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... supports Professor William Snyder's sections of National Security Law, Counterterrorism Law, and Prosecuting Terrorists at the Syracuse University College of Law.

Embassy-Bombing Trial in Jeopardy

Oct 13th, 2010 AIII Courts, Ghailani

Andrew McCarthy writes in National Review in an article entitled "Embassy-Bombing Trial in Jeopardy," that due process standards are crippling successful prosecutions and that "once again, politics has trumped national security and common sense." 

As evidence that Ghailani's prosecution has gone from a virtual "slam dunk" to a "horse race," McCarthy notes that even though a jury should not be able to hear a coerced confession, a jury should perhaps be able to hear a confession Ghailani made to the FBI three years after the CIA under duress, where the FBI does not use the CIA's controversial tactics. 

The tradeoff, argues McCarthy, to the Justice Department steering clear of controversy is that the jury won't learn that Ghailani admitted to planning the bombing, buying the TNT, and later being celebrated as an al Qaeda hero in the al Qaeda camps.

Critically, argues McCarthy, last week's ruling against the introduction of witness Hussein Abebe as fruit of the poisonous tree may not mean Abebe is not able to testify at all. In fact, if Abebe is willing to testify of his own free will, meaning that his testimony is not one directly caused by Ghailani's coercion, then Prosecutors may be able to convince Judge Kaplan to allow his testimony. McCarthy notes:

"The Judge has not slammed the door on prosecutors, but he has indicated that the testimony will be barred absent a compelling demonstration that this witness – fully aware that he is under no obligation to provide evidence against a terrorist mass murderer – actually wants to come to New York and testify, and is not acting under any duress from U.S. or Tanzanian authorities."

If Abebe's testimony is stricken, McCarthy believes the case "would be deeply – and perhaps fatally – wounded." For the full text of his article, published 10/6/10, click here

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