Ahmed Khalfan Ghailani, the first Guantanamo detainee tried in a civilian court, was convicted of conspiracy to damage or destroy U.S. property but was acquitted of the remaining 281 ¹counts in the indictment related to the bombing of the United States embassies in Tanzania and Kenya in 1998. He was accused of procuring the truck and the gasoline tanks used in the attacks. He has said that he did not know what they were going to be use to attack the embassies. He is facing a minimum of twenty years in prison and a maximum of life without parole at his January sentencing.

The trial showed that the Guantanamo detainees charged with terrorist offenses can receive fair trials in civilian courts in New York. The jury was capable of looking at the evidence and picking which offense Ghailani was guilty of and finding him not guilty of the other offenses. The trial, unlike a military tribunal, met minimum due process requirements. The judge excluded a major witness whose testimony had been coerced by torture. In a military trial the coerced testimony would have been admissible and while not reliable would have been used. It would have raised doubts about the validity of the trial and may have resulted in further terrorist attacks against this country in response to what would have been a questionable conviction. But at the same time the judge made a number of decisions favorable to the prosecution which will probably be tested during an appeal. For example he refused to dismiss the charges even though Ghailani was tortured while in government custody. He ruled that even though the bombings occurred in 1998 and Mr. Ghailani was arrested in 2004 in Pakistan the trial met speedy trial standards.

We must remember that the test of the court system is not whether the defendant is convicted or of how many counts he/she is found guilty of but rather whether a fair trial under the Constitution is received. While the ideal is never reached the court showed that a reasonable trial could be conducted. The trial was the first and more tests will come. Certainly the appellate courts will have their say but the court certainly showed that the civilian court can do at least as good of a job as the military tribunals.

The Ninth Circuit en banc upheld the decision to dismiss Mohamed v. Jeppesen Dataplan.

In Jeppesen, Binyam Mohamed and four other plaintiffs sued Jeppesen, a CIA contractor for their seizure in foreign countries and transportation to other countries where they were tortured and interrogated as part of the government’s extraordinary rendition program. In this manner the government avoided the protections provided defendants and detainees accused of terrorist related crimes.

After the plaintiffs filed their complaint the government received permission to intervene in the matter and moved to dismiss the case on the grounds that the charges involved matters of national security and state secrets.

The decision points out that there are two ways to dismiss a case where state secrets may be disclosed at trial. One involves where the subject matter of a suit is a state secret. This is called a Toten Bar after the 1876 case in which spies for the government sued to enforce a secret agreement to pay them for their work against the Confederacy in the Civil War. While all of the plaintiff’s claims in Mohamed involve government secrets Toten has never been invoked in cases not involving the government as a party. While some of the Circuit judges wanted to base the decision on Toten the majority instead based the decision on United States v. Reynolds, 345 U.S. 1, 11 (1953)

Reynolds created a rule of evidentiary exclusion. It permits the exclusion of evidence involving national secrets. But in rare cases where there is insufficient admissible evidence without using state secrets for the plaintiff to make a prima facie case or to allow the defendants to put forth defenses it allows for the dismissal of a case. Basing its decision on Reynolds the Ninth Circuit ruled that without the use of sate secrets there is insufficient evidence for Jeppesen to defend itself.

The problem with this, as the dissent points out, is that since Jeppesen has not answered the complaint yet we do not know what evidence they will need to defend themselves. According to the five dissenting judges the government’s motion was untimely and it should only be considered when and if Jeppesen requests discovery of documents or the deposition of individuals which would reveal state secrets. But the majority say the motion can be brought at any time and it is clear that the case cannot be defended without exposing state secrets which would affect the nation’s security.

As all of the judges admit dismissing a case and denying the plaintiffs justice and compensation for what appears to be serious injuries is an extreme measure and should not be taken lightly. The majority expresses a number of alternatives most of which require Congress to award compensation to the plaintiffs for their injuries. The dissent points that this is an abrogation of judicial responsibilities. It is hard to see how Congressional action would be more protective of national secrets than judicial action.

I would suggest that in exchange for the courts hearing the matter that the plaintiffs be asked to waive a jury trial and a public hearing. The trial could be conducted by declarations filed under seal. In other cases attorneys have been required to get security clearances and the Courts have limited which legal personnel can review secret documents. For example this has been done with national security documents used in the Guantanamo habeas proceedings. At least 28 judges on the Ninth Circuit have already seen the secret documents and no harm has been accomplished. The trial court can fashion procedures maintaining the secrecy of state secrets. In this way the plaintiffs can be compensated for their injuries and the state secrets can be maintained.

Attorney General Eric Holder announced that five detainees, including alleged 9/11 mastermind Khalid Shaikh Mohammed will be tried in New york City and another five will be tried by military tribunals, including Abd al-Rahim al-Nashiri, who is accused of planning the bombing the U. S, navy destroyer, the USS Cole in Yemen.

The trial of Mohammed promises to be the biggest trial since the OJ trial. It carries risks and benefits for the United States. The difference between military tribunals and trials in the United States District Court is that a District Court trial must follow all of the rights found in the Bill of Rights, while the defendant’s rights are more limited in a trial before a military tribunal. Specifically the Supreme Court has ruled that testimony obtained by torture or coercion cannot be used in a court but it is permissible before the military tribunals.

