November 18, 2010
Trying Ghailani in US federal court rather than before a flawed, ad hoc military commission was the smart as well as the lawful thing to do. This case sets the stage for moving the 9/11 trial to a civilian court, too.
Joanne Mariner, counterterrorism director

(New York) - The trial without incident of a former Guantanamo detainee in US federal court shows the superiority of civilian courts over the discredited military commissions, Human Rights Watch said today.  Ahmed Khalfan Ghailani, a Tanzanian citizen, was convicted on one count of conspiracy in connection with the August 1998 bombings of US embassies in Kenya and Tanzania. The conviction carries a minimum 20-year-sentence, and possibly life in prison.

"Trying Ghailani in US federal court rather than before a flawed, ad hoc military commission was the smart as well as the lawful thing to do," said Joanne Mariner, counterterrorism director at Human Rights Watch. "This case sets the stage for moving the 9/11 trial to a civilian court, too."

Human Rights Watch monitored proceedings in the Ghailani trial, as it has with military commission proceedings and selected federal court trials of terrorism suspects. None of the security concerns raised by opponents of civilian trials came to fruition in Ghailani's trial - most New Yorkers were probably not even aware that the trial was taking place, Human Right Watch said

Human Rights Watch said that verdicts in the flawed and untested military commissions were extremely vulnerable to appellate challenge. "The federal court system has been tested over time, while the military commissions are making things up as they go along," Mariner said. 

Ghailani, who was arrested in Pakistan in 2004, was found guilty of involvement in attacks that killed 224 people and injured thousands more. Like Khalid Sheik Mohammed and his co-accused, Ghailani had been held for years at a secret Central Intelligence Agency (CIA) "black site" before being transferred to the US military prison at Guantanamo in September 2006. In May 2009, Attorney General Eric Holder directed that he be moved to the United States and tried in US federal court.

In November 2009, Holder announced that the five defendants in the 9/11 prosecution would be moved from Guantanamo to stand trial in federal district court in New York City, a site of the attacks. After New York officials raised objections based on purported security and cost concerns, the Obama administration suspended its decision to move the 9/11 case to federal court. At present, it is unclear where and when the 9/11 trial will be held.

A controversial issue at the trial, which could be raised in the 9/11 trial, was the use of evidence obtained from the defendant while he was in CIA custody.  In pretrial proceedings in September, Judge Lewis A. Kaplan excluded testimony from a witness whose identity was obtained during Ghailani's coercive interrogation in CIA custody. The judge ruled that its admission was barred by the Fifth Amendment to the United States Constitution, which prohibits self-incrimination. Despite the exclusion of the evidence from trial, the prosecution was able to prove its case using other witnesses and documentary evidence.

"The Ghailani case shows that terrorism suspects can be prosecuted in the civilian system without judges sacrificing time-honored constitutional protections," Mariner said.

Military commissions have been touted as swift and efficient, yet in the nine years since the military commissions were first announced, military prosecutors have brought only five cases to completion, three of them by plea bargain. The federal courts, by contrast, have prosecuted hundreds of terrorism suspects during this period, among them convicted 9/11 conspirator Zacarias Moussaoui and convicted "shoe bomber" Richard Reid.

Ghailani was originally indicted for the embassy bombings in December 1998. A number of his co-defendants, arrested years before him, were tried in federal court in 2001 and sentenced to life in prison without the possibility of parole.

"The trial of Ahmed Ghailani has demonstrated the strength of the civilian court system," Mariner said. "It is time for those accused of plotting the 9/11 attacks to face civilian justice, too."