Ghailani, Guantanamo, the Law and More…

Ahmed Khalfan Ghailani was the first Guantanamo detainee to stand trial in a civilian court. Ghailani was charged with 285 offenses relating to his alleged complicity in the Al Qaeda plot that led to two American Embassies being bombed on August 7, 1998. The attacks took place within ten minutes of each other. One of the embassies was in Nairobi, Kenya, where more than 200 people died, and the other was in Dar es Salaam in Tanzania, where at least eleven people were killed.
Ghailani was a Tanzanian national, and had been arrested with 13 others in Pakistan on July 25, 2004, after a gunfight with local law enforcers that lasted 14 hours. At the time of his arrest, he had a $25 million bounty on his head.
Ghailani’s trial had started in Manhattan Federal Court, New York, on October 4. Two days after the official start of the trial, presiding judge Lewis A. Kaplan ruled that a key witness to the prosecution’s case – Hussein Abebe – would not be allowed to give evidence. Abebe, an African miner, had claimed that he had sold TNT to Ghailani. The authorities had no knowledge of Abebe until Ghailani had mentioned him. The circumstances of how Ghailani came to name this man have been disputed, with defense lawyers claiming Ghailani was under pressure, and probably tortured. In May, Judge Kaplan had overturned Ghailani’s lawyers’ attempts to have the trial scrapped on the grounds that the defendant had been tortured.
On the issue of evidence from Hussein Abebe, US District Court Judge Kaplan argued that: “It’s abundantly clear that there are two remarkably different factual narrations that can be drawn from the evidence. Sometimes, the desirability of a witness is reexamined in light of pretrial proceedings.”
Andrew McCarthy, who had successfully prosecuted Omar Abdel Rahman, was not happy about the restrictions imposed by Judge Kaplan, writing in October that:
I imagine this must infuriate people — it still infuriates me after 25 years in the biz. Here you have Ghailani: he has confessed to the bombings; he continued to be a top al Qaeda operative (even a bin Laden bodyguard) for years afterwards, until his capture in 2004; and he not only bought the TNT used in Dar es Salaam, but identified whom he got it from — a witness who corroborates his confession and is prepared to testify. Yet, because of a court ruling and DOJ concerns about opening up the interrogation can of worms, defense lawyers know the jury will learn none of this information. So what happens? Ghailani’s lawyer opens the case by telling jurors that, in 1998, his client was a babe in the woods who was never a member of al Qaeda, never “agreed or signed on to” bin Laden’s edicts to kill Americans; and, in his naivete, was duped by a friend into buying a truck he had no idea would be used by terrorists to bomb an embassy. The lawyer looked the jury in the eye and said, Ghailani “is not simply presumed innocent. He is innocent.”
In the end, the jury took four and a half days to deliberate (with one juror complaining that she was being “attacked” by the others for holding firm to her opinions)  and returned its verdict that Ghailani was guilty of only one charge. For conspiring to attack federal buildings he will have a minimum twenty-year jail term when he is sentenced in January. Prosecutor Preet Bharara is urging a life sentence.
The trial had included no evidence that had been gained through torture, but it has left a divisive legacy. Republicans such as  Long Island congressman Pete King described the trial result as “a disgraceful miscarriage of justice.” He said:
“It shows how totally wrong the Obama administration is to bring a case like this to civilian court. He was acquitted of 224 counts of murder.”
The administration had already caused controversy when it had announced that the civilian trial of Khalid Sheikh Mohammed (KSM), alleged architect of the 9/11 attacks, should take place in New York, near the Ground Zero site where so many Americans were killed. KSM is the uncle of Ramzi Yousef who bombed the WTC on February 26, 1993, killing six people. In Manila, investigators had found Yousef’s notebook in which he detailed plans for “Operation Bojinka,” a plot to blow up US-bound planes crossing the Pacific.
Khalid Sheikh Mohammed was arrested in Pakistan in 2003, and he has admitted to masterminding 9/11. However, KSM has admitted this while subjected to “waterboarding,” which is regarded as a form of torture. The person being interrogated is placed on his back, with a wet cloth over his face and then water is poured onto the cloth, giving the interrogated person a sensation of being drowned.
The issue of Guantanamo has caused controversy since 2002, when it was first use to house enemy combatants in the War on Terror. Equally controversial has been the related practice of “extraordinary rendition” where a person is taken from one country to be interrogated in another, often a country where judicial standards of a detainee’s rights are substantially lower than in America or Europe.
The case of Ghailani has at least confirmed his guilt on charges of  conspiracy “to damage or destroy US property with explosives,” but it has satisfied neither side in the debate. The death penalty was never “on the table” in the commencement of Ghailani’s trial, and he will be imprisoned for at least twenty years, but his narrative of “naive innocence” has been endorsed.
