Fruit of the Poisonous Tree

By lex, on October 6th, 2010

Eric Holder’s plan to try one of al Qaeda’s Kenyan embassy bombers in civil court has run into a substantial obstacle:

The judge in the first civilian trial of a former Guantanamo inmate has ruled that a key US government witness cannot testify, in a blow to prosecutors.

Defendant Ahmed Khalfan Ghailani denies helping al-Qaeda kill 224 people in the 1998 US embassy bombings in Africa.

The judge ruled the witness could not testify as he had been named by Mr Ghailani while he was “under duress”.

A BBC correspondent says the move complicates plans to try Guantanamo detainees in civilian courts…

In Washington, Attorney General Eric Holder said he was confident the justice department intended to proceed with the trial and was reviewing the ruling.

The BBC’s Laura Trevelyan in New York says the judge’s decision – if it stands – is a major setback for the US government’s case.

Without Mr Abebe’s testimony, prosecutors will struggle to put their evidence to the jury, our correspondent adds.

Mr Ghailani was detained in Pakistan in 2004, taken to a secret CIA facility and then to Guantanamo Bay in 2006.

He was subject to what the government refers to as “enhanced interrogation” by the CIA. His lawyers say he was tortured.

The government had already conceded that evidence obtained from Mr Ghailani in CIA prisons or at Guantanamo was inadmissible.

In the instant case, this is not so much an issue of Bush era interrogation techniques – although of course it also is that – as to prosecutorial competence and judgment.

With Ghailani’s confession inadmissible, and Abebe’s testimony thrown out by the judge, there’s a pretty good chance that the government’s will lose the case, leaving Ghailani to walk. Unless, of course, Ghailani is reverted back to a military court. Which – and I’m no lawyer – seems to me might run afoul of the Fifth Amendment’s protections against double jeopardy, especially in light of the fact that the US is the same “sovereign” in both federal and military courts.

But the Holder Justice Department is chock full of lawyers, and it’s hard to imagine that they had never heard of the “fruit of the poisonous tree” exclusionary rule. If they knew that Ghailani’s admissions would be inadmissable, hen they had pretty good reason to believe that Ghailani fingering Abebe as a witness could be thrown out as well. In which case trying the terrorist in a civil federal court – as opposed to a military tribunal – was not only a colossal waste of time and money, but runs the very real risk that a very bad guy goes free to celebrate his murderous accomplishments. (Like that could ever happen.*)

It’s almost like they wanted to lose. Which in the purest sense of things would of course “reinforce the rule of law” while slapping Alberto Gonzales’ face. But that happy accomplishment will come at the cost of letting a murderer of over 200 people go free, and call that what you will, it doesn’t much sound like justice.

To be fair, one should never attribute to malice what can be explained by incompetence.

Either way, we’re in the very best of hands.

* 10-11-2018 Link Gone; no replacements found – Ed.

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Filed under Best of Neptunus Lex, by lex, Carroll "Lex" LeFon, Carroll LeFon, Lex, Politics and Culture

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