By Jonathan Stempel
NEW YORK (Reuters) - A former driver for Osama bin Laden and a witness linked to plots to bomb U.S. airliners may testify by video at the U.S. trial of Suleiman Abu Ghaith, a son-in-law of bin Laden and former al Qaeda spokesman charged with conspiring to kill Americans and providing material support to terrorists.
U.S. District Judge Lewis Kaplan in Manhattan on Wednesday granted a defense motion to allow testimony from Salim Hamdan, perhaps best known as the plaintiff in a 2006 U.S. Supreme Court decision that found unconstitutional the military commissions set up for detainees at Guantanamo Bay in Cuba. Hamdan's subsequent conviction was overturned in October 2012.
According to Abu Ghaith's lawyers, Hamdan would testify that he never saw the defendant participate in any plotting, and that Abu Ghaith's inclusion on a "brevity card" that contained names of members of al Qaeda's inner circle would not necessarily suggest allegiance to al Qaeda.
Prosecutors had argued that testimony would be unreliable, and Kaplan agreed that some of it would likely be inadmissible.
But the judge said testimony about the so-called brevity cards, which apparently also included names of car mechanics and "innocent bystanders," could rebut the government's suggestion that Abu Ghaith's appearance on one such card demonstrated his guilt.
Kaplan also said testimony that al Qaeda camps were used to train people to fight in the Middle East could weigh against prosecutors' claim that any speeches that Abu Ghaith made there were meant to further a conspiracy to kill Americans.
In allowing video testimony, Kaplan said Hamdan, now a Yemen resident, opposes and may be "legally barred" from traveling to the United States.
WITNESS TIES TO SHOE BOMBER
Kaplan also granted a request by prosecutors to allow video testimony from an unnamed witness who based on his description in court papers is Saajid Badat, who plotted with "shoe bomber" Richard Reid to blow up airplanes.
Kaplan's opinion does not discuss the witness's whereabouts.
Prosecutors expect the witness to testify that Abu Ghaith knowingly took part in al Qaeda's conspiracy to kill Americans; knew of plans to bomb airplanes in the United States after the September 11, 2001 attacks; and visited the al Qaeda camp Matar, which provided training in "urban warfare."
The defense claimed that testimony from the witness would also be unreliable because he had never met Abu Ghaith and was not involved in activity underlying the government's case.
But Kaplan said the testimony could advance the government argument that Abu Ghaith was making videotaped threats to bomb airplanes at the same time such a plot was being hatched.
He also said the witness' presence at Matar while Abu Ghaith gave speeches there "potentially is probative" of the defendant's knowing involvement in the alleged conspiracy.
Badat has testified by video in other terrorism trials in the United States, following his 2005 guilty plea in Britain and subsequent imprisonment for conspiring with Reid.
Terrorism charges are pending against Badat in the United States, and prosecutors have been told Badat would be arrested if he came to the country to testify in person.
Stanley Cohen, a lawyer for Abu Ghaith, said he is pleased with the decision to allow Hamdan to testify. A spokeswoman for U.S. Attorney Preet Bharara in Manhattan declined to comment.
Reid is serving life in prison after passengers overpowered him as he tried to ignite explosives in his shoe on an American Airlines plane bound for Miami on December 22, 2001. The failed attack changed security at airports nationwide.
Jury selection in Abu Ghaith's trial is set for February 24.
The case is U.S. v. Abu Ghayth, U.S. District Court, Southern District of New York, No. 98-cr-01023.
(Reporting by Jonathan Stempel in New York; Editing by Cynthia Osterman)