LEWIS A. KAPLAN, District Judge.
Table of Contents
I. Background ................................................................................ 265
A. Hussein Abebe's Connection to the 1998 Embassy Bombings ............................... 265
B. Identifying and Locating Hussein Abebe ................................................ 267
1. [REDACTED] Statements ............................................................ 267
2. Ghailani's Initial Statements .................................................... 267
3. [REDACTED] ....................................................................... 267
4. [REDACTED] ....................................................................... 267
C. Abebe's Arrest, Interrogation, and Cooperation ........................................ 268
1. The Phone Call to Abebe in Late July or Early August ............................. 268
2. Planning and Preparation for the Arrest .......................................... 268
3. Senior Superintendent Mlowola of the TNP is Briefed on August 12,
2006 ............................................................................. 268
4. Abebe's Arrest ................................................................... 269
5. The Tanzanian Interrogation—August 14-15, 2006 ............................. 270
(a) August 14, 2006 ............................................................ 272
(b) August 15, 2006 ............................................................ 272
6. FBI Questioning on August 16 and 17, 2006 ........................................ 272
7. Abebe's Release on Bond .......................................................... 273
8. Subsequent Interactions with Law Enforcement and the Court ....................... 274
II. The Earlier Ruling ....................................................................... 274 III. Attenuation ............................................................................. 275 A. Attenuation, Deterrence, and the Privilege Against Self-Incrimination ................. 275 B. The Ceccolini-Leonardi Factors ............................................... 278 1. The Proximity of the Coercion of Ghailani to Abebe's Proposed Testimony ........................................................................ 278 2. Abebe's Willingness to Testify ................................................... 278 3. The Role of the Illegal Conduct in Securing Abebe's Cooperation and Testimony ........................................................................ 282 4. Temporal Proximity and Deterrence ................................................ 283 C. The Balance ........................................................................... 284 IV. Conclusion ............................................................................... 287
The question presented by this motion is whether the government may use in this criminal trial the testimony of a witness whom the government obtained only through information it allegedly extracted by physical and psychological abuse of the defendant. The government has elected not to litigate the details of what was done to the defendant. Instead, it has asked the Court to assume for purposes of the motion that everything the defendant said was coerced in violation of the Fifth Amendment.
Ahmed Khalfan Ghailani is charged with supplying the explosives that were used to bomb two United States embassies in 1998, one in Tanzania and the other in Kenya. Those attacks took the lives of 224 people and injured more than 4,000. Although Ghailani was not apprehended until years later, our government quickly learned of or suspected his alleged role. [REDACTED]
Ghailani eventually was apprehended in 2004 and turned over to the CIA. The CIA put him in a secret prison outside the United States and subjected him to so-called enhanced interrogation methods and other allegedly abusive treatment. It interrogated him in the secret prison for [REDACTED] Over time, Ghailani gave the CIA the information that led the government directly to Hussein Abebe—[REDACTED]
The government now proposes to call Abebe as a witness against Ghailani. Ghailani moves to preclude the government from doing so. He argues that the government's identification of Abebe and his procurement as a witness flowed directly from statements that he made under duress and that the receipt of Abebe's testimony would violate the Constitution.
The Fifth Amendment states that "[n]o person shall be compelled in any criminal case to be a witness against himself." But it does more. "When an incriminating statement has been obtained
The temptation to allow our revulsion at these bombings, the human instinct for vengeance, and fear of terrorist attacks to overcome principles upon which our nation rests—principles that, although not always observed, are ideals to which we aspire—is powerful. If our nation is to continue as a bastion of liberty, however, we must remain true to our principles and overcome that temptation.
Among those principles is that which has been traced to Deuteronomy, that grew gradually through the long history of English law and in the American colonies, and that then was embodied in the Self Incrimination Clause in the Fifth Amendment.
In this case, the link between the CIA's coercion of Ghailani and Abebe's testimony is direct and close. Based on an extensive record, the Court's assessment of the credibility of witnesses the government called at the suppression hearing, and the lack of credible evidence to support key aspects of the government's argument, the government has not carried its burden of proving that Abebe's testimony would be so attenuated from Ghailani's coerced statements to permit its use. The motion to preclude Abebe's testimony is granted.
