MEMORANDUM OPINION

LEWIS A. KAPLAN, District Judge.

Ahmed Khalfan Ghailani, an alleged member of Al Qaeda, was indicted in this Court in 1998 for, among other things, conspiring with Usama Bin Laden and others to kill Americans abroad by, among other means, bombing the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, bombings in which 224 people reportedly were killed and many more injured.

On March 26, 2010, Ghailani moved to suppress certain evidence and for other relief. The principal issue that remains for resolution is whether the government should be precluded from calling Huessin Abebe as a trial witness on the ground that the government identified and located Abebe by use of coerced and uncounselled statements Ghailani made [Redacted]1

Facts

Ghailani's alleged role in the embassy bombings was to obtain the explosives in Arusha, Tanzania, from Abebe, and to transport them to Dar es Salaam. Abebe therefore may be a significant witness for the government.

A. Earliest Government Knowledge of Abebe

The FBI first learned of Abebe's alleged involvement in the 1998 embassy bombings [Redacted]2, 3, 4 [Editor's Note: Text and associated footnote references redacted by court.]

B. Ghailani's Custodial Statements About Hussein Abebe

1. [Redacted]

(a) The Statements

As detailed elsewhere,5 Ghailani was apprehended by Pakistani forces in late July 2004. [Redacted]6, 7, 8, 9, 10, 11, 12 [Editor's Note: Text and associated footnote references redacted by court.]

(b) Alleged Coercion

Ghailani claims that all of the statements he made [Redacted] were coerced and, in addition, violated his Sixth Amendment right to counsel13 [Redacted],14, 15, 16, 17, 18 [Editor's Note: Text and associated footnote references redacted by court.]

2. Statements in CIA Custody

Ghailani was [Redacted] placed in the CIA's Rendition, Detention and Interrogation ("RDI") Program. That program used a combination of social influence approaches and extremely harsh interrogation methods to obtain intelligence from a handful of detainees believed to possess particularly high-value information.19 Each was subjected to a unique interrogation program designed "to reduce [the detainee's] physical ability and emotional desire to resist interrogation."20 [Redacted]

C. Abebe's Identification, Location, and Cooperation

[Redacted]21, 22, 23, 24, 25, 26, 27 [Editor's Note: Text and associated footnote references redacted by court.]

Tanzanian authorities located and arrested Abebe in Arusha on August 13, 2006,28 They immediately flew him to Zanzibar, Tanzanian, where he was held and questioned by Tanzanian officials for about a week.29 The FBI also questioned him during that period.30 Abebe subsequently was released, and no charges were filed against him.

According to both the Assistant Commissioner of the Tanzanian Police Force and one of the FBI agents who interviewed Abebe in Zanzibar, Abebe has been cooperative from the moment he was taken into custody and consistently has told them in multiple voluntary interviews that he is willing to come to the United States to testify for the government in this case.31 He has stated this willingness not only while in Tanzanian custody following his arrest in mid-August 2006,32 but also in at least two non-custodial interviews with FBI agents since 2008, most recently in an interview at his home in February 2010.33 Both law enforcement officials declare that neither they not the other agents and officers who interviewed Abebe ever used threats or force to induce him to testify.34 [Redacted]35 [Editor's Note: Footnote references redacted by court.]

There is no treaty mechanism or other provision of law between the United States and Tanzania that would allow either government to compel Abebe to testify in this trial.36 Nor, according to the Tanzanian police official, does Abebe currently face any criminal exposure under Tanzanian law.37

Discussion

Ghailani claims that all of his custodial statements about Abebe were coerced and obtained in violation of his right to counsel.38 He argues that Abebe should be precluded from testifying at trial because that testimony would constitute "fruit of the poisonous tree"—evidence derived from his illegally obtained statements.

