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Guantanamo Detainee's Trial May Set Tone For Others

Jury selection begins this week in a courthouse in New York City where a Guantanamo detainee is about to go on trial.

A similar plan to hold a trial there for the masterminds of the Sept. 11 attacks provoked a huge backlash before falling apart because of some lawmakers' concerns about the costs of providing security and the effect on lower Manhattan. But the Obama administration is hoping this trial will change that dynamic and set the tone for other prosecutions.

Ahmed Khalfan Ghailani is accused of taking part in one of the deadliest terrorist attacks against the U.S.


Prosecutors say he helped carry out embassy bombings in East Africa in 1998 that killed 224 people and injured hundreds more. But legal experts say they're watching his case for another reason.

"Ghailani is the first of the detainees out of Guantanamo to be transferred into the federal court system," says Ken Wainstein, a partner at the O'Melveny and Myers law firm. He oversaw national security prosecutions during the George W. Bush administration. "He's sort of a trailblazer to the extent there are going to be further detainees transferred out of Gitmo and into the federal system."

There are now 174 men at Guantanamo, and a few dozen of them had been on a path to trial before controversy over where to try them erupted this year. President Obama recently told reporters there's no reason to change course.

"I am absolutely convinced that the American justice system is strong enough that we should be able to convict people who murdered innocent Americans who carried out terrorist attacks against us," the president said.

The Ghailani trial will be the most visible demonstration of that White House strategy.


A 'Test Run' For Future Prosecutions?

Ghailani is a Tanzanian born sometime in the mid '70s. News accounts and documents from a U.S. Department of Defense tribunal show he was captured in Pakistan in July 2004. He was later turned over to U.S. officials and brought to Guantanamo in September 2006. It was June 2009 when he left Guantanamo, and since then he's been living in a secure wing of the Metropolitan Correctional Center in New York, which has housed other accused terrorists and drug lords.

New York city officials say they're not going to roll out expensive new security for his trial.

University of Texas law professor Bobby Chesney says the legal issues in the case are even more important than the politics.

"The Ghailani case is obviously a very important case, as a test run of how criminal prosecution might work in cases in which the defendant has been held in military or other -- CIA -- custody for some sustained period," Chesney says.

Defense lawyers for Ghailani said in a court filing this month that the government's case against him is based on circumstantial evidence about his alleged connection to the bombing. They said that there is no "smoking gun" and "no allegation that Ghailani played a role as a leader or organizer" of the plot.

Prosecutors aren't expected to delve deeply into Ghailani’s activities after the bombing, when he allegedly grew closer to al-Qaida.

Some Issues Already Resolved

Judge Lewis Kaplan, who's presiding over the Ghailani trial, already ruled on two of the major issues that could influence other prosecutions of detainees from Guantanamo.

The first revolves around a detainee's Sixth Amendment right to a speedy trial.

This summer, the judge said the years that lapsed between Ghailani's indictment and his arrival in New York didn't violate his Sixth Amendment rights.

"Had the judge determined that a detainee's speedy trial clock started the moment that he was brought into detention, then all those detainees who were picked up around the world and held in detention would have an argument that they could never face trial in federal court," Wainstein says.

There's a second finding deep inside the judge's opinion that could have implications for other Guantanamo defendants. The judge said prosecutors don't have to hold a defendant in the city or judicial district where he will ultimately face trial.

It's enough, Judge Kaplan said, for the defendant to be in court for a first appearance, a plea and the trial. That means detainees could be held almost anywhere until the proceedings begin.

'Enhanced Interrogation' Could Be A Factor

Human rights advocates are focusing on an even more contentious argument.

"The issue of coercive interrogation and torture have plagued this case from the very beginning," says Karen Greenberg, who directs the Center on Law and Security at New York University. Kaplan has written that "enhanced interrogation techniques" were used on Ghailani at some point after his capture.

Greenberg has been watching to see whether an important witness the government learned about only after Ghailani's harsh interrogation will be allowed to testify against him at the trial.

"This regime of enhanced interrogation continues to poison the system and is now poisoning the federal court system," she said.

Kaplan has signaled he could rule on that critical issue as early as this week. Opening statements are set to begin Oct. 4. And prosecutors estimate the trial could last three or four months.

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