MANHATTAN (CN) - A federal judge barred defense attorneys from calling FBI agents to impeach the testimony of government witnesses in the trial of Ahmed Khalfan Ghailani, the first Guantanamo detainee to be tried in civilian court. But U.S. District Judge Lewis Kaplan will allow both parties to stipulate what FBI witnesses would have testified had they been called. Defense attorneys said Monday that they planned to call up to 19 witnesses. They say now they may not call any witnesses, and may enter testimony entirely by stipulation.
The government accuses Ghailani of helping to plan and execute the truck bombings of U.S. Embassies in Dar es Salaam, Tanzania and Nairobi, Kenya, which killed more than 200 people on Aug. 7, 1998. He faces 286 counts of murder, conspiracy and related charges.
Throughout the trial, defense attorneys have suggested that government witnesses changed their stories from the time they were interrogated by the FBI to when they appeared in court.
Kaplan rejected most of these arguments at Tuesday's hearing, which took place without the jury present.
While making his case to the judge, defense attorney Peter Quijano referred to a stack of 302 forms, report summaries that FBI agents file after interrogations.
Judge Kaplan suggested that the records, which are not allowed to be entered into evidence, may not be trustworthy because agents were recording secondhand what their Swahili translators were telling them.
For all the FBI agents knew, their Swahili-speaking suspects "could have been reciting Willie Mays' batting averages," Judge Kaplan said.
The Tanzanian National Police often served as translators for the FBI in interrogating suspects in the bombing in Dar es Salaam. The country's police force has been accused of corruption in this trial.
Even when government witnesses did not contradict FBI statements, Quijano said that an "impeachment by silence" existed when they revealed new details on the stand that did not appear on the 302 forms.
Kaplan seemed unimpressed with that argument, appearing to side with prosecutor Michael Farbiarz's explanation that apparent gaps in FBI records more likely reflected the "silence of someone else's report."
"We don't know what was asked [during the interrogations]," Farbiarz said.
Quijano tried to impeach the testimony of Sleyyum Suleiman Salum Juma, who testified that he sold Ghailani a truck believed to have been used in the bombing of the Tanzanian Embassy; and of Wilson Maganga, who linked Ghailani with other suspects in a clothing store in Mombasa.
When trial resumes today, the prosecution and defense might both rest their case. Defense attorney Steve Zissou said that, at most, only two defense witnesses will be called if the parties cannot agree to stipulations on time: Tanzanian National Police Officer Valentine Mlowola and a fingerprinting expert.
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