I

A. The Fruit of the Poisonous Tree

The fruit of the poisonous tree doctrine dates to Silverthorne Lumber Co. v. United States,39 a case involving an illegal seizure of documents. Following the district court's direction that the prosecutor return the seized documents, the prosecutor caused the grand jury to subpoena the same evidence from the defendants. The defendants were held in contempt for refusing to produce them. The Supreme Court, however, reversed, holding that the Fourth Amendment precluded the use of the illegally seized evidence to formulate the grand jury subpoenas. It nevertheless declined to make the "facts ... obtained [by the illegal seizure] sacred and inaccessible,"40 noting that "[i]f knowledge of them is gained from an independent source they may be proved like any other ...."41

The Supreme Court next considered the problem of evidence derived from information gained by an illegal search in Nardone v. United States.42 Federal officers there had obtained information through illegal wiretapping. While the wiretapped conversations themselves were not received in evidence, the defendant, following his conviction, sought to examine the prosecution on the uses to which it had put the information gained through the wiretapping. The lower courts rejected the effort, but the Supreme Court reversed, holding 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."43 Nevertheless, it made clear that a "but for" causal connection between law enforcement misconduct and trial evidence would not necessarily suffice to warrant exclusion of evidence. It endorsed Silverthorne's statement that the facts obtained by an illegal search do not thereby become "sacred and inaccessible," but it recognized that "[i]n practice this generalized statement may conceal concrete complexities."44 In language that came to beer heavily on the evolution of the fruit of the poisonous tree doctrine, it added that:

In sum, then, the fruit of the poisonous true doctrine requires the exclusion of the fruits of illegally obtained evidence46 unless, in the words used in Wong Sun v. United States,47 "granting establishment of the primary illegality, the evidence to which instant objection is made has been come at ... instead by means sufficiently distinguishable to be purged of the primary taint."48 This principle has resulted in considerable latitude in the application of the exclusionary rule in the Fourth Amendment context. It allows the receipt in evidence, despite law enforcement misconduct, of evidence that the government inevitably would have discovered legally in any case as well as evidence that is only tenuously connected to illegal government action.

The government assumes, for purposes of this motion, that Ghailani's statements to the CIA were coerced and that his statements [Redacted] were uncounselled. It maintains, however, that the taint of the coercion of Ghailani's uncounselled statements has been dissipated because (1) the government inevitably would have obtained Abebe as a witness by independent and lawful means, (2) the case falls outside of the "core application" of the fruit of the poisonous tree doctrine, and (3) the trial testimony would be sufficiently attenuated from the alleged illegality.

Like one ship passing another in the night, Ghailani essentially ignores the government's argument. He contends instead that Abebe may not be called because the government has failed to establish that Abebe's testimony ultimately is traceable to a source entirely independent of Ghailani's statements. This disconnect reveals a fundamental difference between Ghailani and the government that the former has not even acknowledged.

B. Purging the Taint—The Applicable Standard

Ghailani's position derives from Kastigar v. United States,49 the case in which the Supreme Court upheld the constitutionality of the current witness immunity statute.50 That statute provides that "no testimony or other information compelled under [an immunity] order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case ...."51 Once a defendant shows that he has testified pursuant to a grant of immunity with respect to matters pertinent to a federal prosecution, the government bears the burden of proving "that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony."52 In upholding the statute, the Court observed that its protection "is coextensive with the scope of the privilege" against self incrimination.53 Accordingly, Ghailani argues, the government may not use Abebe as a witness because it has failed to demonstrate that Abebe's testimony will have been obtained by means "wholly independent of Ghailani's allegedly coerced statements.54 But the argument is not persuasive.

As an initial matter, Ghailani's argument construes Kastigar's observation that the protection afforded by the immunity statute is coextensive with the privilege more broadly than the decision warrants. The issue to which that observation was directed was whether the grant of derivative as well as direct use immunity was sufficient to overcome the flaw that had led the Court to invalidate a predecessor statute that had conferred only direct use immunity.55 As Kastigar presented only a facial challenge to the statute, however, the Court there had no occasion to describe the precise meaning of the statutory language—"any information directly or indirectly derived from such testimony or other information"—or the exact scope of the privilege against self incrimination. It sufficed to hold that the statutory language was at least as broad as the Fifth Amendment. Nor was the Court obliged to consider the relationship, if any, between its reference to "a legitimate source wholly independent of the compelled testimony" and established doctrines that mitigate the severity of the fruit of the poisonous tree doctrine in the Fourth Amendment context. Hence, even if Ghailani were right that Kastigar applies here, such a conclusion would not resolve the present motion.