Ghailani's alleged role in the embassy bombings included obtaining the explosives in Arusha, Tanzania, from Abebe and transporting them to Dar es Salaam. According to Abebe, the story is as follows.
A man named Rashid called Abebe in 1997, about a year before the bombings,
Soon after the August 7, 1998, embassy bombings, Abebe saw Ghailani's image on television in relation to the bombings and realized that the person to whom he had sold explosives, "Ahmed," was wanted in connection with the bombings.
Abebe took this advice. He did not tell anyone else, not even his wife, about having sold explosives to "Ahmed."
Immediately after the bombings, [REDACTED] law enforcement agencies, including [REDACTED] the FBI, began trying to identify and apprehend the supplier of the explosives. The FBI had distinct interests in doing so. The FBI was interested in prosecuting the responsible individuals. [REDACTED]
[REDACTED]
Ghailani was apprehended in Pakistan in late July 2004 and transferred to exclusive CIA custody [REDACTED]
Ghailani was transferred to CIA custody in 2004. He was imprisoned at a secret site and subjected to extremely harsh interrogation methods as part of the CIA's Rendition, Detention and Interrogation Program. Ghailani here contends that his treatment constituted torture. For present purposes, it suffices to say that the government does not dispute, for purposes of this motion, that all of the statements made by Ghailani while in CIA custody were coerced and obtained in violation of his Fifth and Sixth Amendment rights. [REDACTED]
[REDACTED]
[REDACTED]
Having thus identified and located Ghailani's explosives supplier, [REDACTED] began moving together toward Abebe's arrest and questioning.
In late July or early August, roughly two weeks before his arrest, Abebe received a phone call from a man who identified himself as Mr. Mazoa. Mazoa told him that Abebe did not know him, but that he was a well-known person who used to work at the police station in Arusha.
Abebe's mother advised him not to take out a loan because he could not be sure about securing reimbursement; "if they need you, they will come for you."
It is not clear whether Abebe thought that Mazoa was connected with the Tanzanian police [REDACTED]. The fact that he ignored the call suggests that he did not.
[REDACTED]
On August 12, 2006, Valentine Mlowola,
On the morning of August 13, 2006, two passengers—[REDACTED]—hired Abebe's taxi and asked him to drive to the regional government building.
When they arrived at the police station, the officers told Abebe to park his taxi "nicely" and lock it because they needed to talk with him inside the building.
Mlowola, Abebe, [REDACTED] then took a taxi to the Kilimanjaro Airport. Abebe claims that Mlowola did most of the talking along the way, trying to "remove [Abebe] from the worries."
While the group waited at the airport,
Abebe testified that he knew he was in trouble by the time he got to Zanzibar, but that he had no idea why he had been arrested until he was asked about the 1998 bombings in Zanzibar two days later.
After arriving in Zanzibar, Abebe was taken by car [REDACTED] where he claims that he was "welcomed" and invited to eat. "[U]pon arrival ... Abebe finally admitted to [REDACTED] that `this must be serious.' Aside from that, however, he continued to be relatively uncommunicative."
[REDACTED]
On the morning of August 14, Mlowola introduced Abebe to a man named Sadek Majid, whom Abebe knew from Arusha. As Mlowola had done the day before, Majid urged Abebe to tell whatever he knew so that he could go home.
First, there is conflicting evidence as to the identity of the lead questioner, the extent to which Mlowola actually was present, and even as to the number of days during which the Tanzanians questioned Abebe without direct American participation. According to Mlowola, he was the lead questioner and there was only one
These conflicts are readily resolved, [REDACTED]
Second, the Court accepts that the questioning took place in comfortable surroundings and that there is no evidence that Abebe was physically restrained or abused or that he was expressly threatened with violence. He had been told in advance of these sessions, however, to tell what he knew so that he could go home, in itself an implicit threat, and he was aware also that the TNP sometimes had been known to detain people without their families knowing where they had bean taken
Third, it is important to recognize that the government introduced precious little evidence as to what actually transpired during the Tanzanian interrogation of Abebe, [REDACTED] the only Tanzanians who were there and who took the stand at the suppression hearing were Mlowola and Abebe. The government offered no explanation for its failure to [REDACTED]
The first day of the Tanzanian interrogation was uneventful. [REDACTED]
Questioning resumed on the following morning, again with no Americans present. [REDACTED]
[REDACTED]
[REDACTED]
In any case, [REDACTED]
FBI agents arrived in Zanzibar on the evening of August 15, 2006,
Four FBI agents arrived at the house in mid-morning and were introduced to Abebe by Mlowola. [REDACTED] served as translator throughout the FBI questioning, during which the agents spoke English and Abebe spoke Swahili. Agent Driscoll, through the translator, thanked Abebe for the opportunity to meet with him and explained to Abebe that he did not have to speak with the FBI and that it was his choice whether or not to do so.
