A New York jury on Wednesday convicted a former Guantanamo detainee of conspiring in al Qaida's 1998 bombings of two U.S. embassies in East Africa, capping a trial that was seen as a model for White House plans to try the plotters of the 9/11 terrorist attacks in civilian courts.
Tanzanian-born Ahmed Ghailani, 36, had claimed he was duped into buying a truck and components for explosives used in the attacks that killed 224 people and maimed thousands in Nairobi and Dar es Salaam _ and the federal jury of six men and six women apparently agreed to some degree, acquitting him on 224 individual counts of murder and murder conspiracy.
But the jury found him guilty of conspiring to destroy U.S. buildings — a conviction that makes him subject of a prison sentence of from 20 years to life. U.S. Attorney Preet Bharara said prosecutors would ask for a sentence of life, without possibility of parole and the Justice Department proclaimed itself satisfied. But the mixed verdict was likely only to intensify the debate over whether suspected 9/11 mastermind Khalid Sheikh Mohammed and his alleged co-conspirators should be tried in civilian court.
"We respect the jury's verdict and are pleased that Ahmed Ghailani now faces a minimum of 20 years in prison and a potential life sentence for his role in the embassy bombings," said the Justice Department's Matthew Miller.
While the Justice Department hailed the verdict as a victory, it was likely to be used by opponents of civilian trials for the 9/11 conspirators as a sign of the weakness of the civilian court system.
South Carolina Republican Sen. Lindsey Graham, an architect of military commission trials, urged the White House "going forward'' to use the Guantánamo war court.
"We are at war with al Qaida. Members of the organization, and their associates, should be treated as warriors, not common criminals," he said. "We put our nation at risk by criminalizing the war."
One of Obama's first moves after he took office was to transfer Ghailani to face a federal civilian trial in New York, instead of a military commission. Attorney General Eric Holder later said the Justice Department would similarly move accused Sept. 11 mastermind Khalid Sheikh Mohammed and four alleged conspirators from Cuba to Manhattan for trial.
But Congress turned against the Obama plan, blocking some of it financially and requiring early notice of transfers. And the mid-term election results have only stiffened that opposition.
Rep. Peter King, R-NY, and the House's incoming Homeland Security Committee chairman, announced last week that his priority to "stop the transfer of admitted 9/11 mastermind Khalid Sheik Mohammed and his co-conspirators from Guantánamo to lower Manhattan for trial." New York's Democratic governor-elect, Andrew Cuomo, likewise announced he opposed holding a Sept. 11 trial in his state.
Opponents cite issues from the costs and inconveniences of securing the terror trial to whether it would put an even bigger bulls-eye on Manhattan, the city that suffered most on 9/11.
Also at issue in part is that in federal court, a captive can claim greater due process protections — both to keep out evidence gleaned through coercive interrogations and exercise the right against self-incrimination without benefit of an attorney.
Remote and under absolute control by the Pentagon, the Guantánamo commissions can more easily go into closed session to show a military jury evidence that it doesn't want the world to hear.
In Ghailani's case, U.S. District Judge Lewis A. Kaplan, forbade the government from using a key witness because that witness' identity was likely gleaned from harsh secret CIA interrogations before President George W. Bush ordered Ghailani and the other so-called black site'' prisoners sent to Guantánamo in 2006.
But Kaplan, in a nod to the Pentagon's war court system, which also prohibits the use of coerced testimony, noted in his October decision that a military commissions judge may have come to the same conclusion.
Kaplan promised anonymity to the New York jury. The verdict came in the fifth day of deliberations, following a more than month-long trial.
Congress' Homeland Security Committee chairman, Rep. Bennie Thompson, D-Miss., who is to be replaced by King, noted before the verdict that Ghailani's trial "has gone off without a hitch," security-wise and with no disruption.
"I trust our men and women in uniform to protect the public," said Thompson. "I trust our system of jurisprudence in America. I don't care how bad you are, we can still put you on trial and if the evidence warrants a conviction you'll get it."
The split verdict also comes a month after the Pentagon sealed a plea deal with Guantánamo's youngest captive — Omar Khadr, captured at age 15 — to return to his native Canada next year to serve out at most seven more years. Had he been convicted at the war court, he could've been sentenced to life in prison.
Guantánamo's detainee population on Wednesday was 174, only three of them convicted of war crimes and a fourth facing charges at the military commissions.
In the Ghailani case, family members of those killed in the bombings came to court on their own timetables, and without the need for the lottery that the Pentagon put together to let victims see the Guantánamo war court. It was familiar territory for some, retracing the path they took to earlier 2001 trials that convicted four other men on terror charges.
Moreover, Ghailani got far different treatment in New York than at a clandestine prison in Cuba where he was segregated with the 9/11 accused and others held for years in CIA "black sites."
His mother came from Tanzania to visit him at the Manhattan lockup while he was preparing for trial and in court he sat at the defense table like any other accused — no uniformed guards at his heels, like at Guantánamo.
Ghailani prosecutors also had a distinct advantage.
They dusted off an old indictment, and in the end used already tested evidence in the twin embassy bombings case that in 2001 ended in the convictions of four other men — using pre-9/11 evidence untainted by his still secret 2004-2006 CIA interrogation and detention.
The Obama Justice Department could follow suit and dust off an old indictment against Mohammed, the confessed 9/11 mastermind, as a conspirator in the failed 1995 Bojinka plot, said Cully Stimson, a former Bush administration-era Pentagon director of detainee affairs who has prosecuted cases in both federal and military courts.
A New York grand jury indicted Mohammed in that foiled scheme to plant bombs on 10 commercial flights in Southeast Asia long before he was captured and water-boarded 183 times by the CIA, using a technique widely reviled as torture.
It would, like in the Ghailani trial, wall off from the case the procedures the CIA still protects and avoid risking a judge's ruling that critics fear could lead to acquittal on a human rights technicality.
But it would not satisfy 9/11 families who want to see him face "a Guantánamo-style trial not at a federal courthouse," said Stimson, who is now a scholar at the Heritage Foundation.
Moreover, Ghailani's mass murder trial didn't draw the scale of attention one could expect from a Sept. 11 prosecution, added Stimson who predicted any U.S. venue that got the 9/11 trial would become "a target city'' for al Qaida terrorists since the man who bragged at Guantánamo that he planned Sept. 11 "from a to z'' is "a hero to jihadists."