Ghailani's attempt to import Kastigar into this case is not well founded, quite apart from his overreading of the case. To be sure, the Supreme Court has not fully defined the exact scope of the exclusionary rule as applied to evidence derived from coerced confessions or Sixth Amendment violations.56 Nonetheless, it has applied poisonous fruit doctrine and reasoning developed in Fourth Amendment cases in the unlawfully obtained confession context,57 and it has indicated broadly that this generally is appropriate.58 Lower courts59 and commentators60 consistently have assumed that the poisonous fruit doctrine, with its qualifications, applies to coerced confessions and Sixth Amendment violations. Moreover, there is good reason for treating evidence derived from a coerced confession differently from evidence gained as a result of testimony compelled by a grant of immunity. Different policy concerns drive applications of exclusionary rules in each context.61

As the Second Circuit explained:

It therefore is not surprising that Ghailani has identified no case that applied Kastigar to the fruit of coerced confessions or of statements made in violation of the right to counsel.

Accordingly, Kastigar's requirement of proof of "a legitimate source wholly independent of" immunized testimony does not control this case. The principles governing the treatment of fruits of the poisonous tree in the Fourth Amendment context apply to the extent that their logic is consistent also with the underlying concerns of the Fifth and Sixth Amendments. The Court therefore turns to the government's contention that Abebe should be permitted to testify under three qualifications to the poisonous fruit doctrine, even on the assumption that it obtained Abebe as a witness by means of information that the CIA obtained from Ghailani under duress and in the absence of counsel.

II

A. Inevitable Discovery

The question whether the government would have identified, located, and gained the cooperation of Abebe without using Ghailani's statements depends upon each of several contingencies being resolved in the government's favor.

[Redacted]62, 63, 64, 65, [Editor's Note: Text and associated footnote references redacted by court.]

As the Second Circuit has made clear, the government cannot prevail on an "inevitable discovery" claim by showing that it is possible or even probable that it would have obtained the challenged evidence by untainted means:

"On the basis of Cabassa, district courts in our circuit have held that the inevitable discovery exception to the exclusionary rule is available only where a court has a `high level of confidence' that `each of the contingencies' needed to obtain the evidence legally would be resolved in the government's favor:

"To the extent that any confusion lingers in our circuit after Cabassa, we now expressly eschew the `reasonable probability' framework that some of our sister circuits have used to analyze, `inevitable discovery' cases. In its place—and consonant with the `teachings of Cabassa,' with the Tenth Circuit's methodology in Cunningham, and with the approach most recently takes by our district courts—we conclude that illegally-obtained evidence will be admissible under the inevitable discovery exception to the exclusionary rule only where a court can find, with a high level of confidence, that each of the contingencies necessary to the legal discovery of the contested evidence would be resolved in the government's Sever."66

This Court cannot exclude the possibility that the government would have found Abebe on the basis of [Redacted] statements since. But it would have been roughly comparable to finding a particular individual named John or Bill in a state with a population around the size of Maine or New Hampshire—or, at best, a city about the size of Buffalo—while knowing little more about him than that he was regarded as prominent in a significant industry in the state or city. To be sure, the government points also to information more recently provided by Abebe—that there were only ten or twenty explosives brokers in Arusha, that be was the only such broker named Hussein, and that these brokers congregated at a particular bar where Abebe was known—to buttress its inevitable discovery argument. The value of this additional evidence, however, depends upon whether the FBI [Redacted] And even if it had done so and thereby found Abebe, the question whether Abebe would have been cooperative in those circumstances would have remained uncertain.