Over the course of the day, the FBI conducted three sessions totaling roughly six hours, with a break between each session. Agent Swabsin testified that the tone was friendly and conversational throughout.
The first session lasted for two hours and dealt primarily with Abebe's background information. The second was more focused and addressed Abebe's interactions with Ghailani.
The FBI held one more short interview session with Abebe on the morning of August 17, at the end of which Abebe again stated that he would be willing to testify in either Tanzania or the United States.
The FBI left Zanzibar on the afternoon of August 17, [REDACTED]
Since being released on bond, Abebe has had occasional interactions with Assistant Commissioner Mlowola and has been interviewed by FBI agents at least three different times.
Most notably, Abebe met on November 29, 2006, with FBI agents, Assistant Commissioner Mlowola, [REDACTED] for a couple of hours at the local police station in Arusha. He was not then in custody beyond the restrictions imposed by the police bond. Nevertheless, the FBI again read him his rights and asked him to sign an advice-of-rights form, which he did.
At some point during that interview, Abebe asked whether he would be compensated for the information he had provided regarding Ghailani. Swabsin responded by "remind[ing] him that ... he should consider himself fortunate that he was a free man, that he was not under, facing any criminal charges in the United States or here in Tanzania, that he had his life in order, living with his family and working, having a meaningful existence in Arusha."
Abebe met with FBI agents also (1) in May 2007 at the regional police headquarters in Arusha, (2) in February 2010 at Abebe's home,
On September 15 and 16, 2010, Abebe appeared before this Court and testified at the suppression hearing. He stated that he wants to testify because he is angry at Ghallani for having tricked him and that he wants to clear both his heart and his name.
The starting point for determining whether Abebe may be called as a witness against Ghailani is the Court's earlier opinion
To recapitulate briefly, illegally obtained evidence—including statements made by a defendant under government coercion— and the fruits of such evidence generally are not admissible against the defendant in a criminal trial.
As the Supreme Court held in Ceccolini,
The government treats the factors articulated in Ceccolini and summarized in Leonardi as a checklist. It takes essentially the view that the fruits of the coercive interrogation of Ghailani are admissible if it has offered evidence that would permit the government to check at least some of the items on the list, particularly
It is true of course that the question whether exclusion would serve any deterrent purpose is relevant in both Fourth and Fifth Amendment attenuation cases. But it is not necessarily the dispositive consideration, even in Fourth Amendment situations. After all, the Supreme Court in Ceccolini and the Circuit in Leonardi each listed the deterrent effect of exclusion as but one of several factors to be considered in deciding whether the fruits of a violation of the Fourth Amendment are sufficiently attenuated to warrant their reception in evidence. If deterrence were decisive in every case, there would be little or no reason to consider, for example, the willingness of the challenged witness to testify, which may have little if anything to do with whether excluding a witness would have a meaningful effect in deterring official misconduct in the future. Nor were Ceccolini and Leonardi written on a blank slate. In order properly to understand the attenuation analysis, therefore, it is helpful to step back and examine its historical development.
The earliest fruit-of-tainted-evidence, or "poisonous fruit," cases dealt with physical evidence derived from illegal searches and seizures. The Supreme Court recognized that "[t]o forbid the direct use of [unlawful] methods ... but to put no curb on their full indirect use would only invite the very methods deemed inconsistent with ethical standards and destructive of personal liberty."
In Ceccolini,
The Court noted two factors as being particularly indicative of the degree of attenuation where a live witness is concerned: the willingness of the witness "to freely testify" and the directness of the "link between the illegality and [the witness's] testimony."
