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Ghailani`s case takes a new twist

19th December 2010
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Lawyers for Ahmed Khalfan Ghailani, the former Guantánamo detainee who was acquitted of more than 280 counts of murder and conspiracy last month in a terrorism trial in Manhattan, asked the trial judge on Friday to dismiss the sole count on which he was convicted.

The lawyers argued that because Mr Ghailani was acquitted of so many charges stemming from the bombings in 1998 of two United States Embassies in East Africa, there was insufficient evidence to support his conviction, for a single count of conspiracy to destroy government buildings and property.

The lawyers cited what they called “the irreconcilability between the sole count of conviction and Ghailani’s acquittal on all other counts of the indictment, which, without dispute, all arose out of the exact same conduct and evidence.”

The only way such a conviction could stand, they argued, would be if Mr Ghailani had conspired to destroy government buildings other than the two embassies. “However, there simply was no proof - nor even argument - linking Ghailani to conduct exclusive of the embassy bombings,” the lawyers said in a motion filed in United States District Court.

Mr Ghailani, 36, the first former Guantánamo detainee to be tried in a civilian court, is scheduled to be sentenced on January 25. He faces a term of 20 years to life. His lawyers also asked the judge, Lewis A. Kaplan, to dismiss a separate jury finding; if he does so, that could reduce Mr Ghailani’s maximum sentence to 20 years.

The charge Mr Ghailani was convicted of carries a sentence that can vary, depending on whether a defendant’s conduct is found to have caused deaths or injuries.

The jury, in its verdict on November 17, said the government had proved that Mr. Ghailani’s conduct “directly or proximately caused death to a person,” a finding that made him eligible for a life sentence. But Mr Ghailani’s lawyers argued that there was not enough evidence to support that finding, according to the motion, submitted by one of those lawyers, Michael K. Bachrach.

A spokeswoman for Preet Bharara, the United States attorney for the Southern District of New York, had no comment on the defense’s arguments. Mr Bharara’s office is expected to respond in court papers, and he has said the government will seek a life sentence.

The verdict in Mr Ghailani’s trial has deepened the debate over whether terrorist detainees should be tried in civilian courts, with some critics charging that the overwhelming number of acquittals for Mr Ghailani shows how risky civilian trials can be. Mr Ghailani, who was captured in 2004, was held for nearly five years, first in a secret overseas prison run by the Central Intelligence Agency and later at the naval base at Guantánamo Bay, Cuba.

He was moved into the civilian system last year.

At his trial, prosecutors argued that he had played a key role in Al Qaeda’s plot to bomb the American Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. The bombings killed 224 people and wounded thousands.

Prosecutors said Mr. Ghailani had helped in the logistical preparations for the Tanzania attack, including buying the truck that was used to carry the bomb and gas tanks that were placed inside it to increase the force of the blast. Mr Ghailani’s lawyers contended that he was duped into assisting in the conspiracy.

The government has also said Mr Ghailani later trained with Al Qaeda and worked as a bodyguard for Osama bin Laden, but those accusations were not included in the criminal charges, and the jury was not told about them.

In seeking the dismissal of the conviction, Mr Ghailani’s lawyers described what they called “the overwhelming statement of the jury acquitting” him on the other counts. As an alternative, the lawyers asked Judge Kaplan to grant Mr. Ghailani a new trial on the conspiracy count.

But Daniel C. Richman, a Columbia University law professor, said that attacking a conviction as inconsistent with acquittals of the same defendant was rarely successful.

“The bottom line is that inconsistent verdicts make us uncomfortable but we completely wrap our doctrine around them and accept them,” said Professor Richman, who is a former federal prosecutor.

“In large part because the government is unable to complain about inconsistent acquittals,” he added, “the Supreme Court has made clear that inconsistent convictions will generally pass muster.”

SOURCE: GUARDIAN ON SUNDAY
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