## Facts

- In June 2001, Sulaiman Abu Ghayth traveled to Afghanistan, where he met repeatedly with Osama bin Laden, despite knowing bin Laden was responsible for the 1998 U.S. embassy bombings and the 2000 attack on the U.S.S. Cole.
- Abu Ghayth agreed to assist bin Laden as a religious scholar and public speaker and gave speeches to men at al Qaeda training camps, including remarks about pledging allegiance to the leader of the Afghan Taliban.
- After leaving Afghanistan briefly, Abu Ghayth returned on September 7, 2001.
- Four days later, following the September 11 attacks, Abu Ghayth was summoned to bin Laden’s hideout, where bin Laden claimed responsibility and invited Abu Ghayth to help “deliver al Qaeda’s message.”
- Abu Ghayth appeared in a video praising and justifying the September 11 attacks and later appeared in three additional videos that threatened the United States with further airplane attacks and warned opponents not to fly or live in high-rise buildings.
- In 2013, U.S. authorities arrested Abu Ghayth abroad and brought him to face charges in the Southern District of New York.
- The government charged Abu Ghayth with conspiracy to kill U.S. nationals, relying in part on the threats made in the videos.
- During trial, Abu Ghayth sought to obtain testimony from an “enemy combatant” witness whom he claimed would show he lacked advance knowledge of the September 11 attacks; the court denied the request, and Abu Ghayth moved to renew it.

## Issues

1. Whether the defendant’s renewed request to obtain testimony from an enemy-combatant witness should be granted to support the defense claim that the defendant lacked foreknowledge of the September 11 attacks.

## Decision

- The court denied the renewed motion.
- The court concluded the requested testimony did not justify the extraordinary measures and delay associated with securing testimony from an enemy-combatant witness and did not satisfy the required showing for such relief.

## Legal Principles

- A court may deny requests to secure witness testimony where the defendant fails to show the testimony is sufficiently material to a disputed issue at trial, rather than speculative, collateral, or cumulative.
- Measures such as depositions in criminal cases are permitted only on a strong showing (commonly framed as “exceptional circumstances” and “in the interest of justice”), including a concrete proffer that the testimony will be material and that comparable evidence cannot reasonably be obtained through other means.
- The Sixth Amendment right to compulsory process does not require a court to authorize procedures that would cause substantial delay or burdens where the expected testimony has limited value to the elements the government must prove.

## Conclusion

In this pretrial/trial-stage decision, the Southern District of New York rejected Abu Ghayth’s renewed effort to obtain testimony from an enemy-combatant witness offered to show Abu Ghayth lacked advance knowledge of the September 11 attacks. The court held that the proffer did not warrant the extraordinary steps, complications, and delay that would accompany securing such testimony and that the renewed request failed to make the necessary showing that the testimony would materially affect the issues the jury had to decide on the charged conspiracy to kill U.S. nationals.


United States v. Abu Ghayth, 17 F. Supp. 3d 289 (2014)