MANHATTAN (CN) - Defense attorneys for Ahmed Khalfan Ghailani, whom a federal jury acquitted of 284 of 285 terrorism-related charges in November, are fighting his single conviction by appealing to the Constitution, in a 39-page motion seeking acquittal or new trial. Ghailani, the first Guantanamo detainee to be tried in a civilian court, was accused of helping to plan and execute the bombings of U.S. Embassies in Kenya and Tanzania, which killed 224 people and injured thousands on Aug. 7, 1998.
In the motion, defense attorneys say that jurors acquitted Ghailani of every conspiracy and murder charge related to the bombings, and that the one guilty count - conspiracy to destroy U.S. property - referred broadly to bombings of U.S. facilities "anywhere in the world."
The single guilty count carries a potential life sentence. Ghailani's attorneys find that inconsistent with the numerous acquittals for crimes stemming from the same events.
Civil libertarian Karen Greenberg, author of "The Least Worst Place: Guantanamo's First 100 Days," says the press has paid less attention to more powerful arguments in the defense's appeal motion that are more likely to move U.S. District Judge Lewis Kaplan.
In the second half of the 39-page motion, the attorneys say Ghailani's constitutional rights were violated twice during his trial, once by a government prosecutor and once by the judge.
Michael Bachrach, lead author of the motion seeking acquittal, claimed that Judge Lewis Kaplan erred in giving jurors an instruction that lowered the government's burden of proof. And, Bachrach wrote, Assistant U.S. Attorney Michael Farbiarz engaged in "foul play" by making a "disingenuous" argument during summation that amounted to "false evidence."
"That's going to bother Kaplan," said Greenberg, the executive director of NYU's Center on Law and Security. "He's a thinker. He's not just end-oriented. His job, the way he understands it, is to understand these issues the best he can, to really get inside of them."
Before the trial began, Judge Kaplan barred the government from calling Hussein Abebe as a witness, writing in a 63-page ruling that the government learned about him through Ghailani's alleged torture.
This made Abebe inadmissible under the Fifth Amendment protection against self-incrimination, Kaplan ruled, writing that "we must adhere to the basic principles that govern our nation not only when it is convenient to do so, but when perceived expediency tempts some to pursue a different course."
"Kaplan is really wed to constitutional issues," Greenberg said. She added, "I felt that what this document did from beginning to end is to invite him to consider truly compelling legal arguments."
Greenberg said the strongest argument in the motion questioned Kaplan's decision to instruct the jury on concept of "conscious avoidance:" that deliberately avoiding knowledge about an illegal conspiracy is tantamount to joining one.
The defense claims that Kaplan should not have given an instruction on the concept at all, and that the jury clearly considered the concept before deciding Ghailani's fate.
The day before the verdict was announced, jurors asked Kaplan to explain an aspect of the theory of conscious avoidance. The defense agrees that the judge's instruction was "completely accurate" as a "statement of law."
But it says the instruction was unwarranted because there would have been no "red flags" suggesting that Ghailani knew - or avoiding knowing of - any conspiracy "had the Embassies never been bombed."
