Ghailani Trial Reignites Terror Justice Debate

Ahmed Ghailani listens as the verdict is read.
CBS/Jane Rosenberg
Ahmed Ghailani listens as the verdict is read.
CBS/Jane Rosenberg

From my seat in the second row early Wednesday evening, I glanced at some of the plainclothes U.S. Marshals guarding the scene. Would this al Qaeda operative be allowed to leave?

My illusion vanished after the judge's clerk prompted the foreman to deliver the verdict for the fourth count: conspiracy to destroy American property.

"Guilty," the foreman said. It was the last time we would hear that word by itself.

Video: Civilian or Military Trials for Guantanamo Detainees?

Ghailani did not walk out of the courtroom, and the Obama Administration did not face the awkward prospect of continuing to detain Ghailani as a so-called "enemy combatant" in the war on terror.

There are two ways to look at the verdict, which has reignited a debate over civilian trials versus military commissions for terrorism suspects.

On the one hand, the conviction guarantees a long prison sentence, possibly life, and proves to some that civilian trials can still work for war on terror captives. Ghailani was captured in Pakistan in 2004 and spent five years in custody before his transfer to the federal jail in Manhattan, a period the jury heard nothing about.

On the other hand, Ghailani's acquittal on 99 percent of the counts emboldens the belief held by some that military commissions in Guantanamo - a place the jury never heard mentioned - may be a better option to secure tough justice, although the track record of military commissions is thin and punctuated by light sentences.

Yes, Ghailani was convicted on only one count of 285 on the verdict form, and that was certainly a surprise (and disappointment to prosecutors), given the government's sweeping victories in major terrorism trials starting with the World Trade Center bombers and the conspiracies led by Ramzi Yousef and Sheik Omar Abel Rahman.

But three-quarters of the Ghailani counts were basically one accusation - murder, one count for each of 224 victims of the 1998 U.S. embassy bombings in Kenya and Tanzania.

Ghailani was convicted of only one of his five terrorism conspiracy counts, when usually in a case like this the conspiracy counts fall like dominos - convicted of one, convicted of them all.

So the verdict was contradictory - finding Ghailani "not guilty" of al Qaeda's overall conspiracy to kill Americans, when a dozen Americans died in the Kenya bombing and the husband of an American died in the Tanzania bombing, but finding him "guilty" of a conspiracy to destroy U.S. buildings and property, which is what the embassies in East Africa were.

If the trial judge, Lewis Kaplan, imposes more than the minimum 20 years or declines to credit Ghailani for time served - his six years in U.S. custody - or goes as far as a life sentence, perhaps that will quiet critics of the trial's outcome.

It is a mystery how the multiracial jury of six men and six women reached its unanimous verdict on their fifth day of deliberations. We may never know, because jurors left without speaking to reporters or the attorneys. We can't track them down, because, as is common practice in al Qaeda trials, the jurors were anonymous, known only by their jury pool or jury seat numbers. The jury was drawn from a pool of more than a thousand who filled out questionnaires at the Lower Manhattan courthouse in late September.

One clue to the outcome emerged on the third day of deliberations, when 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 her mind. The judge declined her request to be excused, and deliberations resumed. While many trial watchers and participants inferred that note meant the jury was deadlocked, perhaps 11 to 1 for guilt, that was never confirmed, but a leading theory is the result might have been a compromise verdict.

It is fair to say almost everyone paying attention to the Ghailani trial expected a fuller guilty verdict. The government rarely loses these cases, especially when Bin Laden is virtually in the courtroom, as he was when the government played his old TV interviews and read his declaration of war on America. Prosecutors in the same district won convictions on 302 of 302 counts against four men in the first embassy bombings trial in 2001. In fact, since September 11th, the government has an 87-percent conviction rate in more than a thousand terrorism-related cases, according to the NYU Center on Law & Security.

There was a lot of evidence against Ghailani, most of it uncontested. 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. They showed that he obtained some of the 20 or so oxygen and acetylene gas tanks attached to the bomb that made the blast more powerful. An FBI agent testified about finding a leftover electric detonator, or blasting cap, in Ghailani's armoire in his Dar es Salaam house. The government had witnesses and hotel records and travel records that placed Ghailani in the company of more culpable al Qaeda members, and Ghailani fled with three of them on a flight from Nairobi to Karachi the day before the bombings.

Whether you consider the Ghailani verdict a victory or a setback for the idea of trying other Guantanamo detainees in federal court, it is fair to say that Judge Kaplan made a couple precedent-setting decisions that would assist future prosecutions.

It is true the judge's decision to exclude the witness who said he sold TNT to Ghaliani - his only direct tie to the explosives -- seemed to hurt the government's case, and showed how complicated it is to use a detainee's post-arrest statements during his time in military custody. The judge felt that witness was proverbial "fruit of a poison tree," because investigators learned of him only from Ghailani's sessions in a secret CIA prison where he was subjected to "enhanced interrogation techniques" that his lawyers labeled torture.

But Judge Kaplan earlier rejected a motion by Ghailani's lawyers to dismiss the whole case because of his alleged mistreatment in custody -- what defense attorneys called "outrageous government misconduct" -- a motion that was previously tried and failed by attorneys for "enemy combatants" Jose Padilla and Ali al-Marri when they transitioned from a naval brig to the federal system.

More importantly, Judge Kaplan also ruled that Ghailani's years of detention before being brought into the civilian system did not violate his "right to a speedy trial," normally 70 days after indictment. Kaplan allowed flexibility for when the clock starts ticking, really for the clock to stop, during the time a defendant is a military captive.

Both crucial rulings, which allowed the Ghailani trial to go forward, could apply to the pending cases against alleged September 11th planes attack planner Khalid Shaikyh Mohammed (aka. KSM) and four other Guantanamo detainees implicated in the conspiracy. That is if Attorney General Eric Holder revives his plan, first announced a year ago, to put KSM and the rest on trial in the same courthouse where Ghailani was tried, just a few blocks from the World Trade Center site.

But the outcry by New York City officials over security concerns and costs, from Mayor Michael Bloomberg to U.S. Senator Charles Schumer to Governor-elect Andrew Cuomo, has made the odds of that trial actually happening steep.

A federal civilian trial is more likely in another location relevant to the 9/11 conspiracy, unless the administration reverses course and opts for a military commission...or neither, and lets KSM and his codefendants reside indefinitely in Guantanamo.