Ghailani acquitted on all but 1 count in bombingsJames Cohen in News Day, November 17, 2010
Ahmed Ghailani smiled and, when it was over, embraced his lawyers, some of whom appeared near tears.
In a stunning and unprecedentedsetback for the government in a post-Sept. 11 terrorism trial, alleged al-Qaidaoperative Ahmed Ghailani was acquitted Wednesday of 284 terrorism-related counts and convicted of only one charge for conspiring in the 1998 bombings of two U.S. embassies in Africa.
Defying expectations that a Manhattan federal jury sitting in the shadow of theWorld Trade Centerwould favor the government in terror cases, the verdict came as darkness descended at the end of the fifth day of deliberations. As the foreman intoned his first of many "Not guilty" responses, it caught almost everyone in the hushed courtroom by surprise.
Ghailani smiled and, when it was over, embraced his lawyers, some of whom appeared near tears. Prosecutors - who had tried to tie him to the plot with a web of circumstantial evidence - were grim and ashen-faced.
An unexpected outcome
"It is the first time that the presumption of innocence has characterized a terrorism trial since Sept. 11," said Karen Greenberg, director of the Center on Law and Security atNew York University, who attended the three-week trial from start to finish. "Neither the defense nor the prosecution expected this."
As the first civilian prosecution of a former detainee who had been held in secretCIA jails and the Guantánamo military prison, the result could represent a significant and perhaps insurmountable setback for politically controversial Obama administration efforts to try other war-on-terror prisoners in federal courts, experts said.
Ghailani, 36, was convicted only of conspiracy to destroy U.S buildings with an explosive. The jury found that conspiracy "proximately caused" deaths, but acquitted Ghailani of other conspiracies that required an intent to kill people and of 224 murder counts for each of the victims of the bombings.
Ghailani's defense team had admitted that he helped associates compile material for the bomb inTanzania, but argued that he was a "dupe" who never knew he was being used in a terror plot. The jury, experts and defense lawyers said, seemed to have accepted that argument, and found that he did not have intent to kill.
"The government needed to show that he knew what the objectives of this conspiracy were," defense lawyer Peter Quijano said in an emotional news conference outside the courthouse. "We believe he never knew how he was being used by his friends. We still truly believe he is innocent."
The Justice Departmentattempted to put the best face on the result, focusing on the single conviction, which carries a sentence of at least 20 years in prison. "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," spokesman Matthew Miller said.
U.S. District JudgeLewis Kaplan set sentencing for Jan. 25. Without commenting on the result itself, he told jurors that "our nation is a better place" because of their work, adding, "You all have done your duty." Jurors' identities were kept anonymous, and none spoke after the verdict.
The jury never heard evidence that Ghailani had a role in al-Qaida, but U.S. officials assert that after fleeing in 1998 he became a forger for the group and an aide to Osama bin Laden. He was captured in Pakistan in 2004 and subjected to what the government admitted was coercive questioning by the CIA. Ghailani's lawyers say he was tortured. The government didn't seek to use any of his statements at trial, and the jury never heard about his treatment in custody.
'Conscious avoidance' a key
The case against Ghailani also included a detonator and explosives residue found in an armoire where he kept clothes, and a web of documents,cellphoneand travel records indicating that he fled on a flight to Pakistan using a fake name and phony passport along with four other plotters on Aug. 6, 1998 - the day before the bombings.
What prosecutors didn't have was direct evidence - a co-conspirator who could testify that Ghailani knew about the plot. They asked jurors to consider a doctrine called "conscious avoidance" - that Ghailani turned a blind eye - and the last juror note on Tuesday asked about the rules for how far that could take them.Kaplan told them it wasn't a complete substitute for finding that Ghailani intended to accomplish the goals of the charged conspiracies.
"The wrinkle was the judge's charge on conscious avoidance," said James Cohen, a criminal law professor atFordham Universitylaw school. "The jury did not believe the government proved that his intent was killing people."