Major Terror Trial Ruling -- Judge Says Evidence Acquired by Coercion Is Inadmissable

This October, Judge Lewis Kaplan of the Southern District of New York issued a ruling that rendered coercively procured evidence inadmissible in courts. The ruling was made in relation to the first ‘enemy combatant’ terrorist trial to be held in U.S. federal courts. At issue in the ruling was the testimony of Hussein Abebe, a Tanzanian miner who was expected to testify that he had sold five crates of dynamite to Ahmed Khalfan Ghailani prior to the embassy bombings that Ghailani is alleged to have carried out in Kenya and Tanzania in 1998. Subsequent to his capture in 2002, Ghailani was held, tortured and interrogated by the CIA, and Abebe’s name is said to have been obtained during that time. Given this, the court in Ghailani had to decide whether to admit evidence that may have been obtained through coercive interrogation, including torture.

Kaplan’s ruling was ultimately grounded in the fact that the prosecution was unable to prove that Abebe’s name had not been procured coercively. Accordingly, the ruling signaled Kaplan’s unwillingness to risk any chance of allowing at least this piece of evidence from entering the court. It remains to be seen whether other questionable evidence will undergo similar scrutiny. For it may just be the case that Kaplan’s ruling on Abebe signals the extent to which he is willing to rule on this issue, thereby providing the government with a green light to present other potentially questionable evidence.

At one level, Judge Lewis Kaplan’s decision can be read as unremarkable. After all, the ruling naturally extends from the fifth-amendment right that protects against self-incrimination.

Public responses to Kaplan’s ruling, however, suggest otherwise; the decision seems to have come as a surprise to folks on all sides of the political spectrum, suggesting that many have become accustomed to the idea that terrorism-related issues elicit ‘exceptional’ responses, all too often arrived at outside of and in exception to the rule of law.

These reactions might also be explained by the fact that, just a few months ago, it was the same Judge Kaplan who rejected a motion to dismiss Ghailani’s trial when defense argued he had been deprived of his right to a speedy trial. For those who imagined Kaplan’s rejection of that issue to be representative of his stance in future constitutional challenges, the ruling on inadmissible evidence would indeed come as a surprise.  

The ruling on unlawful evidence was also supplemented by a second statement; Kaplan explained that even if Ghailani was not found guilty in this case, his ‘enemy combatant’ status would probably permit his detention “as something akin to a prisoner of war until hostilities between the United States and Al-Qaeda and the Taliban end.” Accordingly, Ghailani’s trial seems to have become a show trial, particularly insofar as the outcome has already been established as inconsequential. He will probably face a life-sentence regardless of whether he is found guilty.

Many civil libertarians see the possibility of post-acquittal detention as counteracting the effect of Kaplan’s ruling on inadmissible evidence, but skeptics of this and other enemy combatant terrorist trials (who have long questioned whether U.S. federal courts are prepared to ‘handle’ or rather ‘guarantee a guilty verdict’ in these cases) will probably see the decision as providing a much needed safety net. For such skeptics, the federal court system is constructed as ‘dangerous’ not because they worry that courts are incapable of applying the law, but rather, because courts are seen as being too good at doing precisely that. The federal court system is therefore constructed as being a little too lawful in its dealings with ‘terrorists.’