The jury is out
By Kristen Saloomey
The New York jury deliberating in the trial of accused embassy bomber Ahmed Khalfan Ghailani has more than the defendant's fate in its hands. A guilty verdict, should there be one, is likely to revive the Obama administration's plans to try other Guantanamo Bay detainees in civilian courts.
The US government contends Ghailani played a key role in the al-Qaeda plot to blow up American embassies in Kenya and Tanzania in 1998. The attacks killed 224 people, the vast majority of whom in Kenya's capital Nairobi, and injured thousands.
Ghailani was indicted shortly after the bombings, but it wasn't until 2004 – after the September 11th attacks - that US authorities caught up with him in Pakistan. He was taken to a CIA black site and subjected to "enhanced interrogation" before eventually being transported to Guantanamo.
The US justice department moved him to New York to stand trial last year, before attorney general Eric Holder announced his intention to try Khalid Sheikh Mohammed and four other top al-Qaeda officials in the very courthouse where Ghailani is now on trial.
That plan has gone no where. The new Republican majority in the House of Representatives will make any future attempts difficult as well.
Most Republicans – and some Democrats too - object to bringing the self-described "Mastermind of 9/11" to a courthouse just blocks away from where the twin towers once stood, to enjoy the same constitutional rights as an American citizen.
There's fear that his presence might prompt another attack on New York. Or worse – that he might be acquitted because the courts would not admit evidence obtained through torture.
Ghailani, a test case, has fuelled that fear. Judge Lewis Kaplan set a precedent when he ruled that a key government witness could not testify that he sold Ghailani explosives. Not only had the government learned about the witness through "coercive interrogation" - what legal scholars call fruit of the poison tree – it was Ghailani himself who had given up the information, abridging his right against self-incrimination.
Critics pounced. Liz Cheney, daughter of former vice-president Dick Cheney, reportedly gave this statement in response to the decision:
"By insisting on trying Ahmed Ghailani in civilian court with full constitutional rights, instead of by military commission, President Obama and attorney general Holder are jeopardising the prosecution of a terrorist who killed 224 people at US embassies in Kenya and Tanzania. If the American people needed any further proof that this administration's policy of treating terrorism like a law enforcement matter is irresponsible and reckless, they received it today."
But Human Rights Watch is seizing on the Ghailani trial to make the case for more civilian prosecutions. The organisation's new ad campaign, running in New York taxis, suggests that many Americans do, in fact, support them.
"It keeps America safer," argues HRW's Andrea Prasow, who was in the courtroom for closing arguments in the Ghailani case. "Terrorists use military commissions and the continued existence of Guantanamo Bay as a recruiting tool."
She points out that there is no guarantee that a military tribunal would allow "torture testimony" either.
True, losing the witness was a set-back for the prosecution in the Ghailani case. A not guilty verdict would certainly strengthen calls for military tribunals – but would it endanger the public?
Judge Kaplan’s ruling made another point which has received little attention. Saying he was "acutely aware of the perilous nature of the world in which we live", Kaplan gave his opinion that Ghailani could continue to be held as a prisoner of war until hostilities between the United States and al-Qaeda and the Taliban end - even if he were found not guilty.
Anything is possible. But the government has never lost a terror trial in the Southern District of New York where Ghailani is now awaiting a verdict. Four other men were convicted there in relation to the embassy bombings back in 2001.
Ghailani’s verdict and, to a large degree, the future of civilian trials are now in the jury's hands.
Kristen Saloomey is Al Jazeera's correspondent in New York.
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