MANHATTAN (CN) – More than three months after it was filed, the 2nd Circuit has unsealed the 143-page appeal of Ahmed Ghailani, who is serving a life sentence for his role in 2010 bombing of two U.S. Embassies.
The surprising jury verdict, which returned a one count conviction, acquitted Ghailani of 283 other counts related to the bombing.
An al-Qaida front group claimed responsibility for the 1998 attacks, which killed more than 200 people and injured thousands in Nairobi, Kenya, and Dar es Salaam, Tanzania.
Ghailani was the first Guantanamo detainee to be tried in a civilian court. He argued throughout trial that al-Qaida operatives manipulated him into participating in the attacks by paying him to help buy gas tanks and a truck without telling him their purpose.
Nevertheless, the 12-person jury convicted Ghailani of conspiracy to destroy U.S. property, causing death.
While it was the only charge that did not imply an intention to commit murder, it carried a maximum sentence of life imprisonment without the possibility of parole.
Though Ghailani’s attorneys pointed out that the jury opted for leniency, U.S. District Judge Lewis Kaplan threw the book him in sentencing on Jan. 25, 2011.
On Thursday, the 2nd Circuit unsealed a lengthy brief arguing for the reversal of the conviction or a reduction of the sentence.
The brief, dated Feb. 17, takes issue with Kaplan’s jury instruction to consider whether Ghailani engaged in “conscious avoidance,” by deliberately ignoring signs that he was participating in the bomb plots.
Ghailani’s lawyers say trial evidence supported the idea that their client could have known that a bomb plot existed, but not that he knew U.S. Embassies were targeted.
“As a poor youth from Zanzibar who had recently lost his father, Mr. Ghailani had come to Dar es Salaam to find work in the teeming, busy, outdoor market-places, scrabbling to earn money as a broker of all goods and services,” according to the brief authored by lead attorney Peter Quijano of Quijano & Ennis.
“There were a multitude of young men like him, competing to earn whatever money they could by arranging business deals between buyers and sellers of goods. A school drop-out, Ghailani had never traveled abroad and knew little about the outside world. To postulate that, somehow, he must have heard about the details of a Fatwa issued against the United States two years earlier by Osama bin Laden may be an interesting theory; there is nothing in the evidence to support that he did.”
During his summation at trial, Quijano called Ghailani “the Kariakoo kid,” named after the Tanzanian market district where the still-youthful-looking Ghailani grew up.
The New York Times reported on the night of the verdict that Ghailani had confessed to the FBI about his role in the bombings, but that he said he realized too late that the items he helped buy would destroy property or kill innocents.
Ghailani recalled “putting the pieces of the puzzle together” before the bombing, and regretted his failure to step forward when he learned about the Tanzanian – but not American – deaths, the Times reported.
Defense attorneys claimed that, by the time Ghailani grasped his role in the plot, he was with al-Qaida accomplices in Pakistan, and it was too late to turn back.
“Upon hearing news reports of the bombings, he felt devastated; but when he saw his friends cheering, he quickly realized that he was stranded in a strange land,” the brief states.
Pakistani and U.S. forces captured Ghailani in a joint operation in 2004, and he was held in CIA “black sites” and Guantanamo Bay until he was transferred to New York City to face trial five years later.
Claims of torture at CIA black sites eventually led the court to rule the alleged confession inadmissible at trial.
“The program used ‘sanctioned techniques’ devised to ‘psychologically dislocate the detainee, maximize his feelings of vulnerability and helplessness, and reduce his will to resist ‘as a means to obtain critical intelligence,” the defense brief states. “Most certainly, the means and methods used by this Program were, at a minimum, purposeful and oppressive. In a word, the application of these methods constituted torture.”
Six pages blacked out in redactions follow this paragraph.
“It appears that Mr. Ghailani was the first defendant who ever stood before a court of the United States and asked the Judge to take into account the pattern of torture inflicted upon him, by a government-sponsored program, when crafting a reasonable sentence,” the brief states. “Surely, there has rarely been a defendant at sentencing who suffered more extreme and severe conditions, ‘in some highly unique or disproportionate manner.’ … The systematically harsh treatment to which Mr. Ghailani was subjected merited a sentencing reduction, which the court did not afford.”
The court’s decision not to find that Ghailani’s speedy trial rights had been violated in CIA black sites and Guantanamo also had weighty consequences, Quijano argued.
“By electing to hold Mr. Ghailani for the purpose of subjecting him to harsh interrogation, instead of honoring the constitutional rights which attached upon his arrest, the government made a choice,” the brief states. “It chose to use him as valuable national intelligence source instead of granting his right to a speedy trial on the indictment against him.”
The brief continues in boldface text: “Despite the government’s demonstrated power to detain and interrogate Mr. Ghailani for information of significant value, the Executive Branch did not have the power to suspend the Constitution of the United States.”
Ghailani’s team also says that the sentence did not account for their client’s “enormous contribution to the national security of the United States.”
“Ahmed Khalfan Ghailani provided the United States with a wealth of intelligence which proved to be invaluable,” the brief states. “It is not hyperbole to suggest that his information saved countless lives, and affected the course of the future on a worldwide scale.”
Quijano & Ennis attorneys Nancy Ennis and Anna Sideris also signed the brief.
Prosecutors have until October to reply to the appeal, Lawfare reported.