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Terror detainee largely acquitted

By Peter Finn
Thursday, November 18, 2010; A01

The first former Guantanamo Bay detainee to be tried in federal criminal court was found guilty on a single conspiracy charge Wednesday but cleared on 284 other counts. The outcome, a surprise, seriously undermines - and could doom - the Obama administration's plans to put other Guantanamo detainees on trial in U.S. civilian courts.

After deliberating for five days, a jury of six men and six women found Ahmed 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 1998 bombings of U.S. embassies in East Africa.

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. The administration did not want to rely exclusively on the military commissions that the George W. Bush administration had made a centerpiece of its detention policy.

President Obama's strategy, however, has run into fierce, cross-party opposition in Congress and New York, in part because of concerns that it would be harder to win convictions in civilian court.

The failure to convict Ghailani, a native of Tanzania, on the most serious terrorism charges will bolster 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.

"You deserve a lot of credit," U.S. District Judge Lewis A. Kaplan told the jurors after the verdicts were announced. "You have demonstrated also that American justice can be delivered calmly, deliberately and fairly, by ordinary people - people who are not beholden to any government, including this one."

Ghailani could be sentenced to life in prison and faces a minimum of 20 years, according to the Justice Department.

"We respect the jury's verdict and are pleased that Ahmed Ghailani now faces a minimum of 20 years in prison and a potential life sentence for his role in the embassy bombings," the department said in a brief statement.

Ghailani's sentence will be imposed by Kaplan, and prosecutors in New York said they would seek life in prison.

Ghailani 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.

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.

"This innocent, naive boy was used as a dupe by his friends," said defense attorney Peter Quijano. "Call him a pawn, call him a fall guy, but don't call him guilty."

Analysis of the verdict is likely to focus on the decision of Kaplan to exclude 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."

Republican lawmakers immediately said the verdict should force the Obama administration to abandon civilian trials for Guantanamo detainees.

"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."

But human rights activists who have long called for the use of federal trials said the verdict was a vindication of 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."

But administration officials appear not to be drawing that conclusion. Although there is little support in the Obama 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.

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.

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

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