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Guantanamo Detainee Trial May Be Litmus Test

Jun 16, 2009 (Morning Edition)

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Dina Temple-Raston

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The Metropolitan Correctional Center sits just across the street from the Federal Courthouse in downtown Manhattan.

Just a stone's throw from the Brooklyn Bridge, the 11-story, dusky brown structure, looks just like any other apartment building — except for the wire mesh on the inside of the windows.

Ahmed Ghailani arrived here under cover of darkness from Guantanamo Bay prison last week. He is in New York City to stand trial for his alleged role in the 1998 embassy attacks in East Africa. His presence here marks the first time a Guantanamo detainee has moved from the Cuba facility to the U.S. to stand trial.

Ghailani is a diminutive Tanzanian who stands just 5 feet 2 inches tall. In an appearance in court last week, he pleaded not guilty to the charges and has been in the Metropolitan Correctional Center ever since. He is awaiting his fate where, almost 10 years ago, four other men accused in the very same East African bombing case awaited their trial.

Ghailani was indicted along with them more than 10 years ago; the only difference is that at that time he was a fugitive. The earlier embassy trial ended with guilty verdicts for all four men, and they are now serving life sentences in a supermax facility in Florence, Colo.

For the past week, Ghailani has been in the terror wing of the corrections center, a unit called 10 South. This is where, as it so happens, disgraced financier Bernard Madoff is also being housed. It is no accident, however, that Ghailani is being tried in the Southern District of New York. This court has been handling terrorism cases for about as long as al-Qaida has been threatening the U.S.

Prosecutors say Ghailani's case will be a rerun of the earlier one.

"The evidence against Ghailani will be evidence that for the most part has been presented to a jury before," says former U.S. Attorney David Kelley, who was on the previous embassy bombing case and has been responsible for prosecuting a roster of terrorism cases in the Southern District. "The jury was convinced of it, having convicted the defendants in the last case, and an appeals court approved of the evidence and procedures that were used, because those convictions were affirmed on appeal."

The East African embassy bombings happened in 1998. There were two attacks in all: one in Tanzania and another in Kenya.

During the first embassy bombing trial, prosecutors played graphic news footage to put the carnage in stark relief for jurors. It showed the complete devastation of both embassies — all crumbled concrete and twisted rebar.

In all, more than 200 people died in the attack and thousands were injured — most of them local Kenyans and Tanzanians. The attacks were Osama bin Laden's first major salvo in his jihad against the U.S.

Prosecutors say Ghailani was instrumental to the attack. They say he started out as an errand boy for al-Qaida and worked his way through the ranks before he was asked to help buy the truck and chemicals used in the Tanzania bombing. He allegedly left for Pakistan just a day before the attack.

Ghailani was eventually captured in Pakistan in 2004 and was held in CIA custody for two years before he was transferred to Guantanamo.

Ghailani, for his part, says he didn't know that he was helping with an attack against the embassies. During a military hearing in Cuba, he actually apologized for the bombing.

Prosecutors say Ghailani knew precisely what he was doing and, given their success in the last trial, they are convinced they can prove it.

In fact, prosecutors think that this case will be a bit of a layup — which may explain why the Obama administration decided to send Ghailani to New York in the first place. The fact that four men who allegedly worked with Ghailani have already been convicted by a jury here adds some predictability to an uncertain process. What's more, the Southern District has a good track record in these cases. Starting with the 1993 World Trade Center bombing, prosecutors here have been convincing juries to convict terrorists for more than a decade.

Sam Rascoff is a professor at NYU Law School and used to work the intelligence desk at the New York Police Department. He says that kind of history has made the Southern District a go-to court for terrorism cases. In addition to the 1993 World Trade Center case, "they have been centrally involved in the East Africa bombing, prosecuting members of the so-called Bojinka plot that would have downed a number of airliners over the Pacific Ocean as well as, let's not forget, indicting Osama bin Laden himself," he says.

The biggest wrinkle in the Ghailani case involves whether he was tortured; he claims he was. In theory, a judge could dismiss the case on those grounds alone.

Kelley says the issue will likely come up, but it would be unusual for a judge to dismiss the charges. "That's a remedy that is not one that has been given out often, but it is certainly an issue that is likely to receive some scrutiny from the court," he says.

Aside from that, experts agree that the most controversial thing about Ghailani is his return address — Guantanamo Bay, Cuba. He is the Obama administration's test case — the model for how some Guantanamo detainees might be tried and imprisoned in this country. Ghailani is meant to show that a Guantanamo detainee can be treated just like the terrorism suspects who have come before them.

"I don't know of anything that would suggest that Ghailani is any different or any more dangerous than any of the defendants we have had here in the past," Kelley says.

Which, of course, is the point. The Obama administration is counting on the Southern District prosecutors to also prove that using the U.S. court system is a perfectly adequate way to handle any of the Guantanamo detainees who come their way.

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