Evidence submitted before a military court is not subject to all of the principles of law that are enacted in a civilian court, and Guantanamo detainees are rarely the “innocent victims” that their lawyers claim them to be. Of all former detainees within Gitmo, upon release, one in five has gone on to be suspected of rejoining the armed jihad against the West, stated a classified Pentagon assessment, discussed in January 2010. The Al-Qaeda stronghold in Yemen has a leadership that includes former Gitmo detainees.
Balancing the rights of detainees, even those who were apprehended while engaged in combat against U.S. troops, against the rights of a nation to protect itself from the predations and manipulations of jihadists, is a difficult task to achieve. Being harsh invokes accusations of abuse, and being tolerant can allow known Al Qaeda operatives to return to their former areas of influence.
Guantanamo is a rallying-point for Islamists and radical Muslims around the world. When claims were made that Korans were deliberately flushed down the toilet in Guantanamo, this information circulated in Muslim countries and on the internet and is still presented as fact, despite being unsubstantiated. The story had led to riots in Muslim countries, in which at least 16 people were killed.
The cases of Guantanamo detainees being allegedly deprived of rights are fuel to young Muslims who feel disaffected, and could be seen as a recruiting ground for Islamism, if not outright jihad. There have been well-publicized cases of detainees such as Omar Khadr of a Toronto-based family where his father Ahmed Said Khadr had been an active jihadist, and who had been killed in an airstrike in Pakistan in 2003.
Omar Khadr was the youngest person to be detained at Guantanamo. He had been arrested in Waziristan in Pakistan’s tribal areas in 2002 when he was 15 years old. He had been accused of throwing a grenade that injured two American soldiers, and in this battle with US troops one Special Forces medic, Army Sgt. 1st Class Christopher Speer, had been killed. Omar Khadr had argued for years since his detention that he had been innocent, and frequently showed the wounds that he had suffered in the fighting, when he had been shot twice. On October 25, 2010, before a military tribunal at Guantanamo, Omar Khadr pleaded guilty to “murder in violation of the laws of war, attempted murder in violation of the laws of war, conspiracy, two counts of providing material support for terrorism and spying in the United States.”
Obama had promised to close down Guantanamo but necessities of the real world appear to have prevented this from taking place.  Four years ago, President George W. Bush declared that he wanted to close down Guantano. He said:
But I also recognise that we’re holding some people that are darned dangerous, and that we’d better have a plan to deal with them in our courts. No question, Guantanamo sends, you know, a signal to some of our friends – provides an excuse, for example, to say, ’The United States is not upholding the values that they’re trying (to) encourage other countries to adhere to.’ My answer to them is, is that we are a nation of laws. Eventually, these people will have trials and they will have counsel and they will be represented in a court of law.
In October 2008, President Bush confirmed that the closure of Guantanamo would cause too many legal and political problems to be a viable option. His successor appears to be caught in the same dilemma – wanting to close the camps but not having any practical alternative.
A military tribunal is a court of law. The current administration has decided that KSM, someone fundamentally important in the battle against Islamist terrorism, should be tried in a civilian court but is operating a dual standard. Despite the administration’s open concerns about military tribunals for terrorists (when Islamist terrorists have already made a decision to be “at war” with religious/political enemies), the tribunal involving Omar Khadr is the first to have taken place in Guantanamo since the president took office.
Propaganda and Backlash
Moazzem Begg (pictured below) is a British-born former Guantanamo detainee who had admitted attending two al-Qaeda training camps in Afghanistan. He was arrested in February 2002 and detained at Bagram air base in Afghanistan, which is still used for interrogation and detention of suspected terrorists and insurgents. A year after his detention, Begg had been sent to Guantanamo, and released without charge in 2005. Before he had gone to Afghanistan, Begg had run a bookshop in Birmingham that sold books promoting jihad.
Following his release, Begg has portrayed himself as a victim, and set up a website called Cage Prisoners. The objectivity of this website has been called into question – its accounts of the people detained at Gitmo are hagiographic, as if they are all innocent martyrs. The current edition of the site carries interviews with Zaynab Khadr, sister of self-confessed terrorist Omar Khadr, declaring how her brother was innocent. The emotive style and politico-religious bias of the reports do little to highlight specific cases that might be genuine abuses of procedure. It also urges Britain to prosecute George W. Bush for acts of torture.
Cage Prisoners, despite its bias and willingness to deal with the biased output of Press TV and its presenters (although Press TV represents the Iranian government that kills democracy activists), is still lauded on the left. Cage Prisoners has supported Anwar al-Awlaki and in 2008 had the terror-supporting preacher give a speech at its annual dinner by electronic link, and has invited Awlaki to attend other functions. Moazzem Begg has had direct links with people who have gone on to plot terrorism such as Dhiren Barot and he has said of Afghan insurgents: “I believe in the inalienable right to defend yourself against foreign occupation.”
Begg and Cage Prisoners  are regarded with such esteem by the British left that Amnesty International sacked a senior official who criticized them. Gita Saghal was suspended for describing Begg as “Britain’s most famous supporter of the Taliban” and claiming that Amnesty International’s links to Begg were a “gross error of judgment.”
