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Embassy Bombing Verdict May Discourage More Civilian Trials

The Obama administration may want to seek other ways to prosecute Guantanamo Bay inmates following a New York jury conviction of an alleged al-Qaeda bomber on only one of 285 counts in the 1998 attacks on U.S. embassies in Africa that killed 224 people.

Ahmed Khalfan Ghailani, 36, a Tanzanian citizen and the first detainee to face civilian trial, was found guilty yesterday in Manhattan federal court of conspiracy and cleared of all other charges, including 224 counts of murder stemming from the bombing of the embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya. Twelve U.S. citizens were among the dead in the near-simultaneous terrorist attacks.

Prosecutors face an uphill battle in obtaining guilty verdicts against defendants apprehended in military operations and held without constitutional protections, said Rebecca Lonergan, an ex-federal prosecutor who teaches national security law at the University of Southern California in Los Angeles.

“These cases don’t fit the mold the criminal courts were made for,” Lonergan said in an interview. The military is more concerned with stopping enemy combatants than collecting evidence and prosecutors are reluctant to use evidence that may compromise national security, she said.

The Ghailani case was a test of whether such a defendant could be prosecuted in a civilian court and, while resulting in a guilty verdict, may give pause to any Justice Department effort to seek more trials, legal experts said. Lonergan said the federal government should create a special “national security court” to handle such cases.

Minimum Sentence

Ghailani, who was indicted in December 1998, was captured in Pakistan in July 2004. In September 2006, he was transferred to the U.S. military base at Guantanamo Bay in Cuba. He was transferred to New York last year for trial after the Obama administration said it planned to close the Guantanamo Bay prison and try terrorism suspects held there in civilian courts.

Ghailani faced a mandatory life sentence had he been convicted of any of the murder counts. He faces a minimum sentence of 20 years in prison when U.S. District Judge Lewis Kaplan sentences him on Jan. 25.

Kaplan praised jurors as he dismissed them yesterday after the verdict, saying they demonstrated “that American justice can be delivered calmly, deliberately and fairly, by ordinary people -- people who are not beholden to any government, including this one.”

Worldwide Conspiracy

The charges against Ghailani included being part of a worldwide terrorist conspiracy with Osama bin Laden to kill U.S. nationals, conspiring to use weapons of mass destruction and the 224 murder counts. The jury found him guilty of conspiring to destroy buildings and property of the U.S.

The result “wasn’t a total disaster,” Jenny Martinez, a Stanford Law School professor, said in a phone interview. “If I were the prosecutors, I’d think it wasn’t everything we hoped for but it’s longer than any sentences that the people who have been convicted by the military commissions have gotten.”

A New York University study of 828 “terror related” prosecutions in civilian courts since Sept. 11, 2001, found an 89 percent conviction rate in those cases, Martinez said. She also cited a Human Rights First study finding that there was a 91 percent conviction rate in 119 terrorism-related cases since the 2001 attacks.

“Contrast that with the military commissions which have produced five convictions” with only three of those individuals still in custody, Martinez said.

Proximate Cause

In the Ghailani trial, the jury was asked to determine whether prosecutors had proven that Ghailani’s actions “directly or proximately caused death to a person other than a co-conspirator.” While the panel said he did, jurors didn’t find Ghailani guilty of any deaths. They didn’t speak to reporters as they left the courthouse.

“As a matter of logic, it’s hard to reconcile the murder acquittals with the conspiracy conviction -- particularly given the jury’s finding that the attack led to the deaths of innocents,” said Daniel Richman, a former federal prosecutor in New York who is now a professor at Columbia Law School. “However, juries sometimes break logjams in deliberation with compromise verdicts, and this seems to be just that.”

A witness that Kaplan precluded from testifying might have made the difference on the murder counts, Richman said.

Kaplan barred prosecutors from calling as a witness Hussein Abebe, a Tanzanian miner who told investigators he had sold five crates of TNT, a detonation cord, blasting caps and detonators to Ghailani. Kaplan barred Abebe’s testimony, saying that Ghailani was coerced into indentifying him by the U.S. Central Intelligence Agency. The CIA subjected Ghailani to “enhanced interrogation techniques,” the U.S. said in court papers.

‘Giant’ Witness

Assistant U.S. Attorney Michael Farbiarz called Abebe a “giant” and “critical” witness.

“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,” Matthew Miller, a spokesman for the U.S. Department of Justice, said yesterday in an e-mailed statement. Charles Miller, another government spokesman, didn’t return a call seeking comment on whether more civilian prosecutions of detainees are planned.

