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Saturday, December 9, 2023
Courthouse News Service
Saturday, December 9, 2023 | Back issues
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Defense Questions Every Bit|of Evidence in Ghailani Trial

MANHATTAN (CN) - Addressing a jury that had been steeped in references to Osama bin Laden and al-Qaida for more than a month of trial, defense attorney Peter Quijano cautioned jurors against letting the words "al-Qaida" inflame their passions and cloud their judgment. "To wrongly convict Ahmed Ghailani would not be justice, but yet another tragedy our country suffered at the hands of al-Qaida," Quijano said. "You must be strong and guard against a natural fear and desire for retribution for all al-Qaida has done to us and what they wish to do. ... To do so would allow al-Qaida to win."

The first Guantanamo detainee to face a civilian trial, Ahmed Khalfan Ghailani was arrested in Pakistan in 2004. He is accused of conspiring and participating in truck bombings of U.S. Embassies in Tanzania and Kenya that killed more than 200 people and injured thousands on Aug. 7, 1998.

"Ahmed did not know," Quijano said, opening his summation without an introduction. Quoting Scopes trial attorney Clarence Darrow, Quijano said that Ghailani's knowledge is central to his case because "conspiracy is the crime of thought."

"I have heard the government describe a trial. ... I had to wonder what trial they were describing," Quijano said, asking whether it was a "parallel trial" on some "parallel universe."

Prosecutor Harry Chernoff said in his summation that Ahmed Ghailani plotted with known al-Qaida members in multiple locations, bought the trucks and gas tanks used in the Embassy bombings and boarded a plane to Pakistan the day before "his fires" immolated innocents.

Chernoff said this series of events was supported by incriminating phone records, explosive residue on Ghailani's clothing, Ghailani's fingerprints found in bomb factories, a string of credible witnesses who "never recanted," and flight records showing him boarding and landing with senior al-Qaida operatives.

The "crown jewel" of the government's evidence against his client, Quijano said, was a detonator found in what one witness identified as Ghailani's locked armoire.

Quijano, to audible surprise in the courtroom, challenged the credibility of each of these arguments and pieces of evidence.

The detonator, he said, was discovered in a third search of a building on Amani Street in Dar es Salaam, after the first two searches broke "almost every single rule" of evidence collecting.

Quijano quipped that the first searches could serve as textbook examples at the FBI Academy in Quantico on "how not to conduct a search."

The house was left unsecured, agents did not wear Tyvek suits, and clothes were bagged together before being sent for chemical residue testing "with a total disregard to cross-contamination," Quijano said.

In contrast, FBI protocol was followed "to the letter" in searches of two other compounds on Ilala Street and at the Runda Estate, where explosive residue was found without a link to Ghailani, Quijano said.

While the Amani Street compound was left unlocked, a Suzuki Samurai belonging to Rashid Saleh Hamed was found outside, Quijano said.

Quijano said that stipulations show that Hamed had fled the Tanzanian National Police before the original search, then turned himself in after the second search took place the next day.

Before the FBI and its "wrecking crew" returned for a third and final search, Hamed had unfettered access to the armoire, Quijano said.


"Oh, Rashid bought Ahmed's phone," Quijano continued, adding, "This isn't wishful thinking ... No, this is a stipulation, an agreement between the two parties ... You wouldn't have known it [from the government's summation]."

The records of the cell phone in question showed that a week before the attacks calls were placed to suspected co-conspirators, to a hotel where terrorists gathered, and expensive long-distance minutes accrued to Egypt, the country where the al-Qaida front group that took responsibility for the attack was said to have headquarters.

Quijano claimed Rashid Hamed also prepared the false passports made in Ghailani's name and likeness.

Sharp intakes of breath were heard in the courtroom as surprised spectators saw Quijano project a statement on a screen declaring, "Ahmed was not on the plane."

The evidence that Ghailani had boarded and filled out landing documents is based solely on documents, not eyewitnesses, Quijano said.

In his redirect summation, prosecutor Michael Farbiarz said another al-Qaida operative was caught in Pakistan with a forged passport that had a fake photo. Farbiarz said this showed the Pakistani Customs officials would have caught someone else trying to use Ghailani's fake passport.

