Ahmed Khalfan Ghailani the first Guantanamo detainee to be tried civilly was sentenced to life in prison yesterday after a trial on charges stemming from the bombing of the 1998 U.S. embassies in Tanzania and Kenya that killed 224 people by U. S. District Judge
Lewis Kaplan. A New York jury convicted him of one count of conspiracy to damage or destroy U.S. property and found him not guilty on 284 counts of murder and conspiracy.

Ghailani was accused of buying gas tanks and a truck used in the embassy attacks. He did not actually participate in the attack. He flew to Pakistan the day before the attack. ¹After the bombing he worked as a driver and a bodyguard for Osama Bin Laden.

The life sentence was not unexpected. The judge has said that he thought the government was the victim of a lenient jury. While some have questioned the not guilty verdicts on the 284 murder and conspiracy charges, the truth of the matter is that the jury has spoken. The government did not prove its case on the remaining 284 counts beyond a reasonable doubt. Part of this is due to the suppression of evidence seized as a result of torture and the failure to Mirandize Ghailani prior to interrogating him. But this is the law which protects due process and prevents coerced self incrimination. Unlike those who are upset with the not guilty verdicts because they assumed guilt regardless of the facts, the important thing is that Ghailani got a fair trial.

The problem with the sentence, however, is that it does not take into consideration the fact that he was found not guilty on 284 out of 285 counts. Ghailani would have gotten the same sentence if he had been found guilty on all of the counts. While the judge may think that he is guilty on all counts the jury only convicted on only one and a lesser sentence is appropriate based on the sole conviction of a relatively minor count.

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.

Federal Judge Lewis A. Kaplan barred the testimony of Hussein Abebe in the trial of Ahmed Khalfan Ghailani for the 1998, Al Qaeda sponsored bombing of the U. S. embassies in Dar es Salaam, Tanzania and Nairobi, Kenya.

The CIA discovered Abebe through a statement given by Ghailani while being kept in a “black site” maintained by the CIA to interrogate detainees. Ghailani’s lawyers say that he was tortured into giving up Abebe’s name. While Judge Kaplan has not made a finding on whether or not torture was involved he said it was clear that Ghailani was coerced into giving up the name. United States courts have long held that evidence received by torture or coercion is inadmissible as evidence. Not only is evidence received as coerced testimony inadmissible but the fruits of such evidence is inadmissible. In other words prosecutors cannot use evidence directly related to coercion or torture. Evidence indirectly received may be admissible. For example if they received evidence of Adebe involvement from two sources, one coerced and the other not it might be admissible. But the only source in this case is the coerced testimony of Ghailani. Thus since Ghailani gave up the name of Abebe as a result of coercion, Abebe’s testimony is a fruit of the illegal interrogation and is inadmissible.

Not only is coerced testimony unreliable but the government should not be rewarded for the use of coercion or torture.

Abebe allegedly gave the dynamite to Ghailani, used in the bombing and his testimony is considered crucial to the government’s case.There is some fear that if the government is unable to convict Ghailani they will no longer use civilian trials to try those like Ghailani who are charged with terrorist crimes and housed at Guantanamo.

But Judge Kaplan said:

“But the Constitution is the rock upon which our nation rests. . . .We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand.”

However, he also said that even if Ghailani is found innocent he may be detained for the rest of his life as an enemy combatant. But the New York Times cites Ben Wizner, a senior lawyer with the American Civil Liberties Union, as saying that the conventional wisdom about the Ghailani case was that the justice system works if he is convicted and fails if he is acquitted.

“But that’s not how we measure the effectiveness of a criminal justice system,” Mr. Wizner said. “The question is whether the government can present its case and whether the defendant can get a fair trial.”

In fact the government may get a better win if Ghailani is found not guilty and released. This would show the world, and particularly the Muslim world, that this is a country of laws and that we only punish the guilty.

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.