"On Oct. 5, Judge Lewis Kaplan [pdf] excluded Abebe's testimony, on the grounds that it was a a fruit of a poisonous tree, i.e. was only available to the prosecution because Bush had had Ghailani tortured (and maybe had had Abebe tortured, as well!)
That was why Ghailani could not be convicted of murder, as he from all accounts ought to have been. Had his connection to Abebe been discovered by ordinary questioning or by good police work, then the latter could have freely taken the witness stand. In fact, it seems to me very likely that Abebe would in fact have been discovered in other ways, from the record, e.g., of Ghailani's cell phone calls, or even just from his own account of his activities."
Republicans are up in arms that evidence obtained by torture was not allowed. They are renewing their attacks on using the rule of law to bring terror suspects to justice.
Rep. Peter King (R-N.Y.), whose opinion matters because he is the incoming chairman of the House Homeland Security Committee, declared in response, "I am disgusted at the total miscarriage of justice today in Manhattan's federal civilian court...This tragic verdict demonstrates the absolute insanity of the Obama Administration's decision to try al-Qaeda terrorists in civilian courts."
King's use of reproductive terminology to describe the trial is a bit misplaced. Wasn't this really more like a forced birth? The trial wasn't a complete abortion. Ghailani was found guilty on one charge.
Anyways, the idea that a military trial would have found Ghailani guilty is dubious. As Judge Kaplan himself pointed out (h/t FDL):
It is very far from clear that Abebe's testimony would be admissible if Ghailani were being tried by military commission, even without regard to the question whether the Fifth Amendment would invalidate any more forgiving provisions of the rules of evidence otherwise applicable in such a proceeding.
Military commissions are governed by the Military Commissions Act, 10 USC 948a et seq. (the "MCA"). Evidence in such proceedings is governed by the Military Commission Rules of Evidence ("MCRE"). U.S. DEP'T OF DEFENSE, MANUAL FOR MILITARY COMMISSIONS (2010 ed.).
MCA 948r(a) and MCRE 304 preclude or restrict the use of "statements obtained by torture or cruel, inhuman, or degrading treatment," and evidence derived threrefrom, and could require exclusion of Abebe's testimony. Even if they did not, the Constitution might do so, even in a military commission proceeding.
Jack Bauer-loving GOPers want to see what happened to "Gitmo Child" Omar Khadr during his trial happen to all terror suspects. In his trial, the judge allowed evidence his lawyers claimed was obtained through torture to be used against Khadr.
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