Defense Attorney: Al Qaeda Suspect is Innocent

Ahmed Khalfan Ghailani (left) as defense counsel Peter Quijano (right) makes his argument.
CBS/Jane Rosenberg
The lead defense attorney for Ahmed Khalfan Ghailani told a jury Tuesday that the alleged al Qaeda operative is "not only not guilty, but he is innocent" of any "conscious intent" of participating in the terror group's attack 12 years ago on American embassies in East Africa that left 224 dead and several thousand people injured.

Peter Quijano said in his closing argument that the "proof is almost nonexistent," especially on the point of whether Ghailani was aware of the goals of the terror conspiracy that resulted in twin truck bombs detonating outside the embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, on August 7, 1998.

Quijano conceded a major part of the government's case - that al Qaeda, the radical Islamic "heinous organization" led by Saudi exile Osama bin Laden, was behind the attack.

"We do not dispute that these monsters plotted and blew up two embassies and willingly killed hundreds," he said. But he insisted Ghailani's was unaware of what the conspirators were trying to do, even as he allegedly assisted them in acquiring the lethal materials, particularly for the Tanzania blast.

"Ahmed didn't know, and if he didn't know, you have to acquit," Quijano said. "One question - that's all this trial is about."

Echoing a refrain from the defense team's opening argument, Quijano repeatedly described his client as a "dupe" who essentially ran errands for friends whose motives he did not comprehend.

These actions, according to four weeks of trial testimony and evidence, included purchasing the used Nissan refrigeration truck turned into the bomb truck, with al Qaeda operative Sheik Swedan, and obtaining at least seven of around 20 oxygen and acetylene gas tanks placed inside the truck to enhance the explosion.

"Ahmed did not know the objectives of the conspiracy when he engaged in his conduct," Quijano said. "Call him a pawn, call him a fall guy, call him set up like a bowling pin," he said, quoting a lyric from the Grateful Dead's "Truckin," "But don't call him guilty."

Quijano likened Ghailani's assistance to the plotters like Swedan and Fahad Ali Msalam - fugitives since killed by U.S. drone attacks - to the unwitting help that welders gave them by retrofitting the bomb truck or to the leasing agents in both countries who rented the homes that became bomb factories.

The attorney also challenged the forensic evidence against Ghailani, such as a blasting cap and TNT-laced clothing FBI agents and Tanzanian police found in the defendant's Dar es Salaam house after he fled.

Quijano complained that the blasting cap, or electric detonator, was found on a second search three days after the first, and that in between, investigators had failed to secure the premises or the armoire where the cap was found.

He also suggested the clothing evidence was "worthless because of cross contamination," since investigators without wearing protective suits searched the residence immediately after sweeping a vehicle covered in explosive residue and also tossed all of the clothing items in one big bag.

Quijano challenged the government's contention that a cell phone registered to an "Ahmed Khalfan" was his client's, saying it was bought by his housemate. Phone records, which bore a Ghailani fingerprint and were found in his armoire, revealed numerous calls to people and places involved in the conspiracy, but no personal calls. "If he was the primary user or used this at all, don't you think there would be a record of Ahmed calling mama?" Quijano said.

The defense attorney also tried to raise doubts that Ghailani had actually fled the country the day before the bombings on a Kenya Airways flight for Pakistan with three senior al Qaeda operatives on board. Prosecutors said Ghailani flew under the alias "Abubakr Ahmed," according to a plane ticket, a passport under that name, and a disembarkation record in Pakistan. "If Ahmed had been on the plane," Quijano said, "you would have heard one live witness."

On rebuttal, lead prosecutor Michael Fabiarz sought to undermine the "dupe" theory.

"He's not one of the people being lied to, he's one of the liars," Fabiarz said, citing Ghailani's telling welders he needed gas tanks for a scrap metal job and telling relatives that he was moving to Yemen for work when he was a fleeing to Pakistan, where he would be arrested six years later. "The tellers of the lies know what's going on."

Fabiarz defended the evidence of the Aug. 6 plane to Karachi, calling it "coordinated flight." He said, "They're running 15 to 20 hours ahead of mass murder" and that Ghailani left his whole life behind because "he knows what's coming the next day."

Fabiarz said it was illogical that an al Qaeda cell obsessed with secrecy would allow an untested newcomer to carry out important tasks. "Al Qaeda doesn't let some dupe into the heart of an operation," he said. "Let some random guy buy the bomb truck? No way."

U.S. District Judge Lewis Kaplan will give the multiracial jury of six men and six women their instructions on Wednesday. Ghailani, 36, is the first former Guantanamo Bay, Cuba, detainee since the Sep. 11, 2001, terror attacks to be transferred to US civilian court for a trial. If convicted, he faces a maximum sentence of life in prison.