Terror Case Ruling Fuels Debate Over Use of Civilian Courts

(Oct. 6) -- A last-minute ruling today by a federal judge blocking the government from using a key witness in a major terrorism case is expected to heat up the already contentious debate over whether to use civilian courts in such cases, legal experts say.

"It will certainly fuel the debate," said former New York federal prosecutor Anthony Barkow, executive director of the Center on the Administration of Criminal Law at the New York University School of Law. "The question is whether a military commission would have reached the same conclusion."

The debate is likely to center around whether prosecutors are more limited in what they can introduce into evidence in civilian courts as opposed to a military venue, and whether the governments should take such risks.

The three-page written ruling by U.S. District Judge Lewis A. Kaplan came on the day trial was to begin in New York for Ahmed Khalfan Ghailani, who is accused of conspiring in the 1998 bombings of the U.S. embassies in Kenya and Tanzania, which killed 224 people, including a dozen Americans.

The judge ruled that the government could not use a key witness, Hussein Abebe, whom the government discovered from a harsh interrogation of the defendant in an overseas jail run by the CIA. The government insisted it would have learned about Abebe even without the interrogation, an argument the judge rejected.

The case has been put on hold until next Tuesday while the government decides whether to appeal and how to proceed.

"The court has not reached this conclusion lightly," Kaplan wrote in a ruling filed today. "It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand."

Attorney General Eric Holder said people shouldn't go too far in interpreting the ramifications of the ruling. His response came during a news conference, when a reporter asked whether the ruling might affect other pending cases in civilian court, including the one against the self-proclaimed mastermind of 9/11, Khalid Sheikh Mohammed.

"We have to understand something -- we are talking about one ruling, in one case, by one judge that we will look at and decide how we want to react to it," Holder said " I think the true test is, ultimately, how are these cases resolved, what happens, can these cases be brought into [civilian] courts? And can they be successfully resolved from the government's perspective?

"I think that the answer to the rest of your question, though, is to look at history. There have been over 300 successful prosecutions of people who were involved in terrorist activities in [civilian] courts. They have been successfully prosecuted," Holder said.

He pointed to the sentencing on Tuesday of Faisal Shahzad, a Pakistani-born American man who received a life prison term for trying to blow up a car in New York City's Times Square.

"Courts have shown an ability to handle these kinds of cases over the years, and I don't know any reason to doubt that we can successfully do that in the future," Holder said.

The issue of civilian courts versus military courts has been a contentious one on Capitol Hill and beyond the Beltway. And some members of the Senate Judiciary Committee, both Democrat and Republican, declined a request by AOL News to comment on the ruling.

Barkow said it is unclear whether a military tribunal would have ruled differently, noting, "In military commissions, tortured statements are inadmissible."

He said the real question is, Can a witness who was discovered through a statement obtained by torture testify in a military trial? And would a military court agree with the government's argument that it would have learned about the key witness even without the coerced interrogation of the defendant?

Former District of Columbia U.S. Attorney Roscoe Howard Jr., now with the law firm Andrews Kurth, added that an ongoing problem in such cases is that while interrogators from the CIA are trying to get information, they may not be thinking that the case will end up in a civilian court. He said the ruling is "just a reminder when you come to this country, we're a country of laws, and that's the law of the land."

Asked by one reporter whether the government is considering returning Ghailani to an enemy combatant status, Holder replied, "We intend to proceed with this trial."