Judge Unlikely to Bar Evidence in Terrorism Case
MANHATTAN (CN) - Forcing Osama bin Laden's son-in-law to wear blackout goggles and earmuffs during his in-flight interrogation to the United States left doubt as to whether his statements were voluntary, a retired brigadier general told a skeptical federal judge Tuesday.
The case of Sulaiman Abu Ghayth, whom the late founder of al-Qaida allegedly tapped shortly after the Sept. 11, 2001, attacks to plot attacks on the United States and its allies, is the highest-profile terrorism trial in the Southern District of New York since that of Ahmed Ghailani, the first Guantanamo detainee to stand trial in federal court.
In Ghailani's case, U.S. District Judge Lewis Kaplan barred a jury from hearing torture-tainted testimony that Ghailani helped buy explosives used in the 1998 bombings of two U.S. embassies in East Africa.
Ghailani was ultimately acquitted of all but one charge of the 285-count indictment: conspiracy to destroy U.S. property, causing death. He is serving a life sentence based on that one conviction.
Judge Kaplan seemed reluctant to block incriminating testimony again in the case of Abu Ghayth, whom prosecutors believe was personally summoned by bin Laden hours after the Sept. 11 attacks.
The morning after the attacks, Abu Ghayth appeared with his father-in-law and bin Laden's then-deputy Ayman al-Zawahiri in a video, prosecutors say.
Speaking on behalf of al-Qaida, Abu Ghayth allegedly warned the United States and its allies that "[a] great army is gathering against you." He went on to call upon "the nation of Islam" to do battle against "the Jews, the Christians and the Americans," according to the indictment.
Prosecutors indicated early in the case that they intended to show the jury this video, along with an extensive "post-arrest statement."
There is no indication in the public record of just what statements Abu Ghayth allegedly made on his approximately 10-hour flight to the United States. Both sides agree that he was made to wear blackout goggles and hard earmuffs -- colloquially known as the "eyes and ears" -- during portions of the trip when he was not being interrogated.
Prosecutors deny, however, that the interview was coercive, saying interrogators gave him food and water, let him pray and go to the bathroom, and read his Miranda rights during the flight.
Abu Ghayth allegedly nodded when asked if he understood those rights.
His attorney, Stanley Cohen -- a man with a bushy gray beard and ponytail who has represented a string of notorious clients -- called retired Brig. Gen. Stephen Xenakis to cast doubt on whether Abu Ghayth's statements were voluntary.
Xenakis, a psychiatrist associated with Physicians for Human Rights who often observes detainees at Guantanamo Bay, acknowledged that he never personally treated Abu Ghayth.
The doctor only testified on the medical literature that he read on the case and his experiences studying sensory deprivation, which he called "inherently coercive and stressful" treatment that could "disable" an individual over time.
He said that it could have been particularly aggravating to Abu Ghayth, who allegedly suffered from anxiety disorder, claustrophobia and a stroke he had in Iranian custody six years ago.
When Kaplan asked the basis of that diagnosis, Xenakis replied that he could only fully answer the question in a classified session.
Although the Long War Journal quoted anonymous U.S. intelligence officials as stating that Iran gave the terror suspect safe harbor masquerading as a house arrest, Abu Ghayth now claims to have been mistreated there.
Throughout the examination, Kaplan warned Cohen to keep questioning short and repeatedly sustained prosecutor's objections over relevance and lack of personal knowledge.
"The man never examined the man," Kaplan said with exasperation, referring to the doctor and the defendant.
Kaplan later suggested that Cohen was grandstanding for the handful of reporters seated in the gallery.
"This is obviously a performance for an audience other than the judge that is going to hear it," he said.
Undeterred, Cohen continued asking questions about how the witness arrived at his conclusions.
Xenakis confirmed that he read the notes taken by the FBI medic's assistant, which he criticized for supplying "insufficient data" about the defendant's mental and physical state during questioning to confirm it was voluntary. He added that he routinely offers opinions based on reviews similar to the one he performed in this case.
During a brief cross-examination, Assistant U.S. Attorney John Cronan emphasized how little exposure Xenakis had to the case by asking whether he sometimes interviews people for "hundreds of hours" before reaching a conclusion.
The doctor replied that that true, and that he had no basis to believe that the blackout goggles and earmuffs disabled Abu Ghayth in particular.
The hearing ended in closed session, without a ruling.