11-8-2010By Daphne Eviatar
Senior Associate, Law and Security
After a month of painstakingly detailed testimony, the government today connected the dots for the jury in its criminal case against Ahmed Khalfan Ghailani. In a day-long closing argument, the government claimed that Ghailani was not the innocent dupe that the defense has made him out to be. Rather, “Ahmed Ghailani and his associates from Al Qaeda, they were Al Qaeda’s East Africa crew – the implementers,” Assistant U.S. Attorney Harry Chernoff told the jury in the downtown Manhattan courthouse. “They built the truck bombs which destroyed our two embassies,” he said. And “they turned the keys to the trucks over to the suicide bombers.”
Ghailani has been on trial for the past five weeks for his role in the 1998 bombings of the U.S. embassies in Kenya and Tanzania that led to the deaths of 224 people in and injured thousands more.
Having recently watched the trial and sentencing of Omar Khadr in the military commissions at Guantanamo Bay, I’ve been struck by the contrasts between the two proceedings: the orderliness, professionalism and fairness of the federal court proceedings, as compared to the confusion, uncertainty and inequity that cloud the military commissions.
Captured in Pakistan in 2004, Ghailani was deemed a “high value” detainee and sent to a secret CIA prison for interrogation using so-called “enhanced interrogation techniques.” He was transferred to Guantanamo Bay in 2006 and held there until he was transferred to New York for trial last year.
Although the trial’s delay and Ghailani’s treatment in a CIA black site created some difficulties for the government in this case – most notably, the exclusion of an important government witness who Ghailani had identified during coercive CIA interrogations — what’s remarkable is how much evidence the government has been able to present to support its case.
Thanks to careful FBI work, the government has introduced extensive forensic evidence from both crime scenes, documentary evidence showing Ghailani’s whereabouts, purchases, phone calls and travel arrangements around the time of the crime, and an array of witnesses who traveled from Africa to testify to their dealings with him and his associates.
Meanwhile, contrary to the predictions of many critics of federal court trials for terrorism suspects, the Ghailani trial has proceeded peacefully and without incident. Security around the Manhattan courthouse has been tight, as usual; but other than one additional metal detector outside the courtroom and a sign-in sheet for observers, the Ghailani trial has meant business as usual for court security personnel. Most New Yorkers, meanwhile, don’t even know the case is going on.
Most importantly, the Ghailani case has been nothing like the charade I observed in the case of Omar Khadr at Guantanamo. There, having convinced Khadr to plead guilty in exchange for a relatively lenient sentence, the government had a stage to present a virtually uncontested story of the 15-year-old child soldier as a vicious, unreformable al Qaeda murderer who reveled in killing Americans. Military prosecutors didn’t have to present any solid evidence to back that up. That the defense department had secretly agreed to transfer Omar Khadr to Canada, his home country, within a year to serve just seven more years there suggested that the government didn’t even believe its own story.
In contrast, in the federal court trial of Ahmed Ghailani we have every indication that the truth of Ghailani’s role in the 1998 embassy bombings is actually emerging – and that he will be judged and sentenced accordingly.
Prosecutors have brought in witnesses from around the world to testify to the role Ghailani played in purchasing a truck and gas tanks that were later transformed into deadly bombs. The government’s case has included everything from FBI agents describing how they collected shards of metal at the crime scene that led them to identify the truck used and who had purchased it, to a Tanzanian welder who described selling Ghailani the gas tanks and a former al Qaeda member who explained how al Qaeda plans and carries out its operations.
Ghailani’s defense lawyers have ably cross-examined these witnesses, in some cases pointing out inconsistencies in their testimonies and in others highlighting the limits of their knowledge or their memories. Defense lawyers will make their closing argument on Tuesday morning.
At this point, how the jury will decide the case remains to be seen. But what’s clear is that Ahmed Khalfan Ghailani, confronted with real-live testimony and flanked by skilled defense lawyers in a U.S. federal court for all to see, is actually getting a fair trial.
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