Quijano insisted that the government would have called a live witness if Ghailani had traveled on that flight.

In 1998, bombings of the U.S. Embassies in East Africa were the "largest attack to date al-Qaida unleashed against us," and the FBI sent its "largest overseas commitment" for evidence gathering, Quijano said.

"If Ahmed had been on the plane, you would have heard at least one live witness [confirm that]," Quijano said. He added that no Customs agent, flight attendant or passenger witness had been called.

"Call [Ghailani] 'fall guy.' Call him 'dupe.' Call him 'set up, like a bowling pin' in the immortal words of Jerry Garcia. But don't call him guilty," Quijano said.

Dismissing prosecution arguments that al-Qaida was too cautious to involve a dupe in their plots, Quijano suggested that a string of government witnesses unwittingly contributed to the Embassy bombings.

Witness testimony showed that of the conspirators, Sheikh Ahmed Swedan used his own younger brother, Salim Ahmed Salim Swedan, as a dupe, Quijano said.

Farbiarz countered that the government witnesses had been used in only one transaction, unlike Ghailani.

Quijano also argued that the prosecutors left out important context about the Dar es Salaam neighborhood of Kariakoo, where Ghailani was said to have bought gas tanks and a truck.

Quijano described Kariakoo as the "heart and soul of commerce, where everything can be bought" and "commerce seemed like a religion."

In brokering these transactions, Ghailani was only "buying commercial items in a commercial temple," Quijano said.

Referring to his client repeatedly as a "Kariakoo kid," Quijano said that Ghailani was being "enterprising" when he bought a truck for his friend Sheik Ahmed Swedan, a suspected al-Qaida recruit who also had a legitimate trucking business, and purchased gas tanks, which were commonly used for welding.

One witness who sold the gas tanks, Flenan Abel Shayo, said that a man named "Alim" paid for gas tanks out of a pouch around his waist.

Quijano said that when hearing this testimony he thought, "They're not that desperate. ... Are they going to say Ahmed was using an alias?"

According to Quijano, Shayo had known Ghailani by his real name for 4 years, and Shayo acknowledged it under cross-examination.

Quijano said that unlike seasoned al-Qaida operatives, Ghailani never used an alias during transactions.

"It seemed like everyone in Kariakoo knew Ahmed," Quijano said.

Quijano then shifted focus to the Tanzanian National Police, whose officers accompanied prosecution witnesses on flights to and at hotels in New York City.

Ghailani's cousin testified that a TNP officer yelled at him and confiscated his phone after he told him that he planned to meet with defense attorneys before taking the stand.

In several cross-examinations, Quijano grilled witnesses about whether they changed their stories between the time of their original FBI interviews and when they took the stand 12 years later.

On Tuesday, Quijano asked whether the TNP officials, who sometimes were translators in interrogations, were "a middleman in a conversation we're not seeing?"

Referring to the prosecutors, Quijano said, "They don't want you to think about context. ... They want to say 'al-Qaida this, al-Qaida that.'"

Somewhat later, pausing before a hushed courtroom, Quijano repeated, "Al-Qaida. Al-Qaida," allowing the name to linger before asking, "What flood of emotions comes over us ... the moment we hear that al-Qaida even exists?

"You would be less than human not to want to lash out against the monster that is al-Qaida," he said.

Still, he cautioned, "Al-Qaida cannot be used to inflame passions, and desire for retribution for revenge at the expense of Ghailani. ... You must be strong and guard against a natural fear and desire for retribution for all al-Qaida has done to us and what they wish to do ... To do so would allow al-Qaida to win."

According to a court document by presiding U.S. District Judge Lewis Kaplan, Ghailani was sent to Guantanamo in 2004 and subjected to "extremely harsh interrogation methods" that may have constituted torture.

Now, about 6 years later, a jury that will soon deliberate his case will not know about Ghailani's treatment in the CIA's hands as they decide whether he is a "mass murderer," as the government contends, or an "innocent boy," as Quijano maintains.

If convicted, he faces life imprisonment. Judge Kaplan noted he may face indefinite detention as an enemy combatant even if he is acquitted.

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