Prosecutors and defense lawyers in the trial of accused U.S. Embassy bombing conspirator Ahmed Khalfan Ghailani are set to square off over a key government witness today before Southern District of New York Judge Lewis A. Kaplan.
Kaplan is holding a hearing on whether the government can call the witness, who is expected to help link Ghailani to the bombing of the U.S. Embassy in Tanzania in 1998.
The hearing is expected to be open initially, but the bulk of the proceeding is likely to be closed.
The procedure is a follow-up to a decision by the judge issued on Aug. 17 on whether the witness's testimony should be barred because the discovery of his identity is the fruit of a poisonous tree -- "extremely harsh interrogation methods" used by the CIA against Ghailani.
Jury selection is now scheduled for Sept. 22 in the trial of Ghailani, the first Guantanamo detainee prosecuted in the civilian justice system. He is accused of being part of an al-Qaida conspiracy in which the U.S. Embassies in Tanzania and Kenya were bombed on Aug. 7, 1998, killing 224 people.
The prosecution has vowed not to use any statements made by Ghailani under interrogation unless he testifies at the trial. But they argue the witness should nonetheless be allowed to testify even though his identity was learned during the interrogation of Ghailani.
Two prosecution arguments in favor of this position were rejected by Kaplan in his August opinion that was released on Sept. 2: first that the identity of the witness would have been discovered anyway by lawful, independent means and, second, that the identity of the witness falls outside the "core application" of the fruit of the poisonous tree doctrine.
But Kaplan ordered today's hearing to address a third government argument -- that the witness's testimony should be allowed because it is "sufficiently attenuated" from the alleged illegality.
Read the defense's motion to exclude the witness's testimony, the government's answer, and the defense's reply brief.
Kaplan said in his August ruling that he would hear from "any FBI, CIA or Tanzanian witnesses the government elects to call," so he can evaluate (1) "the stated willingness of the witness to testify," (2) "the role played by the illegally seized evidence in gaining his cooperation," and (3) "the proximity of the illegal behavior, the decision to cooperate and the actual testimony at trial."
The judge said there was no evidence contradicting the government assertion that "national security motivated the CIA interrogations that elicited Mr. Ghailani's statements" about the witness.
The judge said the CIA was pursuing "the identities and methods of others involved in those bombings, including the source of the explosives."
In a statement he made in Guantanamo, Ghailani said he purchased the TNT for the bombing from a man named "Hussein" in Arusha in northern Tanzania.
The burden is on the government to make its attenuation argument on the witness, a Tanzanian national who was arrested on Aug. 13, 2006, flown to a distant location, questioned by Tanzanian officials and FBI officials for about a week, and was released and faces no criminal exposure in Tanzania.
But the judge said the circumstances of the initial questioning of the witness "perhaps suggest that he is not simply a public spirited citizen" who had come forward of his own volition.
The prosecution, led by Michael Farbiarz, chief of the Southern District's terrorism and international narcotics unit, is expected to last from eight to 12 weeks.
In papers filed Sept. 8 on a dispute over whether the government should produce a witness list in advance of trial, defense attorneys Peter Quijano of Quijano & Ennis, Michael K. Bachrach and Steve Zissou provided a glimpse of a prosecution they say is "based upon circumstantial evidence linking discreet pieces of evidence to Mr. Ghailani's alleged involvement."
"There will, however, be no smoking gun," the lawyers write. "No allegation that Ghailani played a role as a leader or organizer of the conspiracy. Indeed, the government has already specifically stated that it will not even allege that Mr. Ghailani was a member or associate of al Qaida."
Kaplan ruled on Monday that the government must produce a witness list in advance of trial.