CRIMINAL JURISDICTION

Suspected Terrorists should be Transferred to Civilian Custody and Processed in the Criminal Justice System

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Ahmed Khalfan Ghailani was involved in the two bombings of U.S. embassies in Africa in 1998 which killed 224 people, including 12 Americans. To what extent we do not know. The final verdict is mixed on that issue. What we do know is that the New York Times reported Ghailani was captured in Pakistan in 2004 where he was held in one of the CIA’s “secret prisons” for most of the next five years. He was subjected to repeated interrogations and torture during that period before he was transferred to Guantanamo Bay detention facility, according to his attorneys. The Obama administration elected to use the Ghailani case as a test run for its policy that terrorists should be tried in civilian courts rather than before military tribunals (here, here and here). Ghailani was then indicted by a New York federal grand jury on 285 terrorism-related counts, including conspiracy to use weapons of mass destruction and murder in connection with the embassy bombings, and thereafter transferred from military custody to civilian custody.

The Times also reported that last May that U.S. District Court Judge Lewis A. Kaplan issued two significant pretrial rulings in the Ghailani case which seem to pave the way for future prosecution of suspected terrorists, like Khalid Sheik Mohammad, in civilian courts. The judge denied motions by Ghailani’s attorneys to dismiss the charges against him because he had been subjected to torture while held in the CIA’s “black site” facility and because his right to a speedy trial had been violated by the secret CIA pretrial incarceration. Put simply, torture and long term incarceration in secret prisons without an attorney or due process protections will not stand as a bar to terrorism prosecutions in Judge Kaplan’s court—a significant departure from longstanding constitutional precedents in our system of  justice.

But on the day before the Government was to present its case Judge Kaplan handed down a ruling which, some legal experts believe, damaged the prosecution’s case, according to theTimes. The judge ruled the Government could not use Hussein Abebe as a witness because the CIA learned about him through Ghailani’s tortuous interrogations. Abebe was prepared to testify he had sold Ghailani the explosives used to destroy the embassies. Judge Kaplan, however, tempered his ruling with the observation that even if Ghailani were found not guilty, he could be held indefinitely as an “enemy combatant” until “hostilities between the United States and al Qaeda and Taliban end.”

Last month, following a four-week trial, an anonymous six-man, six-woman jury acquitted Ghailani of 284 counts while finding him guilty of one count of conspiracy to destroy government buildings and property. He faces a minimum of 20 years and a maximum of life imprisonment on that one count at his sentencing scheduled for January 25, 2011. Lead prosecutor in the case, Preet Bharara, said he will seek a life sentence for Ghailani. Ghailani’s four attorneys presented a defense that their client had been “duped” into assisting in the conspiracy to destroy the embassies and will obviously push for a much lesser sentence because of the jury’s verdict.

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