Britain Pays Guantanamo Detainees
Begg, Cage Prisoners and Amnesty International have campaigned for the release of detainees at Guantanamo who have gone on to launch successful campaigns against the British government. Recently, twelve individuals have been told that they will receive millions of dollars in compensation. All of these individuals were British residents or citizens, most had been in Guantanamo, and at least six of these people had alleged that the British authorities were complicit in their torture before they were sent to Guantanamo.
Binyam Mohamed (pictured above) was released from Guantanamo in February 2009. At that time, he was described by Thomas Joscelyn as someone who had “become something of a martyr in Brown’s nation.” In the Weekly Standard, Joscelyn wrote:
  1. The detainee is an Ethiopian who lived in the United States from 1992 to 1994, and in London, United Kingdom, until he departed for Pakistan in 2001.
  1. The detainee arrived in Islamabad, Pakistan, in June 2001, and traveled to the al Farouq training camp in Afghanistan, to receive paramilitary training.
  1. At the al Farouq camp, the detainee received 40 days of training in light arms handling, explosives, and principles of topography.
  1. The detainee was taught to falsify documents, and received instruction from a senior al Qaeda operative on how to encode telephone numbers before passing them to another individual.
At a minimum, therefore, we know that Mohamed has admitted being an al Qaeda-trained operative.
Binyam Mohamed had arrived in Britain in 2000, claiming asylum, and then apparently converted to Islam before he left to go to Pakistan. He was among six men who had launched a High Court lawsuit against Britain’s intelligence services, MI5 and MI6 and three other government departments. The defendants were Mohamed, Bisher al-Rawi, Jamil el Banna, Richard Belmar, Omar Deghayes, and Martin Mubanga. In their lawsuit, which began in March 2009, they maintained that the UK government was complicit in their torture, and their subsequent transfer to Guantanamo and maintained that the British should have resisted their transfer.
The Court of Appeal had issued a ruling in May 2010 in which it said that any evidence that the British government intended to use in its defense must be made openly. There would be no room to keep details secret. This ruling meant that the government felt it could not compromise individual officers from its intelligence agencies.
As a result of the allegations made in the lawsuit, two intelligence agents were placed under investigation by London’s Metropolitan police. One of these had interviewed Binyam Mohamed in Pakistan on May 17, 2002, on the same day that Mohamed alleges that he was tortured. The man, known as “witness B” is an employee of MI5, Britain’s homeland intelligence agency. The intelligence officer has recently been told that he will not be facing prosecution.
The head of MI5, Jonathan Evans, gave a statement: “Witness B is a dedicated public servant who has worked with skill and courage over many years to keep the people of this country safe from terrorism and I regret that he has had to endure this long and difficult process.”
The affair has caused embarrassment to the British government, which still maintains that it is innocent of charges. It has agreed to pay compensation rather than undergo a lengthy and even more costly court procedure that could last for years, and would involve intelligence officials giving evidence rather than doing their work.
This month, the UK government said decisions on accepting evidence gained through the “torture” of waterboarding would be made now by government ministers, and not by intelligence officials.
The problem with the Ghailani case is just one aspect of a much larger picture. America has a right to defend itself from attack, and it has a right to fight back when attacked. Waterboarding has been used to damage and discredit America in the columns of newspapers around the world, and as a practice it cannot be justified unless there is a real knowledge that information that could save lives is being withheld. However – who is to know when such knowledge is held by the prisoner or not?
Islamists must be celebrating at the ease with which Ghailani has evaded conviction on counts of murder, and also that individuals who supported terrorism have managed to gain massive compensation from the British government. When Khaled Sheikh Mohammed stands trial, there will be further controversy.
Discussions about the Ghailani verdict can be found in the New York Times, in the Guardian (voiced by Pamela Geller) and the Washington Post.
It is imperative that if enemy combatants are to be tried in civilian courts that a different set of procedures must be used in interrogation, and cruel and degrading treatment could invalidate authentic evidence. Even if abuse disappears entirely, unsubstantiated allegations of abuse will probably continue. How can a judge – or anyone – decide before a trial whether torture has happened or not?
Detaining people who are engaged in terror training or illegal combat is morally defensible, but must eventually lead to some sort of hearing.
The administration of George W. Bush had problems trying to balance a detainee’s basic rights with the same code of laws that American citizens live under. Guantanamo began as an act of expediency, taking suspected terrorists “out of the game,” but sooner or later a detainee must have a chance to defend himself in a court of law.
What is in dispute, and will remain in dispute, is whether that eventual trial should be under civilian or military conditions. Ghailani’s trial – the first civilian trial of a Guantanamo detainee – has ended up looking like a compromise. It has gained a mandatory twenty-year jail term, but failed to bring a decisive result. The inconclusive results give no signposts for the future of such trials. Rep. Peter T. King, in his statement after the Ghailani verdict, had said that “Attorney General Eric Holder assured us that ‘failure is not an option.’ “
The outcome of the trial has not been a complete failure, but neither has it been a resounding success.
Adrian Morgan

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