The Opinion Excluding Abebe from Testifying at the Ghailani Trial...

By Robert Chesney
Friday, October 15, 2010, 10:52 AM

...is available here.  It's a long opinion, but the long and short of it is that the court did not credit Abebe's claim that he was testifying voluntarily, and that this was dispositive from the point of view of taint-attenuation doctrine under the Fifth Amendment. 

Also of interest: the final footnote on p. 59 of the opinion (not the pdf, but the opinion itself), which observes that "it is far from clear that Abebe's testimony would be admissible if Ghailani were being tried by military commission, even without regard to the qeutsion whether the Fifth Amendment would invalidate any more forgiving provisions of the rules of evidence otherwise applicable in such a proceeding."  The footnote then cites to provisions in the Military Commissions Act and the Military Commission Rules of Evidence that "preclude or restrict the use of 'statements obtained by torture or cruel, inhuman, or degrading treatment,' and evidence derived therefrom, and [that] could require exclusion of Abebe's testimony."  The footnote then concludes that "[e]ven if they do not, the Constitution might do so, even in a military commission proceeding."