Given these uncertainties, the Court does not have the requisite high level of confidence that the government inevitably would have obtained Abebe's testimony about Ghailani's statements. Accordingly, the receipt of Abebe's testimony therefore would not be justified on this basis.67

B. The Core Application Doctrine

The core application doctrine grew out of the Supreme Court's view that the:

Accordingly, it holds in essence that:

In striking that balance, moreover:

The government here contends that the CIA interrogated Ghalland for the purpose of obtaining intelligence thought directly relevant to national security objectives. Any violation by it of Ghalland's Fifth and Sixth Amendment rights therefore occurred in circumstances is which the CIA probably did not contemplate, and in any case was not likely motivated by, a possible criminal prosecution of Ghalland. Excluding evidence that is relevant to a criminal case and that was obtained as a collateral consequence of a national security investigation, it contends, would not serve the deterrent purpose of discouraging illegal law enforcement behavior. The government's argument, however, is not persuasive.

In the search and seizure cases that are the stuff of Fourth Amendment exclusionary rule decisions, the constitutional violation is the search or seizure itself. The exclusionary rule is not "a personal constitutional right."71 Its "purpose... is not to redress the injury to the privacy of the search victim: `[T]he ruptured privacy of the victims homes and effects cannot be restored. Reparation comes too late.'"72 Rather, it "is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures."73

This case is different. Ghailani's position is that he was coerced into making statements that led to Abebe and that Abebe's testimony therefore cannot properly be used against him. In consequence, it is necessary to examine the constitutional treatment of coerced statements in order to determine whether the rationale of the core application doctrine applies here.

The rule limiting the admissibility of confessions and statements to those made voluntarily developed at common law but quickly found a constitutional foundation in the United States. In Bram v. United States,74 a federal criminal prosecution, the Supreme Court said that the voluntariness rule "is controlled by first portion of the fifth amendment ... commanding that no person `shall be compelled in any criminal case to be a witness against himself.'"75 In the years prior to the application of the Fifth Amendment privilege of self incrimination to the states in Malloy v. Hogan,76 the Court applied the Due Process Clause of the Fourteenth Amendment to reach the same rule with respect to coerced confessions introduced in state prosecutions.77 Since Malloy, the Court has continued to rely in coerced and involuntary confession cases on both the Due Process and the Self Incrimination Clauses.78

The constitutional footings of the prohibition on the use of coerced confessions and statements are important here. The constitutional violation in a search and seizure case is complete when government officials make the unlawful search or seizure. A coerced confession case, in contract, may involve more than one constitutional violation and, where it does, those violations may occur at different times and by different actions. Government torture or abuse may violate the Due Process Clause, which may "provide relief in appropriate circumstances" regardless of whether the abuse succeeds in obtaining evidence or, if it does, whether the evidence ever is used at trial.79 But the Self incrimination Clause is a specific trial right of criminal defendants that may be violated whenever a coerced confession or statement or the fruit of either is introduced at trial.80

The significance of this is plain. To the extent that Ghailani's complaint is the alleged abuse and torture vel non, he asserts a due process claim based on outrageous government misconduct. The considerations of deterrence that underlie the cure application doctrine, in addition to matters dealt with by this Court previously in another context,81 are pertinent to that claim. But deterrence is not the primary concern when the question is whether Abebe's testimony should be excluded on the ground that it would be the fruit of Ghailani's coerced statements. The concern at that point is whether introduction of testimony derived from compelling Ghailani to provide evidence against himself would violate the Self Incrimination Clause. Hence, the exclusionary rule with respect to fruits of coerced statements rests more heavily on the need to prevent a new and separate constitutional violation—receipt of the product of the coerced statements—than on considerations of deterrence of official misconduct. In consequence, the rationale of the core application doctrine does not apply to this motion as it does in search and seizure cases.82

C. Attenuation

We have noted above that the Supreme Court, as surly as Nardone, Indicated that the connection between unlawful government conduct and evidence offered at trial "may ... become so attenuated as to dissipate the trial" and thus permit receipt of that proof.83 This is particularly so when the proof in question is the testimony of a witness.

