NEW YORK – A judge on Thursday said he might not decide for weeks whether the harsh interrogation of the first Guantanamo detainee to be tried in civilian courts means the government's biggest witness can't testify at his trial on charges stemming from the deadly bombings of two U.S. embassies in Africa.
U.S. District Judge Lewis A. Kaplan's decision not to rush a ruling in the case against Ahmed Khalfan Ghailani after a three-day hearing in Manhattan left prosecutors scrambling to configure their case with and without the testimony of Hussein Abebe, who said he sold Ghailani explosives.
The judge said he might not rule until after opening statements, scheduled for Oct. 4.
It was the kind of legal hurdle that was anticipated when it was decided to bring some Guantanamo Bay, Cuba, detainees to U.S. civilian courts with evidence that was sometimes collected for the purpose of preventing future terrorism rather than building a criminal case.
The judge seemed unimpressed with the testimony of Abebe and appeared to be daring Assistant U.S. Attorney Michael Farbiarz to dump him as a witness after Abebe concluded two days on the witness stand.
"Sometimes the desirability of witnesses is re-examined in light of testimony in preliminary proceedings," the judge said.
Farbiarz, who described Abebe as a "giant witness" for the government a day earlier, defended Abebe's performance at a hearing meant to decide if he can be used as a witness even if authorities might never have located him without statements made by Ghailani at a CIA-run camp overseas where he was interrogated.
"I think this is a strong witness, and I think of course we want the jury to hear from him," Farbiarz said.
He called Abebe's testimony about his interrogation by Tanzanian authorities and later the FBI "incredibly important."
Authorities learned about Abebe only after Ghailani made statements when he was subjected to enhanced interrogation at the CIA-run camp after his 2004 arrest. After the Sept. 11, 2001, attacks, the CIA used 10 harsh methods, including waterboarding, a form of simulated drowning.
Ghailani was 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.
Repeatedly, the judge had interrupted questioning by lawyers over two days to ask Abebe whether he ever thought he was being picked up by law enforcement authorities in 2006 to be questioned about the 1998 embassy bombings, which killed 224 people, including a dozen Americans. Each time, Abebe said he had not.
On Thursday, the judge asked him: "Did you ever think for even a moment that (the fact that) you were being arrested and flown to another city by all these men connected with the police just might possibly have something to do with your having sold the explosives to Ghailani?"
"I did not remember at all," answered Abebe, who said his brother-in-law in 2006 was the chief justice of Tanzania and his father-in-law had represented Tanzania in past decades as an ambassador to Sweden, England, Egypt and the United States.
Several law enforcement witnesses testified during the hearing that Abebe had told them he feared when he saw pictures of Ghailani on television in the days after the bombings that law enforcement authorities would track him down.
After Abebe finished testifying, the judge told lawyers it was "abundantly clear that there are two remarkably different factual narratives that could be drawn from the evidence."
Farbiarz said he thought there was not much "factual complexity" that resulted from the hearing.
The comment prompted the judge to say: "If the government thinks there aren't any factual disputes here, you're on a different planet."
It was unclear exactly what all the factual differences were because parts of the proceedings were closed to the public, including the testimony of a CIA agent.
During cross-examination of Abebe on Thursday, defense lawyer Peter Quijano repeatedly questioned how he could not have known authorities picked him up to ask him about his role in the embassy bombings. He tried to show that Abebe felt coerced to testify because he feared law enforcement, but Abebe insisted that was not so.
Abebe said through a Swahili interpreter: "I request you please, when you talk to me, do not talk with a loud voice. You are scaring me."
On Wednesday, Abebe said he wanted to testify at Ghailani's trial "to take out the (anger) that's inside my heart" after Ghailani left him with the impression that he was going to use the explosives for work purposes rather than to kill people.
"For myself," he said, "I cannot even ... slaughter a chicken."
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