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Ex-Guantanamo detainee acquitted of most charges

Verdict likely to reset debate on civilian trial

Prosecutors tried to show that Ahmed Khalfan Ghailani, 36, had played a key role in the 1998 Tanzania Embassy attack. Prosecutors tried to show that Ahmed Khalfan Ghailani, 36, had played a key role in the 1998 Tanzania Embassy attack.
By Benjamin Weiser
New York Times / November 18, 2010

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NEW YORK — The first former Guantanamo detainee to be tried in a civilian court was acquitted yesterday of all but one of more than 280 charges of conspiracy and murder in the 1998 terrorist bombings of the US Embassies in Nairobi and Dar es Salaam, Tanzania.

The case has been seen as a test of President Obama’s goal of trying detainees in federal court whenever feasible, and the result could again fuel debate over whether civilian courts are appropriate for trying alleged terrorists.

The defendant, Ahmed Khalfan Ghailani, 36, was convicted of one count of conspiracy to destroy government buildings and property. He was acquitted of four counts of conspiracy, including conspiring to kill Americans and to use weapons of mass destruction.

Because of the unusual circumstances of Ghailani’s case — after he was captured in Pakistan in 2004, he was held for nearly five years in a so-called black site run by the CIA and at Guantanamo Bay, Cuba — the prosecution faced significant legal hurdles getting his case to trial.

On the eve of trial last month, the government lost a key ruling that might have seriously damaged its chances of winning convictions.

In the ruling, the judge, Lewis A. Kaplan of US District Court in Manhattan, barred the use of an important witness against Ghailani because the government had learned about the man through Ghailani’s interrogation while he was in CIA custody, during which his lawyers say he was tortured.

The witness, Hussein Abebe, would have testified that he had sold Ghailani large quantities of TNT used to blow up the embassy in Dar es Salaam, prosecutors told the judge, calling him “a giant witness for the government.’’

The judge recognized the potential damage of excluding the witness when he said in his ruling that Ghailani’s status of “enemy combatant’’ probably would permit his detention as something akin “to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end, even if he were found not guilty.’’

Yesterday, when the judge’s clerk asked how the jury found on counts 11 to 223, which were all counts of murder, the jury foreman replied, “Not guilty.’’

Ghailani, who remains in custody, faces a sentence of 20 years to life in prison.

The unexpected verdict by the anonymous jury of six men and six women came in the fifth day of deliberations. On Monday, the prospect of a deadlock was raised when a juror asked to be removed because she was alone in her view of the case and felt she was being attacked by other jurors. The jurors were taken from the courthouse by federal marshals and were unavailable for comment.

Ghailani’s lawyers — Peter E. Quijano, Steve Zissou, and Michael K. Bachrach — had contended that their client was innocent and had been duped into assisting in the terrorist conspiracy.

“This verdict is a reaffirmation that this nation’s judicial system is the greatest ever devised,’’ Quijano said. “It is truly a system of laws and not men, where, in the shadow of the World Trade Center, this jury acquitted Ahmed Khalfan Ghailani of 284 out of 285 counts.’’

The verdict came after a four-week trial in which prosecutors built a circumstantial case to try to establish that Ghailani played a key logistical role in the preparations for the Tanzania attack.

They said the evidence showed that he helped to buy the Nissan Atlas truck that was used to carry the bomb, and gas tanks that were placed inside the truck to intensify the blast. He also stored an explosive detonator in an armoire he used, and his cellphone became the “operational phone’’ for the plotters in the weeks leading up to the attacks, prosecutors contended.

The attacks, orchestrated by Al Qaeda, killed 224 people, including 12 Americans, and injured thousands of others.

The Ghailani trial was the second stemming from the 1998 embassy attacks. In 2001, four Al Qaeda operatives were convicted of participating in the same conspiracy; in that case, prosecutors were able to introduce three of the defendants’ statements to the FBI in which they incriminated themselves in the plot.

In Ghailani’s case, prosecutors chose not to introduce any of the statements Ghailani made when he was interrogated while in CIA custody and at Guantanamo, although prosecutors told the judge the statements amounted to a confession of his role in the embassy plot. Defense lawyers contended that the statements were coerced and inadmissible.

Preet Bharara, the US attorney for Manhattan, said last night that his office will seek a term of life when Ghailani is sentenced Jan. 25.

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