Testimony in the trial began Oct. 12 and ended Nov. 3. The six-man, six-woman jury, which was anonymous, began its deliberations on Nov. 10.

Ghailani, seated at the defense table and flanked by five lawyers, wiped his face after the verdict was announced.

His lawyer, Peter Quijano, said the verdict was a “reaffirmation that this nation’s judicial system is the greatest ever devised.”

World Trade Center

“We are in shadows of the World Trade Center and this jury acquitted Ahmed Khalfan Ghailani of 284 out of 285 counts,” he said. “Although Ahmed was not responsible, we would express sympathy for 224 who died and hundreds injured.”

During a 2001 trial in Manhattan federal court, four co-defendants of Ghailani were convicted of all charges, including joining an al-Qaeda conspiracy to kill U.S. nationals and all 224 counts of murder.

The defense in Ghailani’s case argued that he was a “dupe” who unwittingly helped collect materials, including metal tanks and a truck, used in the Tanzania attack. Defense lawyers argued he hadn’t known the plotters intended to bomb the embassies.

The jury sent Kaplan a note during deliberations, asking if it had to determine that Ghailani “knowingly and willingly” participated in the attacks as part of their consideration of five conspiracy charges listed in the indictment.

Kaplan instructed the panel that it must find that prosecutors had proved beyond a reasonable doubt that Ghailani knew of “at least one of the unlawful objectives of the conspiracy.” Kaplan also told jurors they must find that prosecutors proved the defendant “voluntarily and intentionally participated in the venture as something he wished to do.”

Circumstantial Case

Without Abebe as a witness, prosecutors mounted a largely circumstantial case, calling African witnesses who could describe Ghailani’s actions in the months before the bombing. They testified that Ghailani and a co-defendant bought a Nissan refrigeration truck used in the Dar es Salaam attack.

Tanzanian welders also testified that Ghailani negotiated the purchase of at least seven metal tanks, each about 5 feet tall and weighing 150 pounds, and that he filled them with acetylene and oxygen. Ghailani paid for tanks with cash out of a waist pouch he wore, they said.

FBI agents testified they later found TNT residue and metal fragments from 19 different tanks at the Dar es Salaam blast site.

Prosecutors argued during the trial that Ghailani was a knowing participant, or “implementer,” of the al-Qaeda terrorist plot.

‘One of Them’

“He wasn’t just with them, he was one of them,” Assistant U.S. Attorney Harry Chernoff told jurors in closing arguments on Nov. 8. “He wasn’t along for the ride. He was putting the plans in motion, getting the bomb built.”

Prosecutors said during the trial that bin Laden dispatched terrorists to bomb the embassies in retaliation for the stationing of U.S. troops in Saudi Arabia during the first Persian Gulf War and U.S. alliances with Saudi Arabia, Egypt, Jordan and Israel.

Other explosives evidence was found in Ghailani’s home in Dar es Salaam, the government said. An FBI agent testified that during an Aug. 29, 1998, search, three weeks after the attack, he found a live explosives detonator in a padlocked armoire that Ghailani used. Testing determined the detonator was made of the explosive PETN. Agents also found traces of the PETN in the armoire and in clothes that were stored there, the FBI said.

Mobile-Phone Records

Mobile-phone records with Ghailani’s fingerprints found by the FBI in his house were presented as evidence by prosecutors.

The mobile phone, which was paid for by a person identified as “Ahmed Khalfan,” was used in August 1998 to make a series of calls, including to a house in Nairobi where prosecutors said the bomb for the Kenya attack was made.

Prosecutors said someone also used the phone to call the Hilltop Hotel in Nairobi, where a guest registry showed that al-Qaeda members stayed for a meeting on Aug. 1, 1998.

Lawyers for Ghailani argued he was used by associates involved in the plot. They told jurors Ghailani’s purchases were “commercial transactions” made by someone who was “duped” and “used by his friends.”

Trial witnesses said Ghailani gave various reasons for his departure from Tanzania the day before the bombings, telling friends and relatives he was going to Yemen for work and one roommate that he was going to Germany.

The U.S. said Ghailani went to Afghanistan and worked for several top al-Qaeda terrorists, serving as a cook and bodyguard for bin Laden. The jury didn’t hear details of what happened to him after he left Africa.

The case is U.S. v. Ghailani, 98-cr-01023, U.S. District Court for the Southern District of New York (Manhattan).

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