Ghailani Still Faces Stiff Penalty for Bombings

Ahmed Khalfan Ghailani CBS

When he is sentenced in January, al Qaeda operative Ahmed Khalfan Ghailani, 36, faces a minimum 20 years of imprisonment, and a possible life sentence, for his conviction Wednesday for his role in the 1998 U.S. embassy bombings in East Africa.

In the first federal terrorism trial of a former detainee at the prison camp at the U.S. naval base in Guantanamo Bay, Cuba, a civilian jury found Ghailani guilty, but only of one of 285 counts levied against him: conspiracy to destroy buildings and property of United States by means of an explosive.

Although the jury determined Ghailani had a hand in a conspiracy that resulted in death, the panel found him personally not guilty on all 224 murder counts -- 11 for those who died in truck bombing of the American embassy in Dar es Salaam, Tanzania, the focus of his trial, and for the 213 people who died in nearly simultaneous explosion in Nairobi, Kenya, on Aug. 7, 1998.

"At the start of this trial, we believed Ahmed was truly innocent of all these charges," lead defense attorney Peter Quijano said outside the Lower Manhattan courthouse Wednesday evening. "We still truly believe he is innocent of all the charges."

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The jury found Ghailani not guilty of four other conspiracy counts, including the top count of the indictment, al Qaeda's global conspiracy to kill Americans, which would have guaranteed the same life sentence being served by four men convicted in the embassy bombings conspiracy in a 2001 trial.

U.S. District Judge Lewis Kaplan, who presided over the month-long trial, scheduled Ghailani's sentencing hearing for January 25, 2011, at 11 a.m.

"He will face, and we will seek, the maximum sentence of life without parole when he is sentenced in January," said Preet Bharara, U.S. attorney for the Southern District of New York, in a written statement.

The trial of Ghailani, a Tanzanian from Zanzibar, was widely seen as a test case for resolving the legal limbo of dozens of detainees who remain at Guantanamo, including five implicated in the September 11th conspiracy. Among them are alleged lead 9/11 attack planner Khalid Shaiykh Mohammed, who has been in U.S. custody since 2003, alleged attack coordinator Ramzi Binalshibh, who was captured in 2002, and alleged financiers of the 19 hijackers who crashed jet liners into the World Trade Center, the Pentagon, and a field in Pennsylvania nine years ago.

A year ago, following President Obama's promise to close Guantanamo, Attorney General Eric Holder announced a decision to try Mohammed, Binalshibh, and their co-defendants in the same federal courthouse where Ghailani faced justice, but in the months since then, Holder has backtracked, facing protests from New York City officials over security concerns and costs, as well as protest from those who believe military commissions at Guantanamo are the proper venue.

"The Obama Administration recklessly insisted on a civilian trial for Ahmed Ghailani, and rolled the dice in a time of war," said the leaders of Keep America Safe, Liz Cheney, daughter of former Vice President Dick Cheney, Debra Burlingame, sister of the pilot of the Pentagon plane, and Bill Kristol, the conservative commentator.

"The Department of Justice says it's pleased by the verdict. Ask the families of the victims if they're pleased. And this result isn't just embarrassing. It's dangerous. It signals weakness in a time of war," the group continued in a written statement. "We urge the president: End this reckless experiment. Reverse course. Use the military commissions at Guantanamo that Congress has authorized."

Cully Stimson, a senior legal fellow at the conservative Heritage Foundation, also sees military commissions, where the rules of evidence are looser and the rights of defendants more restricted, as a better venue for the alleged perpetrators of 9/11.

"They committed a war crime, and standard war crimes should be put to a military commission. Those people who say the Ghailani case is a test run are wishful thinking," Stimson said in an interview with CBS News.

Stimson, who was an assistant defense secretary for detainee affairs in the Bush administration, saw federal court as an appropriate venue only for Ghailani, because his case was entirely about the embassy bombings 12 years ago. There was no evidence about his activities since then or in the company of al Qaeda in Pakistan.

"Unlike all the other detainees at Guantanamo who may go through commissions or a federal trial, this case is all pre-9/11 activity," Stimson said.

When asked what this case portends for other Guantanamo detainees, Ghailani defense attorney Quijano deferred to the Attorney General but offered, "Even before this verdict, I believed in this system, and I believe in jury trials."

The jury was told that Ghailani was captured in Pakistan in July 2004, but was provided no information about his alleged activities while a fugitive for six years following the Africa bombings or anything about his six years in custody .

He spent two years in a secret CIA prison overseas, where he was subjected to "enhanced interrogation techniques" his lawyers called torture. Then he was moved to Guantanamo for three years before his transfer to the U.S. last year. He has been held in the high security wing of the Metropolitan Correctional Center adjacent to the courthouse.

