Thursday in the ongoing embassy bombing trial.
In his ruling, U.S. District Judge Lewis Kaplan explained the reasoning behind his decision last week to bar testimony from Hussein Abebe, the Tanzanian who sold explosives to Ahmed Ghailani that allegedly were used in the 1998 truck bombings of two U.S. embassies in Africa.
Ghailani, the first former Guantánamo detainee tried in civilian court, disclosed Abebe's identity during a harsh CIA interrogation. Prosecutors had argued rules for excluding evidence obtained by coercion should be relaxed for questioning designed to elicit national intelligence. Kaplan, the first judge to face the issue, rejected that.
"If the government is going to coerce a detainee to provide information to our intelligence agencies, it may not use that evidence - or fruits of that evidence that are tied as closely to the coerced statements as Abebe's testimony would be here - to prosecute the detainee for a criminal offense," Kaplan wrote.
Ghailani, captured in 2004, was held in CIA prisons and at Guantánamo until 2009. Tanzanian officials detained Abebe after Ghailani named him. Abebe, who said he figured out what the explosives were used for only when he saw Ghailani's picture on TV in 1998, had never come forward.
In a curious note, Kaplan found that Abebe - who said at a hearing that he was a willing volunteer for the trial - was not telling the truth. Prosecutors had planned to make him the centerpiece of their case against Ghailani.
While describing Ghailani's interrogation as "extremely harsh," the judge also carefully distanced himself from ruling on the legality of the CIA program. He said the agency had authorization from "the highest authority" and the issue was not before him in the Ghailani case.
The opinion's release was delayed by government screeners, who blacked out parts or all of 40 of 60 pages - including descriptions of what the CIA did to Ghailani.
The ruling came on the third day of testimony as FBI agents described how the truck used in the Tanzanian bomb was traced to a used-car broker in Dar es Salaam, who had arranged a sale to two men named Ahmed.
One, called Ahmed Mfupi or "Ahmed the Short," was Ghailani, and the other was Sheikh Swedan, an alleged al-Qaida operative. Defense lawyers say Ghailani was an "errand boy" for the older Swedan, and didn't know about the plot.
But in testimony Thursday, the broker, Sleyyum Juma, said "Ahmed Mfupi" played a principal role.