All of this is merely to say that the Ceccolini-Leonardi factors that bear on the issue of attenuation developed in service of a larger inquiry. The question, assuming for a moment that this were a Fourth Amendment case, would be whether the government has proved that Abebe's proposed trial testimony in all the circumstances—including how he was identified and found, how his cooperation was secured, and the reasons that he is "willing" to testify—would be so remote from Ghailani's coerced statements that it should not be considered as having been tainted by that coercion. The Ceccolini-Leonardi factors would provide useful guidance on this question. Deterrence would be a significant consideration. But it would not always end the analysis.
This is even clearer in the Fifth Amendment context than in the Fourth. In every Fourth Amendment case, the violation of the defendant's constitutional rights was completed when the illegal search or arrest that led, in one way or another, to the challenged witness took place. It cannot be undone. The purpose of excluding the witness is to deter future violations of the rights of others. Thus, in Fourth Amendment cases, the strong public interest in making all relevant, credible evidence available to the trier of fact
This consideration is relevant also in Fifth Amendment cases.
Thus, the concern in the Fifth Amendment context is not only with whether exclusion would serve as a significant deterrent to future misconduct. It is also with whether the taint ordinarily attributable to the alleged derivation of the challenged testimony from the defendant's coerced statements is absent because the relationship between the defendant's statements and the challenged testimony is too remote. Unless that taint has been dissipated, the receipt in evidence of testimony that is the fruit of statements coerced from the defendant violates the self-executing exclusionary rule inherent in the Fifth Amendment.
That said, the Court considers the government's attenuation argument first in terms of the Fourth Amendment authorities, passing only then to the question whether the Fifth Amendment basis of the right asserted here requires any different result.
The first of the considerations articulated by the Ceccolini Court as pertinent to the attenuation analysis is the closeness and proximity of the challenged testimony to the violation of the defendant's constitutional rights.
As an initial matter, the government would not have identified or located Abebe absent Ghailani's coerced statements. [REDACTED] Abebe was arrested and interrogated solely as a result of statements coerced from Ghailani.
Nor is that all. As will appear below, [REDACTED]
The government argues, drawing upon Abebe's testimony at the hearing, that Abebe is a "willing" witness in every sense of the word; he is an eager volunteer who has been cooperative from the moment he was found and who wants to testify against Ghailani because he wants to clear his
We begin with the chronology of Abebe's journey from uninvolved taxi driver to cooperating witness. Abebe knew very soon after the bombings that he had sold explosives to a man wanted in connection with those bombings. Notwithstanding the importance of that information, he chose not to come forward. He told almost no one what he knew and literally prayed that no one would find him. Eight years later, he was taken off the street in Arusha, flown to an unknown location in Zanzibar, held incommunicado and questioned for a week, and then looked up in Dar es Salaam for another five days. In the hours before the interrogation in Zanzibar, Tanzanian authorities repeatedly told Abebe to tell what he knew so that he could go home. Even then, however, Abebe did not immediately confess his involvement.
The government has not established exactly what happened on the second day of Tanzanian Interrogation, but something convinced Abebe finally to tell them that he had sold explosives to Ghailani. Seeing no other options available to him, he admitted his involvement [REDACTED] He cried that night, despondent over what he had told the Tanzanian officials and fearful of what it would mean for his future. The next day, he repeated to the FBI what he already had told [REDACTED] and agreed to testify wherever and whenever the Tanzanian or American officials wished.
This was not a free and unconstrained decision. Abebe is not at all comparable, for example, to the uninvolved police science student witness in Ceccolini, He quite plainly is no eager volunteer. He never would have come forward on his own. He is "willing" to testify now only because be fears that things will go badly for him if he does not. As Abebe understood would be the case from the moment he saw Ghailani's picture on television in 1998, the American and Tanzanian officials who interrogated him considered Abebe not only a potential witness, but also a prime suspect in the bombings. This was true when he first was arrested, and it remained true in his subsequent interactions with law enforcement officials. If the threat of prosecution previously had been only implicit, which it was not in view at least of Mlowola's statement, it became explicit in November 2006 when the FBI pointed out to Abebe in a subsequent interview that [REDACTED]
[REDACTED] In fact, Commissioner Mlowola testified that Abebe could be prosecuted in Tanzania even today for his role in the bombings if the Tanzanian police had sufficient evidence that Abebe knew the intended purpose of the explosives that he sold to Ghailani, Abebe plainly was—and remains—acutely aware of his precarious position. The most logical inference from the evidence is that Abebe has agreed to cooperate and testify at least partly out of fear of prosecution if he does not. Moreover, Abebe evidenced concern at the hearing about the behavior of the TNP in respects going beyond future prosecution.
