Sept. 29 (Bloomberg) -- Jury selection began today in the federal prosecution of Ahmed Khalfan Ghailani, an alleged al-Qaeda terrorist and the first Guantanamo Bay detainee to be tried in a U.S. civilian court.
Ghailani faces 286 federal counts related to the Aug. 7, 1998, bombings of U.S. embassies in Tanzania and Kenya that killed 224 people, including 12 Americans. He could face as long as life in prison if convicted of the most serious charge of conspiracy to kill U.S. nationals.
U.S. District Judge Lewis Kaplan in Manhattan previously refused to dismiss the case based on Ghailani’s claims that he was denied a speedy trial. Ghailani also lost a bid to have the case thrown out because he was subjected to so-called enhanced interrogation techniques, which he called torture, at “black sites” operated by the Central Intelligence Agency before being transferred to the U.S. naval base at Guantanamo.
“The most important questions that hang over this case have been whether the coercive interrogations at black sites and the length of Ghailani’s detention at Guantanamo prevent him from being prosecuted in federal court,” said Daniel Richman, a former federal prosecutor in New York who now teaches at Columbia Law School in New York.
The Obama administration has been criticized by Republicans for its plan to close the military prison in Guantanamo Bay and try some terrorism suspects held there in civilian courts.
“If this case continues to verdict, it will be an important milestone in the government’s reconciliation of the Guantanamo detentions with the federal criminal justice system,” Richman said in a phone interview.
At least 50 people were questioned by Kaplan today in open court. Several hundred potential jurors filled out an 11-page questionnaire last week that included questions about views on the Sept. 11, 2001, terrorist attacks on the World Trade Center.
“Do any of you have any opinion about the U.S. government’s enforcement of terrorism laws and offenses?” Kaplan asked a pool of jurors this morning.
Seventeen people were dismissed from jury service at the end of the morning’s session. Kaplan said he will question a second panel after the lunch break.
He ruled that the panel of 12 jurors and six alternates will be anonymous and partially sequestered. They will be escorted to and from the federal courthouse in Lower Manhattan each day, he said.
Kaplan has said opening arguments could be heard in the case early as Oct. 4 and that the case may last as long as four months.
Ghailani, who wore prison fatigues and handcuffs to earlier court appearances, appeared in court today wearing a white shirt, blue striped tie and light blue v-necked sweater. He wasn’t wearing any restraints. He was clean-shaven and not wearing the beard he has worn since he arrived from Guantanamo in June 2009.
As he entered court, Ghailani smiled and waved to a table of people seated in front of him that included defense lawyers as well as two Federal Bureau of Investigation agents working on the case. When he was introduced by the judge, Ghailani turned and nodded to potential jurors seated in the jury box and courtroom gallery.
The judge presided over a case against 17 ex-KPMG LLP executives charged in the largest tax-shelter prosecution in U.S. history. The government accused them of selling shelters that cost the U.S. Treasury $2 billion. Kaplan dismissed charges against 13 defendants in July 2007, saying prosecutors violated their right to counsel.
The prosecution team in Ghailani’s case is led by Assistant U.S. Attorney Michael Farbiarz, who this year handled the prosecution of 10 members of a Russian “Deep Cover” spy ring.
Ghailani, who pleaded not guilty in June 2009, is accused of helping deliver bomb-making components, including TNT and oxygen tanks, in a truck detonated outside the U.S. embassy in Dar es Salaam in Tanzania. Almost simultaneously, another bomb went off outside the U.S. embassy in Nairobi, Kenya.
The government alleges that Ghailani, along with co-conspirator Shekh Ahmed Swedan, bought the truck that was used to ferry explosives used in the Tanzania blast and altered the vehicle to allow more room for bomb components.
He fled Africa with a senior al-Qaeda explosives trainer and “remained an active participant in al-Qaeda,” the U.S. said in court papers. He later admitted that he worked for several top al-Qaeda terrorists and served as a cook and bodyguard for Osama bin Laden, prosecutors said.
Ghailani was indicted by a federal grand jury in New York in December 1998.
Ghailani, who was captured in Pakistan in July 2004, was held and questioned by the CIA for more than two years, the U.S. has said in court papers. In September 2006, he was transferred to Guantanamo Bay by the Department of Defense. In June 2009, the U.S. transferred him to federal court in New York for trial.
The defense team has sought to exclude the testimony of Hussein Abebe, 46, a former miner from Tanzania, who said he sold at least five crates of dynamite to Ghailani before the 1998 attacks.
Abebe, who hasn’t been prosecuted by the U.S. or Tanzania, has been called a “giant” witness by prosecutors. The judge said at a pre-trial hearing yesterday that he may not decide until after opening arguments whether the jury should hear Abebe’s testimony.
Ghailani’s lawyers, led by Peter Quijano and Steve Zissou, argue Abebe’s testimony should be excluded because the government learned of his involvement through a coercive interrogation of Ghailani by the CIA. They also allege that Abebe was pressured by the U.S. into cooperating.
At a hearing two weeks ago, Kaplan said he was concerned about inconsistencies in Abebe’s testimony about his detention and questioning in August 2006 by U.S. and Tanzanian officials.
During questioning by prosecutors, Abebe said he had spoken willingly with Tanzanian intelligence officers and agents with the CIA and Federal Bureau of Investigation.
The trial will likely include some of the same testimony as the 2001 trial in which four of Ghailani’s alleged co-conspirators were convicted. During the seven-month trial, prosecutors showed the jury documents culled from al-Qaeda from around the world. They included records of shell corporations set up by bin Laden and a receipt for a satellite telephone bought in New York that prosecutors said was used by bin Laden.
The four convicted in the 2001 trial were Mohamed Rashed Daoud al-’Owhali, Wadih el Hage, Mohamed Sadeek Odeh and Khalfan Khamis Mohamed.
The government’s case against Ghailani is likely to include the testimony of an al-Qaeda defector, Jamal Ahmed al-Fadl, a former aide who testified in 2001 about the founding of al-Qaeda and bin Laden’s efforts to drive the U.S. out of Africa and the Middle East.
After the 1993 bombing of the World Trade Center in New York, federal prosecutors secretly convened a grand jury to investigate bin Laden and al-Qaeda. Bin Laden was secretly indicted in 1996. Charges against bin Laden weren’t made public until after the 1998 embassy attacks.
The case is U.S. v. Ghailani, 98-CR-1023, U.S. District Court, Southern District of New York (Manhattan).
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