In United States v. Ceccolini,84 the Supreme Court related that "verbal evidence which derives ... immediately from an unlawful entry and an unauthorized arrest ... is no less the `fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion."85 At the same time, however, it held that the testimony of a live witness nevertheless is property received in evidence where the connection between illegal government conduct and the testimony is sufficiently attenuated. Among the determinative factors are the willingness of the witness "to freely testify"86 and the directness of the "link between the illegality and [the witness's] testimony,"87 a factor concerned chiefly with whether exclusion of the testimony would serve the exclusionary rule's purpose of deterring official misconduct.88 In describing the significance of the willingness of the challenged witness to testify, the Court wrote:

Moreover, as "the cost of excluding livewitness testimony often will be greater, a closer, more direct link between the illegality and that kind of testimony is required" in order to exclude it.90 "Where the cooperation of such a `found' witness is truly the product of that individual's free will, unaffected by the [illegal government action], the purpose of the exclusionary rule would not be served by disallowing the testimony."91

In light of these considerations, the Second Circuit has directed courts to "assess the effect of the search [and analogous illegal government action] upon the exercise of the witness' free will, and where cooperation is not induced by the police misconduct, testimony will be received notwithstanding that the unreasonable intrusion was one step in the series of events which led to the witness' testifying."92 In particular, a court is obliged to consider (1) the "stated willingness of the witness to testify," (2) "the role played by the illegally seized evidence in gaining his cooperation," (3) "the proximity between the illegal behavior, the decision to cooperate and the actual testimony at trial," and (4) "the [motivation of the police] in conducting the search."93

Having thus described the essentials of the attenuation doctrine, the first question is whether and to what extent it applies here in light of the Fifth and Sixth Amendment roots of Ghailani's claim. As the Leonardi factors make clear, attenuation analysis addresses two different concerns in determining whether to admit evidence derived from illegal government conduct. The first three factors look to the closeness of the connection between the testimony of the witness and the coercion applied to the defendant. This is consistent with self incrimination privilege interests because it seeks to determine whether the derivative testimony truly would be tainted by the coercion or whether, instead, the casual link is so tenuous that the testimony should not be treated as fruit of the defendant's coerced statements. The fourth factor, the motive of the governmental actors, on the other hand goes to the different question whether exclusion would deter future governmental misconduct of the type at issue, a pertinent consideration, but one that is not the primary focus of the exclusionary rule in the self incrimination context. Nevertheless, as all four factors are pertinent in varying degrees in coerced confession and statement cases, there is an appropriate role for attenuated analysis in cases such as this. The fact that deterrence plays a much smaller role in the application of the exclusionary rule in such cases, however, means that the weight given to the first three factors should be greater than in a Fourth Amendment case. The Court therefore proceeds to the government's attenuation argument.

1. Abebe's Willingness to Testify

The government claims that Abebe, should be appear, would be doing so voluntarily. It relies on the facts, among others, that the FBI's most recast contact with him was in his home, that he has said that he is willing to appear, that be it not subject to compulsory process gives the location of his residence [Redacted] In addition, two law enforcement agents involved in questioning Abebe after his arrest claim that be was cooperative immediately and that no threats was used to induce his cooperation.94

It is entirely possible that Abebe, if he were to appear, would be a willing witness. But the burden of proof on the attenuation claim is on the government.95 It has submitted no affidavit from Abebe. Moreover, there is evidence that arguably undermines the government's claim. The circumstances of Abebe's initial questioning, at least to the extant that the Court has been made aware of them, perhaps suggest that he is not simply a public spirited citizen who "his come forward [to] offer evidence entirely of [his] own volition."96 He was asserted by Tanzania, flown to a distant location, held there for days, and questioned by Tanzanian, police before the FBI questioned him. Indeed, he told the Tanzanian authorities at the time of his arrest "that he know this day would come—that be had been waiting eight years for the authorities to locate him."97 The record discloses nothing about what happened while he was in Tanzanian custody, and it is sketchy even about what took place after the FBI arrived. We know only that Abebe was released after he was questioned by the FBI and promised to appear as a witness in this case.