Abebe, to be sure, testified at the hearing that he has been under no pressure to testify and that he wants to testify to "take out the angerness that's inside [his] heart" and to "clean [him]self" by clearing his name in light of his belief that many people know that he was the explosives supplier.
To begin with, Abebe was not a credible witness on other matters. He claimed that he had no idea why he had been arrested and that he was not at all worried when [REDACTED] Mlowola picked him up and flew him to [REDACTED] Zanzibar. Indeed, he insisted at the hearing that it did not cross his mind, even for a moment, that the arrest in Arusha and the trip to Kilimanjaro and then on to Zanzibar might have had something to do with the embassy bombings.
Nor are Abebe's claimed motives for testifying any more credible. If indeed Abebe's heart were moved by his having supplied the explosives that killed hundreds and wounded thousands of people, it would be very difficult to understand why he did not come forward on his own. The need for cleansing his heart and soul was at least as strong over the eight years before his arrest as it has been since.
This of course is not to say that only eager volunteers and dutiful, uninvolved citizens may qualify as willing witnesses or that those who cooperate to improve their prospects in the criminal justice system may not be so regarded. Rather, the assessment always must include a consideration of the witness's motives and the extent to which the illegal search, coerced statements or other violation of law played a role in securing the witness's cooperation. So, for example, the fact that the challenged witness in Leonardi agreed to cooperate in order to reduce his exposure on a charge largely unrelated to the defendant's alleged crime did more to dissipate the taint of the illegal search than would have been the case if, for example, he had been involved in the same wrongdoing as the defendant and was persuaded to testify by use of the fruits of the violation of the defendant's rights.
That said, it remains to consider the import for the attenuation analysis of Abebe's reason for testifying. On the government's view, Abebe is "willing" within the meaning of Ceccolini and Leonardi provided only that he has chosen, in some sense, to testify, as he obviously has, seemingly without regard to the reasons for his choice. But that argument, if accepted, would disregard the purpose of the "willingness" inquiry. Ceccolini makes clear that the primary purpose of inquiring as to "willingness" is to determine whether a challenged witness might have come forward even absent the violation of a defendant's rights. Accordingly, it matters a great deal whether the challenged witness is an "eager volunteer," a dutiful disinterested citizen, or one who had to be pressured into cooperating and on what basis. And if the witness is of the latter sort, it matters also whether and to what extent the violation of the defendant's constitutional rights played a role in persuading the challenged witness to become "willing." Given that Abebe certainly is nothing like an "eager volunteer," the Court turns now to the connection between Ghailani's coerced statements and Abebe's "willingness" to testify against him.
The government contends that the only pertinent consideration in determining whether the illegal government coercion of a defendant's statements played a role in obtaining the testimony of a challenged witness is whether the witness was confronted with the defendant's coerced statements. That proposition appears to be incorrect. Ceccolini itself indicates that the use of the illegally obtained evidence in questioning the challenged witness is only part of the necessary inquiry, another aspect of which is whether the witness's cooperation was induced "as a result of" the evidence illegally obtained from the defendant.
As an initial matter, the record makes clear that Abebe never would have been identified and located without the information contained in a series of coerced statements made by Ghailani [REDACTED]
Not only were Ghailani's coerced statements the means by which Abebe was identified and found, [REDACTED] Mlowola admittedly told Abebe that he was suspected of having supplied the explosives to "Ahmed Khalfan Ghailani," thus strongly suggesting to Abebe that the TNP [REDACTED] knew the full identity of the man previously known to him only as "Ahmed." [REDACTED] Moreover, while the Court recognizes that this evidence perhaps falls short of conclusive proof that Ghailani's statements were used to persuade Abebe to cooperate, that is not the test. The test is whether the government has proved that they were not so used. That it has not done.
