From the Editors
At one level, Judge Lewis Kaplan’s decision, to render coercively procured evidence inadmissible in courts, 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 that 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.
At issue in the ruling on evidence was the testimony of Hussein Abebe, a Tanzanian miner who was expected to testify that he had sold five crates of dynamite to Ghailani prior to the embassy bombings that he 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.
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 of the trial has already been established as inconsequential. He will probably face a life-sentence regardless of whether he is found guilty.
Civil libertarians are likely to 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.’
Public reactions of shock and horror as well as elation in response to Kaplan’s ruling belie just how widely the notion of ‘terrorist’ exceptionality has come to be expected, and perhaps even accepted. If this is true, then Kaplan’s decision must also be viewed as exceptional, and it is in noting the importance of the ruling that we must consider what some of the implications of this decision, as well as the rule of law that it appears to have re-instantiated, might be for other ‘terrorist’ trials. Ahmed Abu Ali’s case is one amongst a possible many that could be affected.
Ahmed Abu Ali: A case built upon Coercive Evidence
Ahmed Abu Ali is a U.S. citizen and resident of Falls Church, VA. During the summer of 2003, he was arrested in Saudi Arabia by secret police, at the behest of the U.S. government. Abu Ali was student at the University of Medina at the time and was studying for his final exams. After his arrest, he was held and interrogated by Saudi authorities and FBI agents for a period of twenty months, without charges or access to a lawyer, and this despite the fact that Abu Ali had requested counsel.
In the fall of 2004, Abu Ali’s family filed a civil action lawsuit against the U.S. government, and requested the court to issue a writ of habeas corpus that would force the government to take action in returning Abu Ali to the United States.
On December 16th, 2004, Judge John Bates ruled against the government and issued a deadline, stating that the government must either disclose the nature their involvement in Abu Ali’s case and/or reveal the trail of inside documents that they had withheld concerning his arrest and detention in Saudi Arabia. In response to this challenge, the government shifted gears, ordering Abu Ali’s extradition to the United States where he was to be criminally indicted.
The charges against Abu Ali initially included two counts of providing material support to terrorists, two counts of providing material support to Al Qaeda, one count of contributing goods and services to Al Qaeda, and one count of receiving services from Al Qaeda. Later on, these charges were amended to include charges of conspiracy to assassinate the president, conspiracy to hijack aircraft, and conspiracy to “free his brothers in Guantanamo.” The government claimed that Abu Ali had joined a terrorist cell in Medina led by senior al-Qaeda members, and that he intended to carry out all that he was being charged with in cahoots with them.
But this is where things get sticky. All of the evidence that the U.S. government intended to produce in court were coerced ‘confessions’ that the Saudi authorities had videotaped while Abu Ali was in Saudi custody. Abu Ali claimed that because the taped confessions were procured through torture, they were inadmissible in court. In a pre-trial suppression hearing, Abu Ali testified, describing the nature of the brutal and continuous beatings he received at the hands of Saudi interrogators. He stated that the beatings continued until he finally agreed to ‘co-operate’.
Saudi authorities testified under less than conventional conditions – conditions that ensured that they could not be charged with perjury: via a video conferencing facility in Saudi Arabia and their identities were undisclosed. Despite this, the testimony of Saudi authorities confirmed Abu Ali’s coercion claim when they admitted that Abu Ali was interrogated from 8pm to 6am, and was often shackled and chained during questioning. They also admitted that they ordered Abu Ali to put his confessions into writing and read them aloud while being videotaped.
The Judge in Ahmed Abu Ali’s case faced the same question that Judge Kaplan addressed in Ghailani: whether or not to admit evidence that ‘may’ have been procured through coercive interrogation. In Ahmed Abu Ali’s case, the court considered medical reports presented by the defense and prosecution in addition to the testimony of Saudi officials.
After physically examining Abu Ali, defense medical expert, Dr. Allen Keller, director of the Bellevue/NYU Program for Survivors of Torture, determined that the scars on Abu Ali’s body were the result of whipping. The prosecution’s expert, a dermatologist by the name of Dr. Robert Katz, relied solely upon photographs of Abu Ali’s back, and concluded that the marks were pigment discolorations rather than scars.
The judge sided with the prosecution and took the Saudi authorities at their word when they claimed that Abu Ali’s confessions were voluntary and not coercive. During the trial, the judge had also rejected defense’s request to present the jury with the State Department’s Annual Human Rights Report in which Saudi Arabia was listed as one of the countries most notorious for torture.
The case is further complicated by the fact that the defense claimed that Abu Ali’s interrogation took place under a joint Saudi –U.S. venture. Accordingly, even if the judge considered the confessions to be voluntary, as a U.S. citizen Abu Ali should have been afforded constitutional safe-guards. Instead, Abu Ali was interrogated by Saudi authorities without protections; he did not have the right to an attorney; he was not informed of his Miranda rights; and he was not protected by the fifth-amendment right against coercive self-incrimination, despite the fact that he had requested an FBI interrogator to provide him with counsel prior to his interrogation. Abu Ali claims that this request was met by the demand to reveal what he knew to Saudi prison guards.
As a result of the Judge’s decision to reject both the defense’s argument that Abu Ali had been unconstitutionally detained and that evidence had been coercively procured, questionable evidence ultimately formed the basis of Abu Ali’s conviction. In 2006, Abu Ali was sentenced to thirty years in prison, followed by thirty years of supervised release.When the case was appealed, the Fourth Circuit Court of Appeals not only upheld the conviction, but also issued a new sentence in response to the government’s claim that the lower court had deviated from federal sentencing guidelines (according to a 2005 Supreme Court ruling, federal sentencing guidelines are no longer mandatory). In 2009, Abu Ali was re-sentenced to life. While the Fourth Circuit Court of Appeals acknowledged that the district court had made several ‘errors’ during Abu Ali’s trial, these mistakes were ultimately construed as “harmless errors.”
Ahmed Abu Ali is now being held in the only fully maximum security prison in the United States, located in Florence, Colorado. He is being held in solitary confinement, underground and for prolonged periods, under conditions that many medical experts have described as torture. He is also being held under Special Administrative Measures (SAMs) that severely restrict movement, communications, including phone calls and visitation, even with his family.
Given that the entire case against Abu Ali appears to have been built upon inadmissible evidence, questions that challenge the constitutionality of Abu Ali’s interrogation, as well as raise the question of torture and coercive confession, must be re-submitted. Action to appeal Abu Ali’s conviction and re-sentencing is pending, but if the case does in fact move forth, Judge Kaplan’s ruling on inadmissible evidence might be of relevance.
Although Kaplan’s decision has no binding precedential value for Abu Ali (since the cases were decided under different judges in different districts), there is some room to invoke Kaplan’s ruling persuasively. In order to point out, for example, that the burden of proof in terms of coercive evidence rests with the prosecution; the government must convince the judge that evidence was not coercively procured. And judges ought to follow Kaplan’s lead in erring on the side of caution.
Additionally, while it is true that Judge Kaplan’s ruling really only addresses a general advocacy principle (insofar as it reaffirms what we already knew to be true: that evidence procured through coercion is unlawful), the impact of this ruling for Ghailani’s trial cannot be underestimated, especially when one considers the prosecution’s construction of Abebe as a “giant witness.” If Kaplan had allowed Abebe to testify, unlawful evidence may well have become the basis for Ghailani’s conviction.
Unfortunately, in Ahmed Abu Ali’s case, this is precisely what happened.
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