LWOT special brief: Ghailani convicted on one count of conspiracy, cleared of murder charges

Mixed verdict in 1998 Embassy bombing trial

After five days of deliberations, a New York jury yesterday found Ahmed Khalfan Ghailani guilty of conspiracy to damage or destroy U.S. government property by use of an explosive in the 1998 East African Embassy bombings (original indictment here), but acquitted him of 276 other charges of murder, conspiracy, and terrorism (CNN, WSJ, Washington Post, BBC). The conviction (if it withstands nearly-certain appeals) guarantees that Ghailani, who was detained in Pakistan in 2004 and spent time at a CIA "black site" as well as the prison at Guantánamo Bay before being transferred to civilian custody last year, will serve at least 20 years in prison and could be sentenced to life (AJE, CSM, AP).

The verdict comes after nearly a week of deadlocked jury deliberations, in which one juror wrote to Judge Lewis A. Kaplan saying she felt "attacked" for her views by other jurors (CNN). The unusual decision, which convicted Ghailani of conspiracy to destroy property but absolved him of plotting to kill the people inside it, has led some specialists to believe that the verdict was a means for a divided jury to reach a unified decision (NYT).

The controversial case has long been seen as a bellwether for possible future civilian prosecutions of Guantánamo detainees, especially the other so-called "high value" prisoners, such as 9/11 plotter Khalid Sheikh Mohammed, who like Ghailani underwent harsh interrogation techniques while in CIA custody.  Judge Kaplan dealt the prosecution a major blow last month in forbidding the testimony of Hussein Abebe, who claims he sold Ghailani the TNT used in the bombings, on account of Abebe’s name having been obtained during Ghailani’s CIA interrogations. However, Kaplan also made two rulings that could pave the way for the trial of KSM and others, by refusing in May to dismiss the charges against Ghailani due to his mistreatment while in CIA custody and denying the defense argument that Ghailani’s extended pre-trial detention had violated his right to a speedy trial (NYT). Kaplan also argued in a footnote of his decision barring Abebe that a military court likely would have ruled the same way (Miami Herald).

The Justice Department expressed satisfaction with the ruling, with spokesman Matthew Miller saying that, "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" (Reuters). U.S. Attorney Preet Bharara indicated that he would seek the maximum penalty at Ghailani’s January 25 sentencing hearing. But observers from across the political spectrum noted that the failure of prosecutors to achieve convictions on the most serious charges against Ghailani will likely endanger further efforts to prosecute terrorism suspects in civilian court as well as President Obama’s pledge to shutter Guantánamo (NYT, AP, CSM, Guardian).

Human rights lawyers and civil liberties advocates among others hailed the verdict as a sign that civilian courts could handle sensitive terrorism cases, pointing to Ghailani’s stiff sentence, the trial’s transparency, and the absence of security problems during Ghailani’s time in court (AJE, AP, WSJ, New Yorker). However, prominent Republican lawmakers such as Rep. Peter King lashed out at the verdict, telling reporters, "This tragic verdict demonstrates the absolute insanity of the Obama Administration’s decision to try al-Qaeda terrorists in civilian courts… We must treat them as wartime enemies and try them in military commissions at Guantánamo." (Reuters, NYT, Miami Herald).

National security law experts Benjamin Wittes and Robert Chesney have a must-read post at Lawfare Blog on the legal and political ramifications of the verdict. After noting that the possibility of a life sentence for Ghailani will have little effect on negative perceptions of the verdict, the two note (Lawfare Blog):

…it really is not clear that prosecutors would have fared better in a military commission. There is a fairly pervasive myth that military commissions represent the tough option, while federal courts represent the soft, wussy option…The gross underperformance of the military commissions over many years has not shaken the trope, nor has their quiet development towards greater due process norms. There is no particular reason to think that the government would have gotten in before a commission the key witness that the court in New York excluded.