Terror Verdict Complicates Issue Of Detainee Trials

When former Guantanamo detainee Ahmed Ghailani and his lawyers heard that a New York jury had reached a verdict Wednesday about his role in the 1998 bombings of two U.S. embassies in Africa, they sat at the defense table looking completely ashen.

They clearly thought the jury had decided against them. So when the foreman stood up and started reciting a litany of not-guilty verdicts, the air seemed to get sucked out of the room. In the end, the jury acquitted Ghailani of more than 280 counts and found him guilty of just one count of conspiracy to destroy government buildings and property — a charge that could get him 20 years to life in prison.

The Ghailani trial was supposed to have been a sure thing.

White House officials said as much when they decided to try him in a federal court in New York over a year ago. They were confident because four al-Qaida members had been convicted in the very same court in the very same embassy bombing case back in 2001. The Ghailani trial was simply going to be a reprise of the earlier case. But after nine years, things had changed: Witnesses had died, details had been forgotten and, from the outset, the Ghailani case followed a different script.

It was also supposed to be a test case to prove the Obama administration's contention that detainees at Guantanamo Bay in Cuba could be safely tried in criminal courts on American soil. Administration officials told NPR that Wednesday's verdict makes that argument a much harder sell. The failure to convict Ghailani — the first Guantanamo inmate to face a civilian trial in the U.S. — on the most serious terrorism charges plays right into the hands of those who say terrorists should be tried in special courts, not criminal courts, because juries are notoriously unpredictable.

"I am disgusted at the total miscarriage of justice today in Manhattan's federal civilian court," Rep. Peter King of New York, the ranking Republican on the Homeland Security Committee, said in a statement Wednesday night.

"In a case where Ahmed Khalfan Ghailani was facing 285 criminal counts, including hundreds of murder charges, and where Attorney General Eric Holder assured us that 'failure is not an option,' the jury found him guilty on only one count," King said. "This tragic verdict demonstrates the absolute insanity of the Obama administration's decision to try al-Qaida terrorists in civilian courts."

The Justice Department tried to put a different gloss on the verdict, stressing that the single count carries a sentence of 20 years to life in prison. Prosecutors said they plan to seek the maximum penalty.

Still, the verdict casts a pall over the administration's behind-the-scenes efforts to try accused Sept. 11 mastermind Khalid Sheik Mohammed and the four other men implicated in the attacks in a U.S. federal court.

This time last year, the White House announced that the accused plotters would be tried in a federal court in New York. Critics worried aloud about security and the possibility that a jury might actually allow the men to go free. Holder said Mohammed could be held indefinitely, as an enemy combatant, even if a jury didn't convict. The argument didn't dissuade critics, and Holder has essentially put the Sept. 11 trial decision on hold.

That said, it isn't lost on administration officials who told NPR that the Ghailani verdict came perilously close to the nightmare scenario: a jury permitting an accused terrorist to go free.

The outcome was partly due to the special circumstances surrounding Ghailani himself. He had been captured in Pakistan in 2004 and transferred to one of the CIA's secret prisons before he ended up at Guantanamo Bay. His lawyers said he was tortured.

In the 2001 embassy bombing case, the defendants' own statements to the FBI were used against them. But because of the specter of torture hanging over the Ghailani proceedings, the incriminating statements he made under interrogation were not presented by the prosecution. What's more, one of the government's key witnesses — who was supposed to testify that Ghailani had bought huge quantities of TNT prior to the attack — never actually testified. The government only became aware of him after his name was revealed during Ghailani's interrogation at the CIA black-site prison, so the judge ruled he couldn't take the stand.

Taken together, those factors helped create enough reasonable doubt for a jury to find Ghailani not guilty of nearly all of the charges.

Ghailani is scheduled to be sentenced at the end of January, and his attorneys may decide to appeal the one count on which he was convicted. After the verdict was announced, Ghailani's attorney said he still believes his client is completely innocent.

Analysts say the case is telling when it comes to juries and terrorism charges. Before Wednesday's verdict, there had been a sense that terrorism suspects whose fate lay in the hands of a New York jury were going to be found guilty — partly because of the Sept. 11 attacks on the city and partly because every terrorism trial so far in New York has ended up that way.

Prosecutors, to a certain extent, also may have taken for granted that a New York jury would favor them. The Ghailani verdict flies in the face of that. The jury weighed the evidence against someone prosecutors said time and again was a member of al-Qaida and played a role in a major terrorist attack. But the jury just wasn't convinced.

Judge Lewis Kaplan told the jurors that their verdict said a lot about the U.S. justice system.

"American justice can be rendered calmly, deliberately and fairly by ordinary people, people who are not beholden to any government, not even ours," Kaplan said.  "It can be rendered with fidelity to the Constitution. You have a right to be proud of your service in this case."

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