2. The Role Played By the Illegality Seized Evidence in Gaining Abebe's Cooperation

"Where cooperation is not induced by the alleged police misconduct, testimony will be received notwithstanding that the unreasonable intrusion was one step in the series of events which led to the witness' testifying."98 The government therefore bears the burden of showing that whatever may have resulted in Abebe's cooperation was not a consequence of a violation of Ghailani's rights to order to prevail on this aspect of the attenuation analysis.99

The government claims that Ghailani's custodial statements have played no role in motivating Abebe's testimony. [Redacted]

Despite these uncontroverted assertions, there remains ambiguity on this point as well. [Redacted]

3. The Proximity Between Ghailani's Allegedly Coerced and Uncounselled Statements, Abebe's Decision to Cooperate, and His Testimony at Trial

The ambiguity [Redacted] if any, affects the Court's analysis of the third factor in the attenuation analysis as well.

[Redacted]100, 101, 102, 103, 104, 105, 106, 107 [Editor's Note: Text and associated footnote references redacted by court.]

If in fact Abebe testifies at Ghailani's trial, at least [Redacted] will have elapsed since the latest possible date [Redacted] of the alleged governmental misconduct leading to Abebe's identification and cooperation. Such a substantial period of time between the alleged illegality and the witness's testimony at trial, if in fact it is voluntary, would favor the government. [Redacted]

4. The Government Interrogators' Motives in Conducting the Interrogations

The government argues that the fourth factor—the interrogators' motives—courts in its favor because "questioning of the defendant by CIA officers ... was not designed to elicit evidence that would be used in a subsequent trial but rather to obtain intelligence in connection with threats to national security."108 This was the case with respect to the RDI Program in general,109 and nothing in the record contradicts the government's assertion that national security motivated the CIA interrogations that elicited Ghailani's statements about Abebe.

[Redacted] That is not sufficient, however, to raise an issue of fact as to the CIA's motive in questioning Ghailani in the first place. The CIA had reason to believe that Ghailani was involved in bombing two American embassies. The Identities and methods of others involved in those bombings, including the source of the explosives, were of critical importance to national security because the individuals involved and methods used might be applied against other targets in the future. The fact that the CIA several years later, having been aware of the FBI's interest in the bombings, [Redacted] does not undercut the CIA's contentions as to its motive in questioning Ghailani, at least where the significance of the subject of inquiry with Ghailani was so related to national security.

* * *

In the last analysis, the only attenuation factor that can be resolved on the present state of the record in the CIA's motive in questioning Ghailani. [Redacted] The remaining factors are subject to computing inferences. It is not clear that Abebe truly would be the volunteer that the government claims, that unlawfully obtained evidence did not play a role in securing Abebe's cooperation, or that the interval between the alleged misconduct in obtaining from Ghailani the information that led to Abebe and Abebe's agreement to cooperate was as long as the government doubtless would have it. Accordingly, Ghailani is entitled to a hearing on these issues.

Conclusion

The Court will hold a hearing on the issues relating to attenuation that are described above. It will take testimony from any FBI, CIA and Tanzanian witnesses the government elects to call and from Abebe if the government wishes to produce him. It will hear the testimony of witnesses other than Abebe starting at 10 a.m. on September 14, 2010. It will hear the testimony of Mr. Abebe and any Tanzanian witnesses at that time or, if the government prefers, at an in limine hearing during the trial. The government in to notify the Court and defense counsel by August 28, 2010, as to the identities and affiliations of its intended FBI, CIA and Tanzanian witnesses and whether it intends to call Abebe and any Tanzanian witnesses at the pretrial hearing.

This memorandum opinion contains classified information the public disclosure of which would pose a serious danger to the national security. Accordingly, it shall be filed with the Court Security Officer and remain in an appropriate secure facility in accordance with established procedures until further ordered by this Count.

SO ORDERED.