The verdict in the trial of Ahmed Ghailani, who was acquitted of 284 counts of murder and convicted on but one count of conspiracy to destroy property, is the direct result of trying the man charged with the 1998 U.S. embassy bombings in our civilian court system and not in a military commission. The trial also provided a legal roadmap for future detainees to escape entirely, or like Ghailani, to severely limit the scope of conviction should the Department of Justice attempt to continue with this misguided policy.
The prosecution’s major problem in Ghailani’s trial was that it was prohibited from using its star witness, Hussein Abebe, who would have testified that Ghailani bought explosives from him and that the purchase was made on the black market. Such evidence would have permitted the government to argue that Ghailani knew what he was doing was illegal, otherwise why would he be surreptitious in buying the TNT. Without Abebe, the defense argued that Ghailani was but a dupe, unaware the explosives would be used for an illicit purpose.
The fate of the absent star witness was sealed the minute the Department of Justice decided to put the case into our regular criminal process. For over two centuries American courts, under the umbrella of the U.S. Constitution, have crafted procedural protections for criminal defendants. One longstanding policy, not used in many legal systems, is that if the government violates a person’s rights during the investigation, the government is punished, not the individual official, but the government’s case. “If the constable blunders, the criminal goes free,” is the oft quoted adage about the exclusionary rule, which suppresses any evidence a court finds was acquired unconstitutionally.
No Miranda rights given, defendant’s confession is suppressed. But our courts go further than just suppressing evidence acquired directly from a constitutional blunder. They also suppress evidence gained indirectly. If during that same confession the subject provides information that leads to other evidence, no matter how reliable or relevant, that evidence is also suppressed. The doctrine is called the “fruit of the poisonous tree.” The government should not gain the fruit from something it has done in violation of constitutional rules is the rationale. Ghailani hit that evidentiary jackpot.
Ghailani claimed he was “coerced” into making a confession, and because the CIA learned of Abebe during this confession, not only should his own confession be suppressed but also Abebe’s testimony. For the enlightenment of MSNBC and Fox’s Judge Napolitano: a coerced confession is not torture. Not only are they much different factually, but also legally. Coercion usually means sleep deprivation, uncomfortable temperature conditions, or lengthy interrogations. Torture is defined by statute and involves “severe pain or suffering, whether physical or mental.” Think tearing off fingernails or threatening to tear off fingernails. No United States court has ever found that waterboarding was torture. But Ghailani did not even claim he was waterboarded, only coerced.