Court Rejects Malaysian Accomplice S Deposition Against Bali Bomber Hambali

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Nazir Lep and Farik Amin were repatriated from Guantanamo Bay in December and are being detained at an unknown destination following a plea bargain reached with the US government.
PETALING JAYA: US prosecutors in Guantanamo, Cuba, have failed to admit into evidence sworn depositions given against the mastermind of the 2002 Bali bombings by two Malaysians as part of a plea bargain deal.
The pre-trial agreement between Nazir Lep and Farik Amin and the US government saw them plead guilty to abetting the alleged mastermind, Nurjaman Encep, also known as Hambali.
The duo were sentenced to 23 years in prison last January, but under the terms of the deal, may be released after five years and repatriated to a third country. They were repatriated in December and are presently detained at an unknown destination.
Although made only as regards Nazir’s deposition, the prosecution appears to accept that the court ruling also extends to Farik’s testimony, and withdrew a similar motion for admission.
Presiding judge Wesley A Braun said the US government had not presented evidence of any effort to secure Nazir’s attendance to testify — either in person or remotely.
“According to the (US) government, the only fact it needs to present (is that the witness) is outside the scope of the US’s subpoena power. The court disagrees with this,” Braun said in the March 12 ruling made public on Wednesday.
He said that when addressing the appropriateness of admitting a deposition under Rule 804(a)(6) of the Military Rules of Evidence, the court must first determine whether the witness is absent despite good-faith efforts on the part of the government to locate and produce him.
“Only after determining that the government has in good faith made efforts to have the witness testify, may the court rely on the rules to approve the admission of the witness’ deposition at trial,” he said.
Therefore, Braun said, the government must either show that it has made efforts to secure the witness or demonstrate that he cannot be legally required to appear before the court.
“Considering the facts before this court and the lack of a trial date, the court finds that an unavailability determination cannot be made at this time. Therefore, the request to pre-admit Nazir’s deposition is not ripe,” he said. - FMT

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