White House undeterred after Ghailani terror case verdict

By Anne E. Kornblut and Peter Finn
Washington Post Staff Writers
Thursday, November 18, 2010; 4:17 PM

White House officials said Thursday that the acquittal of Ahmed Ghailani on all but one of more than 280 criminal charges in the 1998 bombings of U.S. embassies in East Africa would not undermine their effort to try former Guantanamo detainees in civilian court, even as the mixed verdict reignited debate over that policy.

White House press secretary Robert Gibbs said Ghailani - the first former detainee to be tried in federal court - will receive a lengthy prison sentence for his conviction on one count of conspiracy.

"In the case of Mr. Ghailani, there was a guilty verdict, a minimum sentence of 20 years that incapacitated somebody that has committed a terrorist act and because of that incapacitation is not going to threaten American lives," Gibbs told reporters.

Gibbs deflected questions about where future trials will be held but said President Obama "remains committed to closing Guantanamo Bay," a process that would require trying detainees in civilian courts or in the military commissions established during the Bush administration.

Republican lawmakers, however, said the verdict should force the administration to abandon the civilian trials. "I am disgusted at the total miscarriage of justice today in Manhattan's federal civilian court," said Rep. Peter T. King (N.Y.), the ranking Republican on the Homeland Security Committee. "This tragic verdict demonstrates the absolute insanity of the Obama administration's decision to try al-Qaeda terrorists in civilian courts."

After deliberating for five days, a jury found Ghailani, 36, guilty of conspiracy to damage or destroy U.S. property but acquitted him of multiple murder and attempted-murder charges for his role in the bombings.

The Obama administration had hoped that a conviction on most, if not all, of the charges would help clear the way for federal prosecutions of other Guantanamo detainees - including Khalid Sheik Mohammed and four alleged co-conspirators accused of organizing the Sept. 11, 2001, attacks.

President Obama's strategy, however, has run into fierce, cross-party opposition in Congress and New York, where the administration once hoped to try Mohammed, in part because of concerns that it would be harder to win convictions in civilian court. Senior administration officials said in recent interviews that Mohammed and other accused 9/11 conspirators will probably remain in military detention without trial for the foreseeable future.

The failure to convict Ghailani, a native of Tanzania, on the most serious terrorism charges bolstered the arguments of those who say the military prison at Guantanamo Bay, Cuba, should be kept open, both to host military commissions for some prisoners and to hold others indefinitely and without trial under the laws of war.

Even so, administration officials said that the Ghailani case should be seen as an example of what can go right in federal court: There were no safety threats resulting from trying him on U.S. soil, as some critics have said there would be if Mohammed were tried in New York. "Not once was there a security concern" from the transfer or the trial of Ghailani, Gibbs said.

Ghailani could be sentenced to up to life in prison. He is the fifth person convicted for his role in the bombings in Nairobi, Kenya, and Dar es Saalam, Tanzania, which killed 224 people, including 12 Americans.

At the Justice Department on Thursday, spokesman Matt Miller said the case will ultimately yield a long prison sentence. "One of the strengths of the criminal justice system is its ability to handle difficult cases," Miller said. "This was a difficult case in that there were questions about Ghailani's treatment during the previous administration" - such as the use of enhanced interrogation techniques - "that led to a key witness being excluded."

"Despite that fact, though, the jury handed down a sentence that will lead to a very long sentence - 20 years to life," Miller said.

But the verdict was still a blow to administration officials, who were quietly confident that Ghailani would be found guilty on all charges. For some, a conviction on only one count amounted to a close call. Had he been cleared of all charges, the administration would probably have been forced to take Ghailani back into military custody rather than see him released.

Ghailani, a former Islamic cleric, was captured in Pakistan in July 2004 and turned over to the CIA, which held him in several secret prisons overseas before he and 13 other high-value detainees were transferred to Cuba in September 2006.

At a 2007 military hearing at Guantanamo Bay, Ghailani had presented himself as an unwitting participant in the embassy bombings. At the end of the four-week trial, one of his attorneys told the jury he was a "dupe" who was fooled by al-Qaeda conspirators into buying a truck and gas tanks used in the Tanzanian attack.

Analysis of the verdict is likely to focus on U.S. District Judge Lewis A. Kaplan's decision to exclude the testimony of a Tanzanian whom the prosecution had described as a potentially "giant witness." The man was expected to say that he sold Ghailani explosives used in the attack.

But the judge ruled that the government learned of the witness only through the use of coercive interrogations at CIA prisons and that the participation of the witness would taint the process.

"The court has not reached this conclusion lightly," Kaplan wrote, barring the testimony. "It is acutely aware of the perilous nature of the world we live in. 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." The prosecution did not seek to introduce any statements Ghailani made to the CIA.

The verdict, on top of that ruling, will be seized upon by those who argue that high-value detainees who were interrogated by the CIA should be tried only in military commissions, where the rules were written to be less stringent on the admission of evidence stemming from harsh interrogations.

"One of 285 counts is not exactly a track record for a prosecution team to be proud of," said Kirk Lippold, former commander of the USS Cole, which was attacked by al-Qaeda in 2000. "I think the administration is now in a position where they have to get serious about using military commissions. This case sends a clear and unmistakable signal about using civilian courts: It didn't work."

But human rights activists who have long called for the use of federal trials said the verdict vindicated their approach.

"Conspiracy to blow up an embassy is a serious conviction," said Tom Malinowski, Washington director for Human Rights Watch. "I hope the conclusion people draw from this is that this is the way to get swift and sure justice."

He added: "The original sin here is torture. It would have haunted a military trial, too, with likely the same result. The only difference is that in this courtroom, Ghailani was convicted with legitimacy and finality."

Administration officials appear not to be drawing that conclusion. Although there is little support in the administration for the widespread and exclusive use of military commissions to prosecute Guantanamo detainees, there is growing recognition that the degree of political opposition to holding federal trials is insuperable.

finnp@washpost.com kornbluta@washpost.com Staff writer Jerry Markon and staff researcher Julie Tate contributed to this report.

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