NEW YORK – The U.S. government announced Sunday it would prosecute the first Guantanamo Bay detainee to face a civilian trial without its star witness because appealing a judge's ruling excluding him could cause significant delay and inconvenience other witnesses and victims.
Besides, the government said in a letter to U.S. District Judge Lewis A. Kaplan, there was enough evidence without the star witness to convict Ahmed Khalfan Ghailani of conspiring in 1998 to blow up two U.S. embassies in Africa, killing 224 people, including a dozen Americans.
The decision by the government not to appeal clears the way for the trial to resume Tuesday, when opening statements are expected to begin after a jury is chosen from a pool of about 65 potential jurors in Manhattan.
In the letter, Assistant U.S. Attorney Michael Farbiarz said the government disagreed with the judge's decision and would have appealed it under different circumstances. But he said many trial witnesses had planned to come to New York based on the long-scheduled date of the trial and some might even be unwilling or unable to return if the trial faced a significant delay.
He said many victims have already arrived in New York after a long wait to see Ghailani face trial after having traveled significant distances.
"An appeal at this juncture would obviously cause a delay — a delay of uncertain, and perhaps significant, length," the letter said. "Weighing all of the circumstances, the government does not wish to delay the trial in order to take an appeal."
The judge had handed the government a significant setback days earlier when he ruled that the star witness, Hussein Abebe, a former cab driver from Tanzania, could not testify that Ghailani bought explosives from him. The judge said the government learned about Abebe when Ghailani underwent a coercive interrogation at a secret CIA-run camp overseas.
"The court has not reached this conclusion lightly," the judge wrote in his decision. "It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not when it is convenient, but when fear and danger beckon in a different direction."
During that hearing, defense lawyer Peter Quijano tried to show that Abebe felt coerced to testify because he feared law enforcement, but Abebe insisted that was not so.
Another lawyer for Ghailani, Steve Zissou, said the government's decision not to appeal was "a significant victory for the Constitution."
"As we saw during his testimony, Mr. Abebe was hardly a credible witness," Zissou said.
Ghailani has been accused by the government of being a bomb maker, document forger and aide to Osama bin Laden. He has pleaded not guilty and has denied knowing that TNT and oxygen tanks he delivered would be used to make a bomb.
There was little controversy when Ghailani was brought to New York for trial in 2009, but the subject of where to try detainees from Guantanamo Bay, Cuba, became heated after Attorney General Eric Holder announced last November that professed Sept. 11 attacks mastermind Khalid Sheikh Mohammed and four others would be tried blocks from where the World Trade Center stood. Holder later said he was reconsidering the decision.
Associated Press writer Larry Neumeister contributed to this story.