The first test of Barack Obama's overdue promise to close Guantanamo and put accused al-Qaeda terrorists on trial in federal courts ran smack into the Constitution when a judge ruled that evidence extracted by CIA agents using so-called extreme interrogation methods couldn't be used against the accused bomber.
That won't help Omar Khadr, the Canadian whose trial will go ahead in the revised, but still hugely controversial, military war-crimes tribunals in Guantanamo later this month.
Evidence extracted from Mr. Khadr, who was first interrogated when he was still lying on a hospital bed with serious head wounds and later terrified by tales of gang rape, will be allowed at his war-crimes trial because prosecutors contend that his confessions were also made in subsequent, non-coercive sessions.
In New York on Wednesday, where the trial of Ahmed Khalfan Ghailani, the Tunisian accused of being part of the 1998 bomb plot that killed 224 outside U.S. embassies in Tanzania and Kenya was in its first day, District Judge Lewis Kaplan ruled he wasn't going to allow prosecutors to use coerced testimony.
The setback may force yet another re-examination of the President's pledge to try terrorists in open court. "We intend to proceed with this trial … [it's too]early to say that at this point [that]the Ghailani matter is not going to be successful," Attorney-General Eric Holder said after the ruling.
Mr. Ghailani was held in a secret CIA prison overseas by the Bush administration like other so-called high-value terrorist suspects, including 9/11 mastermind Khalid Sheikh Mohammed.
The Obama administration originally said it would put the 9/11 plotters on trial in Manhattan, near where the twin towers were destroyed, but backed down in the face of a storm of political protest. The Ghailani trial was seen as the administration's next attempt to break with the Bush legacy of military commissions and prisons on the naval base in Guantanamo Bay, Cuba, a locale selected originally to keep detainees out of the reach of constitutional protections.
Mr. Ghailani and "high-value" detainees are now held at Guantanamo, along with about 165 other prisoners, including Mr. Khadr, 23, the only Canadian and now the only Westerner remaining at the now-notorious prison.
It remains unclear what criteria the Obama administration has used to pick some cases - such as Mr. Ghailani's - to go to federal court while others - such as Mr. Khadr's - remain before military commissions.
Mr. Khadr, who was only 15 when he was captured after a firefight that left him gravely wounded, is the only alleged al-Qaeda fighter charged with murder for a combat encounter with U.S. special forces. No similar charges have been laid in connection with the more than 5,000 other U.S. battlefield deaths in Iraq and Afghanistan since 2001.
The CIA used so-called enhanced interrogation methods - approved by former president George W. Bush and outlawed by Mr. Obama - to extract from Mr. Ghailani the name of Hussein Abebe, the man who purportedly sold him the explosives used in the massive blasts that killed hundreds outside two U.S. embassies in Africa.
In his ruling, the judge said "Abebe was identified and located as a close and direct result of statements made by Ghailani while he was held by the CIA," and then told prosecutors they couldn't use him as a witness.
Under the less stringent rules governing the Obama administration's revised war-crimes trials at Guantanamo, a military judge has ruled that statements made by Mr. Khadr and interrogators who threatened him - with death by gang raping - can be used by the prosecution.
Mr. Khadr, who has repeatedly fired his U.S. civilian and military attorneys, is expected to be the first Westerner to face a full trial in the Guantanamo war-crimes tribunals and the first person captured as a juvenile to face a war-crimes trial since the Nuremberg tribunals of Nazi criminals after the Second World War.