A Dangerous Somali Fudge

Late Monday night the Obama administration reported that it had transferred a Somali national called Ahmed Abdulkadir Warsame from detention on a US warship somewhere in the Persian Gulf to the jurisdiction of the New York federal court.

Warsame is accused of having provided material support to the radical Somali Islamic group Al Shabab and Al Qaeda in the Arabian Peninsula. He was reportedly detained on a fishing trawler somewhere in international waters between Somalia and Yemen. Another individual detained with him has since been released.

On the face of it, the Obama administration’s decision to refer Ahmed Abdulkadir Warsame’s case to be heard in federal court is to be welcomed. The criminal justice system is both the most appropriate and best-equipped venue to adjudicate such cases. SEE THE REST OF THIS POST

Old School Justice

Yesterday in a courtroom in downtown Manhattan nothing very special happened. A jury of ordinary New Yorkers sifted the evidence presented to them and convicted the defendant of a serious charge they felt the Prosecution had substantiated.

The defendant in question was Ahmed Ghailani who was accused of playing a supporting role in the 1998 bombings of two US embassies in Africa. The bombings were horrific. In Nairobi at least 212 people were killed including embassy staff and many local Kenyan residents. In Dar es Salaam at least 11 people were killed. Many hundreds more were severely injured by the blasts.

Ghailani has been convicted of conspiracy to destroy US government buildings with explosives. He faces a minimum sentence of twenty years and maximum sentence of life in prison. He is now a convicted felon. Due process was observed. Evidence collected illegally was excluded. Justice was done.

That’s the way it’s supposed to be. As Rep. Bennie Thompson (D-Miss), outgoing Chair of the House Homeland Security Committee, put it:

“I trust our men and women in uniform to protect the public. I trust our system of jurisprudence in America. I don’t care how bad you are, we can still put you on trial and if the evidence warrants a conviction you’ll get it.”

Susan F. Hirsch, whose husband was killed in the Tanzania attack, thanked the jury for its service, but added:

“I can’t help but feel that the case would have been stronger had Ghailani been brought to trial when he was captured in 2004.”

It’s an important point from someone directly concerned in this case – a little more police work and a lot less thuggery would have served the prosecution’s case much better.

Of course it didn’t take long for the fear-mongers to regroup and for their chorus of disapproval to reach the airwaves. Representative Peter King (R-NY) issued a statement in which he said he was “disgusted at the total miscarriage of justice” and that Ghailani’s conviction demonstrated “the absolute insanity” of trying terrorism suspects in federal court. No, I didn’t quite follow his logic either.


Ghailani and the Torture Trail

Daniel P. Moynihan U.S. Courthouse (c) Spencer Platt/Getty Images

There is something stately about the Daniel P. Moynihan courthouse in lower Manhattan, it rests between the bustle of Chinatown and the Brooklyn bridge.  Early Tuesday morning, commuters and traffic whirled by as usual, not noticing the few camera crews that had bothered to show up.  A terrorist trial was supposed to bring the city to its knees, but in the early morning the only flurry to be seen were the graceful movements of a group of elderly Chinese ladies doing Tai Chi in the park across the road.

The wheels of justice turn slowly but inexorably in one of the most fascinating cases to see the inside of a US courtroom in recent years.  Ahmed Ghailani is on trial for his role in the 1998 US Embassy bombings in Kenya and Tanzania.  The heinous murder of 224 people, mainly Africans, whose only crime was to turn up for work as usual on August 7, 1998.  They included Rosie Mwangi, who tried to comfort another victim for two days even as she lay dying trapped in the rubble of the secretarial school where she worked next door to the embassy in Nairobi.

It was a wicked and cowardly act, so shameful that Al Qaeda tried to justify it later by saying the genocide in Rwanda was planned inside the embassies, to mask their complicity.  Twelve years later the victims of the bombing may finally get to see justice in a US Court.  Three others have been successfully convicted and are safely imprisoned in Florence, Colorado, no more a threat to society than Charles Manson or the Unabomber.

But for any observer there is also an unsettling Kafkaresque subtext to this trial.  Post 911, Ghailani was caught in Pakistan in 2004 and then he was placed in what the CIA euphemistically called the “High Value Detainee Program”. According to the court he was tortured in custody, the fruits of which have already infected the trial, and the testimony of a key witness – Hussein Abebe – has been thrown out.

But in justifying his decision to exclude the tainted evidence, Judge Kaplan said Ghailani’s status as an “‘enemy combatant’ probably would permit his detention as something akin to a prisoner of war until hostilities between the United States an Al Qaeda and the Taliban end, even if he were found not guilty in this case.”

To be clear, if Ghailani is found guilty he will go to jail, and if he is found by some legal quirk to be not guilty .. well …he will go to jail.  While this may reassure a few, it should concern us all,  the point of a trial ought to be to determine the facts and pronounce a sentence, or in this case vice versa.

When a society seeks to deprive someone of their liberty through a legal process, it is a reflection not only on their actions but our own laws and values. In weighing Ghailani on the scales of justice it is clear that there is more that hangs in the balance than just his fate.  But it is not clear what, if any, message we send to the world when in the name of combating terror we come close to cutting at the core of our own values.

In an age when an enemy deliberately and coldly picks at a defenseless target like Rosie Mwangi, it is easy to feed the climate of fear.  In an earlier time against a different enemy, Edward R. Murrow once said , “We proclaim ourselves, as indeed we are, the defenders of freedom, wherever it continues to exist in the world, but we cannot defend freedom abroad by deserting it at home.”

Will the US Seek the Death Penalty in First Trial of a Former Guantanamo Detainee?

Last month, Ahmed Khalfan Ghailani became the first Guantanamo Bay detainee to be brought to the United States for trial outside of the military commission system.  His trial is set to begin in September 2010 in a regular federal court. While this is hopeful news for other Guantanamo detainees awaiting their day in court, if not their release, it also means that there is a possibility that the US government will pursue the death penalty should Ghailani be convicted.

Ahmed Ghailani, born in Zanzibar, Tanzania, was arrested in Pakistan in 2004 and brought to Guantanamo in 2006 for his alleged involvement with the 1998 bombings of the US Embassies in Tanzania and Kenya.  For two years he was held in secret detention by the Central Intelligence Agency, after which he was transferred to solitary confinement at Guantanamo and ultimately charged by a military commission in 2008.  Those charges have been dropped and he will now being tried in federal court on counts which include conspiring with Osama Bin Laden and other members of al-Qaeda to kill Americans, and charges of murder for each of the victims of the US Embassy attacks. Mr. Ghailani has pled not-guilty to all charges, saying that he was not a member of al-Qaeda and did not know about the attacks ahead of time.

Mr. Ghailani’s case may be a test of President Obama’s promise to shut down Guantanamo Bay, and may set a precedent for how similar cases might proceed. As a result, there will be a great deal of international attention given to his trial. It is especially important for the United States to demonstrate a commitment to human rights at this critical juncture by not seeking the death penalty for Ahmed Ghailani.

Additionally, the United States must investigate the conditions surrounding Mr. Ghailani’s enforced disappearance.  Such an investigation is required by Article 2 of the International Covenant on Civil and Political Rights (ICCPR), to which the US is a party. Any information obtained under conditions that violate international standards must be declared inadmissible in court, and a thorough investigation of Mr. Ghailani’s treatment in secret detention and at Guantanamo will be essential to ensuring he is given a fair trial.

Please urge the United States government to treat Ahmed Ghailani with humanity and fairness>>