At the most obvious level, [REDACTED] The contemporaneous notes taken by a TNP officer who apparently was present were not offered in evidence. And while both Abebe and Mlowola testified in general terms that Abebe was not told about Ghailani's statements, Abebe was not a credible witness, and Mlowola remembered little and was confused other key points. Moreover, their testimony on this point disregards the contemporaneous, if not complete or entirely satisfactory, evidence that is in the record—[REDACTED] In short, even if the government were correct in saying that this factor would cut in its favor if it proved only that Abebe was not confronted with the fact or substance of Ghailani's statements in securing his cooperation, the government has not established that he was not so confronted. Indeed, as indicated above, the available evidence suggests the contrary.
Nor is the government's failure of proof entirely surprising. Whether by design or otherwise, there were no Americans whose presence could be compelled by an American court in the room. [REDACTED] Abebe's arrest and the ensuing events were scheduled in a manner that resulted in the arrival of the FBI only after Abebe had been interrogated by Tanzanians alone.
In all the circumstances, the Court finds that the government has not established that neither the fact nor the contents of any of Ghailani's coerced statements played a role in Abebe's decision to confess, cooperate and testify.
The government argues that the interval between the last of Ghailani's coerced statements that led to Abebe, [REDACTED] and this trial has been about [REDACTED] and that its length supports a conclusion that Abebe's testimony should not be suppressed.
Just as the absolute length of the period between Ghailani's apprehension and the government's decision to proceed with this prosecution was not alone dispositive of Ghailani's claim that he was deprived of his right to a speedy trial, which the Court rejected as the government sought,
Depending upon the circumstances, the passage of time may be persuasive on the issue of attenuation in at least two ways. All other things being equal, the longer the time interval, the less likely that the defendant's rights were violated in order to further the prosecution at issue and, in consequence, the less likely that suppression of the challenged witness would deter future violations.
It may be that the legal risks to Abebe now are somewhat less than he perceived them to have been when he initially agreed to testify. Nonetheless, the Court—particularly in light of Abebe's false testimony about his motives in testifying—is not persuaded that his fears of legal or other undesirable consequences should he decline to testify have been eliminated.
Turning to the question of the import of the passage of time with respect to the question of deterrence, the Court remains convinced that the CIA's predominant motives in coercing Ghailani to reveal what he knew about his explosives supplier were intelligence-oriented. [REDACTED]
Having considered each of the factors pertinent to the attenuation analysis, it remains to strike the balance.
The starting point is the fact that the connection between Abebe's proposed testimony and statements coerced from Ghailani could not be closer. [REDACTED]
Next, Abebe assuredly is not a volunteer witness. He sought to avoid discovery for years out of fears of being identified as the supplier of the explosives. He withstood his arrest, his transfer to [REDACTED] Zanzibar, and a full day of Tanzanian interrogation without admitting his role, a reticence born of the fear of the consequences of a different course. In the last analysis, he has agreed to testify because he is afraid to do anything else.
What exactly produced this change of heart? Certainly not what Abebe claims produced it. The government has provided no convincing evidence of what accounted for it. As previously discussed, no one who was in the room at the time has been called to testify except Abebe and, if he was there, Mlowola. The contemporaneous notes that Mlowola said were taken were not offered and their absence was not accounted for. It is likely that Ghailani's coerced statements played at least some role, [REDACTED] In any case, the government certainly has not established that Ghailani's statements played no material role in Abebe's change of heart.
To be sure, the time interval between the violation of Ghailani's rights and any trial testimony by Abebe would be appreciable. But that would be of major significance only to the extent, if any, that it tended to show that the passage of time has made Abebe a more "willing" witness and that exclusion would serve no deterrent effect. While Abebe's legal risks may have diminished somewhat, and even that is not certain, the Court finds that he is no more "willing" in any relevant sense to testify now than he was years ago. And the time interval has no bearing in this case on the question of deterrence. The
The government's strongest argument remains that related to deterrence. It initially contended that the CIA was motivated entirely by intelligence objectives and that exclusion here consequently would serve no deterrent purpose.
