Federal prosecutors have decided against appealing a ruling by a trial judge that prohibits a key witness from testifying in the trial of Ahmed Khalfan Ghailani, the first former Guantanamo Bay prison detainee scheduled for a civilian trial in U.S. federal court.
The change of heart puts the trial back on track to commence on Tuesday, Oct. 12, in Manhattan federal court.
"The government does not wish to delay the trial in order to make an appeal," prosecutors from the Southern District of New York wrote to U.S. District Judge Lewis Kaplan on Sunday.
Kaplan ruled last Wednesday that a Tanzanian man who has testified in a pretrial hearing that he sold Ghailani crates of TNT prior to the 1998 East Africa embassy bombings would not be permitted to appear before the jury.
Kaplan said prosecutors had "failed to prove" that the testimony of the man, Husein Abebe, was "sufficiently attenuated from Ghailani's coerced statements" during his time in CIA custody "to permit its receipt in evidence."
Prosecutors initially said they intended to appeal Kaplan's decision to the Second Circuit Court of Appeals in New York.
According to the indictment and testimony in the 2001 embassy bombings trial, Ghailani allegedly bought the Nissan refrigeration truck used in the Tanzania attack.
Ghailani also acquired some of the explosives for the al Qaeda conspiracy, according to Abebe, whom the government learned about from Ghailani in 2006.
In 2001, when the government convicted four other men for the twin truck bombings of U.S. embassies in Nairobi, Kenya and Dar es Salaam, Tanzania, which killed 224 people and injured more than four thousand others, Ghailani was one of several fugitives in the case.
Ghailani was captured in Pakistan in 2004, initially held in a secret CIA prison, and later, at moved to the U.S. military prison at Guantanamo Bay, Cuba, in 2006. The Justice Department took custody of Ghailani last year.
"Even without Hussein Abebe's testimony, the government is prepared to meet its burden of proving the defendant's guilt beyond a reasonable doubt," the prosecutors' letter said.
The Assistant U.S. Attorney who signed the letter, Michael Fabiarz, has previously called Abebe a "giant" witness.
The witness who testified in 2001 about the bomb truck sale has died.
Still, the letter said, "Many foreign witnesses...would be greatly inconvenienced by a delay of uncertain length."
The trial's opening statements are expected Tuesday after final jury selection. A pool of 1,029 prospective jurors who filled out questionnaires at the courthouse last month has been whittled down to 72 people.
Before Sept. 11, 2001, the embassy bombings 12 years ago were al Qaeda's deadliest assault on Americans.
"Many victims, who have long waited to see the defendant tried for his
crimes, have already arrived in New York, some having traveled considerable distances," the letter said.
FBI Agents questioned Ghailani after he was moved to Guantanamo, but prosecutors have decided not to call those agents as witnesses, in part, who because Ghailani spoke to the agents without the advice of counsel.
The first four al Qaeda operatives convicted are serving life sentences at the federal "supermax" prison in Florence, Colorado. Among the indicted fugitives still at large are al Qaeda leader Osama bin Laden and his deputy Ayman al-Zawahiri.