In a critical decision on the eve of the trial, Judge Kaplan prohibited the government from calling a Tanzanian miner, Hussein Abebe, who testified in a pretrial hearing that he sold Ghailani TNT in 1998, because the government learned of that witness only from Ghailani's interrogations while in military custody where he was not apprised of his rights or granted counsel.

"It is fair to say it changed the way the case would be tried," Quijano said.

Avoiding another legal showdown, prosecutors did not try to introduce any of Ghaliani's post-arrest statements in the CIA-run prison or Guantanamo, however, Ghailani never confessed to knowing the targets in the embassy bombings.

The jurors reached their unanimous verdict on their fifth day of jury deliberations and did not speak to reporters or the attorneys afterwards. As is common practice in al Qaeda and some other terrorism trials, the jurors remain anonymous, known only to the court by their jury pool and jury seat numbers. The jury was drawn from a pool of more than a thousand prospective jurors who filled out questionnaires at the Lower Manhattan courthouse in late September.

The multiracial panel of was split evenly between men and women. Three jurors were white, while the rest were black or Hispanic.

On Monday, juror number 12, a middle-aged black woman, sent a note to the judge complaining that she was being attacked by other jurors for reaching a different conclusion than the others that she refused to change. The judge declined her request to be excused. While many trial watchers and participants drew the inference the jury could be deadlocked, perhaps 11 to 1 for guilt, that was never confirmed, nor did any juror shed light on whether the result was a compromise verdict.

Over the course of the past month, the jury heard 13 days of testimony and evidence, with 50 prosecution witnesses and hundreds of government exhibits, and two days of closing arguments. More than a third of the witnesses, including embassy bombing survivors from Africa and FBI agents, had previously testified in the 2001 trial. The defense called no witnesses, nor did the defendant testify.

The 1998 truck bombing of the U.S. embassy in Tanzania's capital of Dar es Salaam left 11 people dead and 85 injured. It followed by 10 minutes a nearly identical strike on the U.S. embassy in Kenya, where 213 people, including 12 Americans were killed. Al Qaeda claimed responsibility for the coordinated attacks.

Prosecution witnesses said Ghailani bought the used Nissan refrigeration truck that was converted to a weapon of mass destruction in Tanzania loaded with a thousand pounds of TNT and that he obtained some of the 19 or 20 oxygen and acetylene gas tanks attached to the bomb to make it more lethal. The FBI found a leftover electric detonator in Ghailani's house.

"They presented a very strong case. There were some flaws, there were some omissions in evidence, but they presented the best case they could present. And you had a defense that was there to stand up and say, 'wait, what about this? What about that?' To ask questions when they're appropriate," Daphne Eviatar, a senior associate in the law and security program at Human Rights First, told CBS NEWS in an interview.

Eviatar, who attended parts of the trial and has attended military commission proceedings in Guantanamo, said civilian trials in federal court, the preferred option of the Obama Administration, are a more tested system likely to reach results that will withstand legal challenges.

The government has achieved more than 200 convictions in terrorism-related prosecutions since 9/11 and a 90 percent conviction rate, according the the NYU Center on Law and Security, which tracks theses cases.

"We really have the resources to do it in federal court, we have the ability to show the world that we care about fair trials, we actually apply the rule of law, that's something important in the United States," Eviatar said.

Ghailani, who wore his standard court attire of slacks, dress shirt, and tie, was calm and confident before the verdict was read, according to his attorneys. The jury sent a note that it completed its deliberations around 520pm, ten minutes before they were scheduled to go home.

When court convened 25 minutes later, the judge sealed the 26th floor courtroom and looked over the 21 page verdict form. At least eight plain clothes U.S. Marshals, more than the usual pair flanking the defendant, were present.

As the clerk asked the jury foreman their findings, count by count, the first four responses for terror conspiracy were "not guilty." Count five, for the conspiracy to destroy American property, brought the sole guilty verdict. Ghailani was found not guilty of the counts for carrying out the bombings themselves or the murders that resulted.

Ghailani hugged his defense team and smiled before he left court.

"He thanked us," Quijano said.

With Ghailani facing a 20 year minimum sentence, his attorneys plan to argue that he should get credit for six years served in U.S, custody, a consideration with other al Qaeda suspects detained as "enemy combatants" prior to seeing their legal situations resolved in federal court, such as Jose Padilla and Ali al-Marri.

The defense teams also plans to file a motion for a new trial on the one conspiracy count for which Ghailani was convicted.

If prosecutors fell short, they failed to persuade all the jurors that Ghailani knowingly and willfully participated in the overall al Qaeda conspiracy or that he knew its lethal goals in East Africa.

"We never disputed that he engaged in certain conduct," Quijano said of Ghailani. "The question both strategically as well as legally, was whether there was proof that he knew."

He continued, "He was used by his friends the same way his friends used a parade of government witnesses. None of them knew."
  • Phil Hirschkorn

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