The LWOT

The LWOT: Ghailani verdict questioning continues; Germany prepares for terror threat

Foreign Policy and the New America Foundation bring you a twice weekly brief on the legal war on terror. You can read it on foreignpolicy.com or get it delivered directly to your inbox -- just sign up here.

Ghailani verdict questioning continues

Obama administration officials and Democratic leaders are pushing back against criticism leveled against them after former CIA and Guantánamo Bay detainee Ahmed Khalfan Ghailani was convicted Nov. 17 on only one, a conspiracy charge in the 1998 Embassy bombings (NYT, Washington Post). Officials pointed to the minimum 20-year sentence Ghailani faces, the lack of security issues at the trial, and the fact that contrary to some concerns, Ghailani did not turn his trial into a "soapbox" to express radical views. Other officials, such as Ghailani's former military lawyer and the current head of the military commissions system Col. Jeffrey Colwell, said that observers "seem to suggest that he [Ghailani] should have been convicted, and would have been convicted by a military commission... Its disturbing if there's a system designed to assure convictions. That's a problem" (AJE).

Still, as Republican leaders continued to hammer the Obama administration for its decision to bring Ghailani and possibly other terrorist suspects before civilian courts, the silence of President Barack Obama and U.S. Attorney General Eric Holder on the verdict has been taken as another sign that the prospect of civilian terrorism trials, as well as closing Guantánamo, have grown dimmer (Washington Post, Miami Herald, Reuters). However, in public remarks White House Press Secretary Robert Gibbs said Obama was "committed to closing Guantánamo Bay to ensure that it is no longer the recruiting poster that it is right now for al Qaeda" (Telegraph).

New York Times reporters Benjamin Weiser and Charlie Savage point out an interesting aspect of the Ghailani trial, that it avoided discussing some of the most contentious issues surrounding this case, from CIA "black sites" to Guantánamo to abuses committed under Bush administration interrogation rules (NYT). And in other Guantánamo news, the full D.C. Circuit Court ruled unanimously against allowing the Justice Department to use classified legal opinions related to Guantánamo in other cases (Legal Times).

Germany braces for new terror threat

German Interior Minister Thomas de Maizière on Nov. 17 publicly warned the German public about information indicating a terrorist attack was planned for the country near the end of this month (NYT, Deutsche Welle, WSJ). De Maizière has ordered a stepped-up police presence on Germany's borders and in public spaces, but said that despite having "concrete indications" of an impending series of attacks, the alerts provided "reason for concern but no reason for hysteria" (AJE). Citing very specific intelligence from an unnamed ally, de Maizière indicated that a small group of radicals from India and possibly Pakistan were either on their way to Europe or already in place, ready to potentially stage a Mumbai-style attack, under the direction or on orders from al Qaeda figure Younis al-Mauretani (Der Spiegel). German authorities are also investigating a suspicious package found Nov. 18 aboard an Air Berlin plane in the former German colony of Namibia, which contained a detonator, batteries, and a working clock (BBC, WSJ).

U.K. Gitmo settlement announced

The United Kingdom reached a settlement worth a reported £14 million on Nov. 16 with 16 men detained at some point at Guantánamo (including one who is still there) who allege British complicity in their abuse at the prison (Guardian, Telegraph). 12 of the men were currently suing the government, while the other four were deemed to have possible grounds for suit later. The government said that no claims of guilt were made as part of the settlement, which came with a non-disclosure agreement for both parties and stopped further release of once-classified documents that showed that top British leaders were involved in decisions that led to the rendition and mistreatment of the men at Guantánamo (BBC).

British authorities this week pushed U.S. officials for the return of the one claimant still at the prison, Shaker Aamer, who alleges that MI5 agents were present when U.S. agents beat him in Afghanistan before he was sent to Gitmo (WSJ, Reuters). British prosecutors on Nov. 17 also announced that they would not press charges against an MI5 agent who interviewed former detainee Binyam Mohamed in Pakistan in 2002, and who allegedly knew of Mohammed's "cruel, inhuman and degrading treatment" during American interrogations (BBC, Guardian). However, an investigation is still ongoing into the same agent's visit to Morocco in 2002, where Mohammed was rendered and reportedly subject to torture at the hands of Moroccan interrogators.

The new UN expert on torture, Juan Ernesto Mendez, urged the United States this week to fully investigate allegations of abuse under former President George W. Bush (AJE). And Carol Rosenberg this week reports on Pennsylvania Democratic Congressman Chris Carney, who revealed to voters while campaigning that he had interrogated prisoners at Gitmo (Miami Herald). The identities of interrogators is a closely guarded secret, though revealing his past did not help Carney win re-election.

 

Trials and Tribulations

  • FBI Director Robert Mueller III met with executives from technology companies such as Facebook and Google during a trip to Silicon Valley this week, reportedly to ask them to make their systems easier to wiretap in the event of a court order being issued for that purpose (NYT). Google has reportedly added employees to search for and delete videos with extremist content, such as those with content from radical cleric Anwar al-Awlaki (Telegraph).
  • In a special UN Security Council meeting on terrorism held Nov. 16, Afghanistan's UN ambassador asked the body's Al Qaeda and Taliban monitoring committee to remove additional Taliban members from its blacklist, in order to facilitate peace and reconciliation negotiations (RFE/RL).
  • A group of fourteen former senior members of the U.S. intelligence community with extensive experience in interrogations have written a letter to U.S. Defense Secretary Robert Gates asking that Gates eliminate a classified part of the DoD Field Manual on interrogations, Appendix M, which allows for harsher interrogation practices under special circumstances (Harper's).
  • A British member of the radical group Revolution Muslim arrested last week for posting the names of parliamentarians who voted for the Iraq war online was charged Nov. 17 with "soliciting murder" for allegedly encouraging attacks on the officials over their votes (AP).
  • The notorious alleged arms dealer Viktor Bout, nicknamed "The Merchant of Death" pled not guilty to terrorism charges in New York Nov. 17 following his extradition from Thailand (WSJ).
  • Despite numerous regulations meant to restrict terrorist financing since 9/11, the Wall Street Journal this week reports that federal authorities are still finding it difficult to monitor and intercept small amounts of money channeled through informal cash exchange networks known as hawala (WSJ).

BERND SETTNIK/AFP/Getty Images

The LWOT

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

Foreign Policy and the New America Foundation bring you a twice weekly brief on the legal war on terror. You can read it on foreignpolicy.com or get it delivered directly to your inbox -- just sign up here.

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.

SHIRLEY SHEPARD/AFP/Getty Images