Ruling threatens civilian prosecutions of terrorism defendants

The Obama administration’s prosecution of major foreign terrorism suspects in U.S. civilian courts has hit another roadblock, after a judge in New York disallowed testimony this week from the government’s key witness against a prisoner about to stand trial in connection with the U.S. Embassy bombings in Africa in 1998.

The trial of Ahmed Khalfan Ghailani is being closely watched as a test case for the legal system over whether a “high-value” detainee held in a secret CIA location and later at the U.S. prison in Guantanamo Bay, Cuba, can be tried and convicted under the rules of American criminal law.

The dispute sits at the heart of this still-unresolved debate over whether terrorism suspects should be held as military prisoners or tried as criminals. And the judge’s ruling in New York deals another political blow to the Obama administration, which has said Guantanamo Bay should be closed and the suspected terrorists tried in this country.

In Wednesday’s ruling in the Ghailani case, U.S. District Judge Lewis Kaplan said he was unwilling to relax the law because of the special circumstances surrounding the capture and questioning of the accused embassy bomber. “The Constitution is the rock upon which our nation rests,” he said.

The case was nearing the end of jury selection, and prosecutors said they planned to put Hussein Abebe on the witness stand to testify that he sold explosives to Ghailani that were used in the embassy bombing. But the judge said Abebe’s testimony was tainted and could not be used because prosecutors learned of him only as a result of coerced statements taken from Ghailani in the CIA prison.

Earlier this year, the Obama administration said it was reconsidering its plan to try the top Sept. 11 attack plotters in New York after an outcry in New York and Washington.

“This is a serious setback, and it will reverberate through the broader Guantanamo debates,” Matthew Waxman, a Columbia University law professor and an expert on national security law, said of the Ghailani ruling. “This case has particular symbolic and precedential value, because Ghailani was the first Guantanamo detainee transferred to New York for prosecution.”

Benjamin Wittes, an expert on terrorism law, agreed. “If they can’t get this one done, it will be very hard for them to argue you ought to try the true ‘high-value’ detainees in federal court,” he said.

But Atty. Gen. Eric H. Holder Jr. said prosecutors planned to press forward, and prosecutors were expected to either appeal Kaplan’s ruling or take Ghailani to trial without the benefit of Abebe’s testimony. “We intend to proceed with this trial,” Holder said.

The Ghailani case is not the first terrorism prosecution to be jeopardized because of torture issues.

A year ago, in August 2009, Mohammed Jawad, arrested in 2002 on allegations that he killed two U.S. soldiers and their interpreter in Afghanistan, was ordered released and returned home to Afghanistan after U.S. District Judge Ellen S. Huvelle in Washington threw out his supposed confession on the grounds that he talked only after being tortured.

According to the American Civil Liberties Union attorneys who represented Jawad, he “was subjected to repeated torture and other mistreatment and to a systematic program of harsh and highly coercive interrogations designed to break him physically and mentally.” The lawyers said he tried to kill himself by slamming his head against his cell wall.

Administration critics say that the ruling in the Ghailani case strongly supports their position that suspected terrorists should not be tried in U.S. civil courts, but rather should be prosecuted in military commissions at Guantanamo Bay or held there indefinitely as “enemy combatants.”

“The administration’s policy was a product of an unwise campaign promise,” said Sen. Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee. “And the safety of the American people requires it be abandoned.”

david.savage@latimes.com

richard.serrano@latimes.com