In the wake of the decision to convict Guantanamo detainee Ahmed Ghailani on only one of 285 counts--and that one neither a terrorism count nor a murder count--much has been made of the role that torture played in the verdict. Critics of the verdict and of torture–not usually in agreement on such details--have both agreed that the verdict turned on the exclusion of a “giant” government witness who was not allowed to testify.
The narrative that has determined this exclusion is as follows: The witness in question, Hossein Abebe, would have allegedly tied Ghailani to the purchase of TNT to be used in the Embassy Bombings of 1998. He was excluded because he was found solely through information gleaned from the enhanced interrogation of Mr. Ghailani, and therefore was a fruit of the poisonous tree, which the judge pointed out is “unconstitutional.” The assumption here is that, had this witness testified, the verdict would have come down differently.
For the first and perhaps only time in the war on terror, torture had consequences.
It is a fact that Judge Kaplan made history when he issued his opinion excluding Abebe from the trial. For the first and perhaps only time in the war on terror, torture had consequences. But the further assumption that had Abebe testified, the case would have resulted in a different verdict is not supported by what happened either in the pre-trial testimony of Abebe or in the trial itself.
This past September Abebe was brought to New York City from Tanzania to testify in a pre-trial hearing before Judge Lewis Kaplan. Over the course of two days, Abebe was questioned extensively through a Swahili interpreter by both the defense and the prosecution in an effort to determine whether or not his testimony would be allowed into the court proceedings. While on the stand, Abebe was asked about many things, including the circumstances of his questioning in Tanzania in 2006, when he was first located by the FBI. He admitted that he had kept quiet for eight years and never said anything about what he was now apparently ready to say about Ghailani. In 2006, the Tanzanian police had arrived at his door and taken him to Zanzibar without telling him why and had detained him for a week. Eventually, Abebe signed a bond for release in which he confessed to conspiring to murder and terrorist acts. This September, he indicated to the court that he didn’t know what he had signed, explaining, “I was happy to go free.”
The impression that Abebe gave on the stand was that the information he might have to offer was less than credible. The judge, although basing his decision on the constitutionality of excluding evidence obtained through torture, was clearly concerned about Abebe’s credibility overall and about the role which fear of reprisal may have played in Abebe’s willingness to appear in court. At one point in the pre-trial hearing, Judge Kaplan asked the witness whether he remembered testifying that in Tanzania the police sometimes took people without telling their families where they were being held. The witness said that he remembered telling the court this. “He was no volunteer,” the judge wrote in his opinion, “Quite the contrary. He was induced to testify only out of fear of the consequences of not doing so, including possible prosecution and, conceivably, worse.” The testimony itself, according to Judge Kaplan, in his largely redacted opinion on suppressing the witness, was “quite incredible.”
As a non-credible witness, it is presumptuous to assume that had Abebe taken the stand, his testimony would have appeared persuasive to the jury. In fact, given the verdict in this case, the conclusion might be quite the opposite. A number of the Tanzanian witnesses who testified during the trial seemed somewhat frightened, and therefore less than credible on the stand. On several occasions, it appeared that the original FBI reports on these witnesses also had credibility issues because the translators for the witnesses were the Tanzanian police themselves and the testimony on the stand in 2010 apparently contradicted some of these earlier statements. At the very least, there was “reasonable doubt” as to the credibility of their testimony.
The jury decided this case based on the facts. Why can’t the country at large?
Karen Greenberg is the executive director of the Center on Law and Security at the NYU School of Law and the author of The Least Worst Place: Guantanamo’s First 100 Days. She chronicled the Ghailani trial from beginning to end for Mother Jones at http://motherjones.com/authors/karen-greenberg.