Some family members of those who died and conservative Republicans argue that terrorists do not deserve the same rights as American citizens. But by giving terrorist the same rights as we give to others accused of crimes we exhibit our belief in our judicial system and our humanity. What if some of the detainees are innocent. We believe that people are innocent until proven guilty and none of the detainees have been proven guilty in a court of law. Certainly innocent people deserve the full benefit of our laws and the Bill of Rights.

But there are certainly risks involved. It may lead to further terrorist attacks on New York City. They may come on the day set for trial, the day the verdict comes down or on the date of sentencing. While the world may admire our Bill of Rights it will not admire the death penalty if the defendants are convicted. Some may say the death penalty is as barbaric as some of the terrorist acts. Furthermore the government will be rightly blamed for bringing Abd al-Rahim al-Nashiri to trial before the tribunal and not in a court of law. The use of testimony obtained through torture will and should be condemned. Furthermore, the use of the death penalty may make the detainees martyrs in many parts of the world and lead to revenge on the United States.

United States District Court Judge Ellen Huvelle granted Mohammed Jawad’s writ of habeas corpus. She ordered the government to release him from Guantanamo and return him to Afghanistan. But she gave the government until August 21 to return him to Afghanistan.

Jawad is the youngest detainee at Guantanamo. It is believed that he was only 12 years old when he was arrested by Afghan police and turned over to the US military.

Under Federal law the president must give Congress 14 days notice before releasing someone from Guantanamo. The judge gave the government until August 6 to give Congress notice.

The government will probably use the next three weeks to develop a case against Jawad and attempt to charge him in Federal Court. But to convict him in Federal Court they have to show that he is guilty beyond a reasonable doubt, a much stricter standard than was necessary in the habeas proceedings and if they were unable to meet the habeas standard it is doubtful that they can meet the beyond reasonable doubt standard. The problem with the government’s evidence against Jawad, who they believe threw a grenade into a vehicle carrying two US soldiers and an Afghan interpreter, is that it was obtained by torturing Jawad and it is therefore inadmissible in Federal courts.

Jawad’s former military prosecutor, Lt. Col. Darrel Vandeveld, has stated that there is ‘no credible evidence or legal basis’ to justify Jawad’s detention and prosecution, and that his release presents no risk.”

As the judge said, “Enough has been imposed on this young man,”

The Obama administration continues to make plans for indefinite detention for many of the detainees at Guantanamo.

Indefinite detention violates many of the basic beliefs of our founders expressed in the Constitution. Article I, Section 9 of the Constitution states, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The Fifth Amendment guarantees “due process of law.” It starts out saying, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;” The Sixth Amendment guarantees “the accused shall enjoy the right to a speedy and public trial, by an impartial jury. It also requires that the accused have the right of confrontation and the use the state for compulsory process to obtain favorable witnesses. The Eighth Amendment forbids excessive bail.

Furthermore the United States has signed international treaties guaranteeing alleged terrorist the right to a speedy trial. The International Covenant on Civil and Political Rights guarantees to all the right to a speedy and public trial.

Ahmed Khalfan Ghailani who is accused of participating in the 1998 bombing of the United States embassies in Dar Es Salaam, Tanzania and Nairobi, Kenya in which 224 people were killed was transferred from Guantanamo to New York City where he will stand trial. He is the first person held in Guantanamo to be transported to the United States for trial. Immediately upon his arrival he was taken to the U. S. District Court where he entered a not guilty plea.

He was arrested five years ago in Pakistan and he has been held in Guantanamo for three years. Between the time of his arrest and his placement in Guantanamo Ghailani was kept in secret foreign CIA prisons.

He is accused of buying a truck used in the Dar Es Salaam bombing. It is also alleged that he bought and loaded explosives onto the vehicle. From 2001 to 2004 it is alleged that he worked as a forger, forging documents for Al Qaeda,

Wadih el-Hage, an American citizen was convicted in 1998 of conspiring with Al Qaeda to kill Americans. He is serving his sentence at a super secure prison in Florence, Alabama. In the same trial Mohamed Rashed Daoud al-’Owhali, Khalfan Khamis Mohamed, and Mohammed Saddiq Odeh were convicted of murder in connection with the bombing of the embassies. they are also serving life terms.

Whatever happens Ghailani’s prosecution and trial must be carried out with the greatest transparency. In order to validate the trial in the eyes of the international community and in compliance with President Obama’s opening to the Muslim world the government should invite international observer including representatives from Muslim countries and representatives of Al Qaeda to observe the trial. The observers must be given the greatest latitude to view American jurisprudence. Furthermore Ghailani’s attorneys must be provided with all of the documents and discovery necessary for a vigorous and zealous defense. Not only will such efforts justify the trial in the eyes of the world community but it will prevent revengeful terrorist attacks on this nation if there is a conviction.

A Federal judge set a new standard, according to an article in Jurist for habeas relief for prisoners accused of terrorism replacing the Bush administration’s enemy combatant standard. The new standard, supported by the Obama government is meant to comply with international laws of war and the government’s Authorization for Use of Military Force, which was passed by Congress in the immediate aftermath of the 9/11 attacks. The new standard allows for the detention of those “who were part of, or substantially supported, the Taliban or al-Qaeda forces”

At this point the order just affects writs that are being heard by Judge Reggie Walton of the District Court for the District of Columbia but it is expected that other judges will adopt the same or a similar standard.