RUTHFULLY YOURS

The trial of Ahmed Ghailani, the al Qaeda terrorist accused of bombing the American embassies in Tanzania and Kenya in 1998, has gotten started. And as one would expect, both sides have adjusted their presentations to the civilian justice system rules that, as I’ve been noting in recent[2] columns[3] (including today’s[4]), have resulted in the suppression of key evidence against the defendant.

I imagine this must infuriate people — it still infuriates me after 25 years in the biz. Here you have Ghailani: he has confessed to the bombings; he continued to be a top al Qaeda operative (even a bin Laden bodyguard) for years afterwards, until his capture in 2004; and he not only bought the TNT used in Dar es Salaam, but identified whom he got it from — a witness who corroborates his confession and is prepared to testify. Yet, because of a court ruling and DOJ concerns about opening up the interrogation can of worms, defense lawyers know the jury will learn none of this information. So what happens? Ghailani’s lawyer opens the case by telling jurors that, in 1998, his client was a babe in the woods who was never a member of al Qaeda, never “agreed or signed on to” bin Laden’s edicts to kill Americans; and, in his naivete, was duped by a friend into buying a truck he had no idea would be used by terrorists to bomb an embassy. The lawyer looked the jury in the eye and said, Ghailani “is not simply presumed innocent. He is innocent.”

Meantime, the government seems to be subtly shifting its emphasis from the overwhelming evidence of Ghailani’s role in bombing the embassy in Tanzania — which has gotten less overwhelming thanks to the judge’s barring of the TNT witness — to the structure, methods and purposes of al Qaeda (to be explained by a former member who quit the terror network three years before the bombing). This makes sense: If the jury becomes convinced that Ghailani was a member of al Qaeda and was acting consistently with al Qaeda’s procedures, (a) it will be easier to find him guilty of the bombings even if the evidence is now less compelling, and (b) jurors could find him guilty of the bombings even if they weren’t convinced of his direct involvement. On the latter, a doctrine of conspiracy law makes all conspirators liable for the foreseeable acts carried out by the conspiracy.

You can understand why prosecutors decided not to appeal the judge’s ruling. Even without the TNT, they say they can prove[5] that Ghailani purchased the truck used for the bombing (in cash); bought 20 acetylene tanks that were later used to intensify the explosion; fled to Pakistan on a fake passport and a one-way ticket with other al Qaeda operatives the day before the bombing; lied to family and friends about where he was going; and is connected to a locked cabinet later found to contain a detonator and clothing covered with bomb residue.

None of that is as hard to explain away as TNT, but it’s pretty strong. If the proof comes in as promised – and I hope and expect it will — I’m betting jurors will be pretty steamed at the way defense lawyers portrayed Ghailani.

Several readers have asked about the death penalty. This is not a capital case. I think it should have been, but the Justice Department opted not to seek the death penalty. In 2001, the first time the embassy bombing case was tried, two of the four defendants were capital defendants, but jurors voted not to impose death. (All four defendants got life sentences.) I do not know whether what happened at the prior trial — nine years ago and before the 9/11 attacks — caused DOJ not to seek the death penalty for Ghailani.