The Court accepts that [REDACTED] Whether that means that absolutely no deterrent purpose would be served by suppression of Abebe's testimony here, however, is another matter in light of [REDACTED] And regardless of whether that is the case, deterrence is but one of the pertinent considerations.
In the last analysis, this Court concludes that exclusion of Abebe's testimony would be required here even if the government had identified and found him in otherwise comparable circumstances as a result of an illegal search or seizure, this notwithstanding the relative lack of deterrence of exclusion in these circumstances. If this were a search and seizure case, the relationship between the unlawful conduct and the identification and location would be just as close. Abebe's reluctance to testify and the fear of the authorities that nevertheless moves him to testify would be just as palpable. The government's failure to prove that the illegally seized evidence played no role in securing his cooperation would be just as glaring as they are here. These considerations would overcome the facts that the illegal search or seizure would have been a completed historical event and that the deterrent effect of exclusion, if any, would be considerably less than a certainty. But, it bears emphasis, this is not a Fourth Amendment search and seizure case. Hence, two factors make the case for exclusion here much stronger than if it were.
First, as this is a Fifth Amendment case, the receipt in evidence of Abebe's testimony itself would constitute a violation of the self-executing exclusionary rule inherent in the Constitution, not a matter of compliance with a purely utilitarian judge-made rule that was created in the twentieth century only to deter illegal searches and seizures.
Second, the deterrence analysis, which for reasons previously explained is of less importance here than in a Fourth Amendment case, is somewhat different. The CIA, acting upon the highest authority, used coercive methods to gain intelligence. This Court has declined to this point to express an opinion on the constitutionality of such methods, considered in and of themselves.
Ceccolini,
In Ceccolini, a perjury case, a police officer found policy slips in the defendant's shop while making an illegal search. This led to the questioning of the store clerk, who happened to be a police science student, by an FBI agent who was not even fully informed of the manner in which the police officer had obtained his information. The student immediately offered to help the police. Over a year later, the defendant testified before a grand jury, allegedly falsely. In the ensuing perjury trial, the issue arose whether the testimony of the student-store clerk should have been precluded on the theory that the police had questioned her only because of the illegal search that discovered the policy slips.
Similarly, the witness in question in Leonardi was known to the police prior to the illegal search,
Sweets,
In Sweets, the police coerced the defendant to lead them physically to the location of the witness, Long, who at that time was wanted for murder. Long subsequently cooperated and testified against Sweets, and Sweets argued that this testimony should have been precluded as poisonous fruit. Relying in part on the facts that (1) Long already had been identified by the police and already was the subject of an outstanding arrest warrant for murder,
In the last analysis, then, the government's cases do not lend significant support to its position here. Ceccolini, Leonardi and Reyes are not helpful both on the facts and, in any case, are not Fifth Amendment cases. Sweets too is unhelpful on the facts. And while it is a Fifth Amendment case, this Court does not find its Fifth Amendment analysis persuasive.
In all the circumstances, this Court holds that the receipt in evidence of Abebe's testimony would violate the Fifth Amendment.
As the Court noted in its summary order dated October 5, 2010, it has not reached this conclusion lightly. It is acutely aware of the perilous world in which we live. But we must adhere to the basic principles that govern our nation not only when it is convenient to do so, but when perceived expediency tempts some to pursue a different course. The government may continue its prosecution of Ghailani without using this evidence. It probably may detain him as an enemy combatant as long as the present hostilities continue. What it cannot do is to use Abebe's testimony in its otherwise perfectly appropriate prosecution to convict him of the crimes with which he is charged.
The defendant's motion to preclude Hussein Abebe from testifying at trial is granted. The foregoing as well as the Court's previous opinion on this motion are the Court's findings of fact and conclusions of law.
SO ORDERED.
As discussed in greater detail infra, the Court does not credit Abebe's claim of forgetfulness in this regard in light of the other testimony and documents attesting to his years of worry and deliberate silence regarding his having sold explosives to Ghailani. See supra note 15.
After eating, he slept in a bedroom that he described as looking like a hotel. He said that he was not looked in or otherwise restrained, although he understood himself to be under arrest at that time. Id. at 314-15.
