September 11 may have come as a shock to our collective consciousness, and rocketed Al Qaeda to household-name status, but the truth is that the organization was not just known about earlier, but was actually on trial in the Southern District of New York in 1998. That year a massive indictment was issued, naming Bin Laden, Zawahiri, and others on a total of over three hundred counts related to the bombings of the American Embassies in Nairobi, Kenya and Dar Es Salaam, Tanzania, in August 1998.
The trial of those five defendants in American custody was held between February and July 2001, with sentencing in October 2001. Three were in the United Kingdom awaiting extradition (where one has since died). Big names like Bin Laden and Zawahiri are, of course, still at large, and others have been killed in Pakistan and Afghanistan. But one of the defendants, Ahmed Khalfan Ghailani, was not captured until 2004, and was eventually chosen as the subject of the first Guantanamo-detainee terrorism trial on American soil.
Ghailani’s was a test case on numerous fronts. Some insisted that it could not be safe to bring a “terrorist” on to American soil, and insisted that he should be tried at Guantanamo. Others, cognizant of the fact that Ghailani had been tortured and detained in Guantanamo for five years, questioned whether he could ever have a fair trial. But several loud voices, including the American organization Human Rights First (formerly Lawyers Committee for Human Rights) insisted that federal trials were the best solution.
Finally, in May 2009, Attorney General Eric Holder announced that Ghailani would be tried in New York, adding that:
By prosecuting Ahmed Ghailani in federal court, we will ensure that he finally answers for his alleged role in the bombing of our embassies in Tanzania and Kenya. (…)This administration is committed to keeping the American people safe and upholding the rule of law, and by closing Guantanamo and bringing terrorists housed there to justice we will make our nation stronger and safer.
For those who hoped that Ghailani’s federal trial would serve as a denunciation of the American government’s treatment of post-9/11 detainees, the preliminary motions were a disappointment. Judge Kaplan refused to dismiss the indictment on the ground that Ghailani had been deprived of a speedy trial, or on the ground that he had been tortured. He further dismissed the argument that Ghailani was not fit to stand trial, given his post-traumatic stress disorder. As observer Karen Greenberg noted, he informed the jury that Ghailani’s presence or absence from the courtroom should not be seen as evidence of guilt, but failed to tell them that one reason for Ghailani’s absences was that twice-daily body cavity searches triggered his post-traumatic stress disorder.
But those who dismissed Kaplan as toeing the government line received a surprise on October 6, 2010, when Kaplan issued a decision barring the evidence of a government witness who was only located through the torture of Ghailani. In the same decision, Kaplan noted that the impugned witness had himself been threatened implicitly by the local authorities in Tanzania.
On November 17, 2010, a jury convicted Ghailani of a single count—Count Five: conspiracy to destroy buildings and property of the United States.
Ghailani’s counsel have appealed the sole conviction—and with good reason. As their memorandum of argument makes clear, with a barely restrained undercurrent of frustration, Ghailani can’t be guilty of Count Five since he was acquitted on all the other counts. Essentially, as counsel put it,
…the only possible way a conviction on Count 5 could stand is if the jury concluded, beyond a reasonable doubt, the Ghailani entered into a conspiracy to bomb United States facilities “anywhere in the world”, and/or to attack the United States government employees stationed at those facilities, exclusive of the embassy bombings in Kenya and Tanzania to which Ghailani was acquitted.
(Memorandum, p. 12)
There wasn’t a jot of evidence, or even an allegation that Ghailani was involved in targeting any other facilities or government employees, giving the conviction the distinct air of grasping at straws to avoid acquitting him altogether. This is notwithstanding the Department of Justice’s press release stating that Ghailani was “found guilty … for his role in the 1998 bombings of the United States Embassies in Kenya and Tanzania” and was “convicted of conspiring in the 1998 destruction of the United States Embassies in Kenya and Tanzania, causing death as a result”, neither of which is true upon a careful reading of the indictment.
Predictably, the mixed result has lead to mixed reactions. Most of the civil and human rights advocates (such as CCR, HRF, Greenberg, and Guantanamo blogger Andy Worthington) have called the trial an overall success, proof that alleged terrorists can be tried in civilian courts with more transparency and due process protections than military tribunals, without risking public security. Those trials may be imperfect, not least of which because Ghailani faces a possible sentence of life without parole, but they are an improvement.
Meanwhile, prominent Republicans including the incoming head of the House Homeland Security Committee have decried the acquittals as a miscarriage of justice. Liz Cheney, who already denounced the decision on evidence derived from torture, stated through her organization that the verdict was a blow to families of the victims of 9/11 (apparently forgetting that Ghailani was not involved in that tragedy).
The response from Congress was to pass a bill in late 2010 that effectively barred the transfer of detainees from Guantanamo to the United States. With the possibility that the Obama administration could bypass the bill’s restrictions, it becomes clear that the Ghailani trial did not provide a resolution to the vexing issue of how to handle the alleged terrorists still detained at Guantanamo, but was instead a major but indecisive battle in what looks to be another long war.