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Mystery Deepens in Ghailani Case|as Prisoner Awaits Sentencing Today

MANHATTAN (CN) - Ahmed Ghailani, convicted of only one of the 285 charges against him in connection to two U.S. Embassy bombings in east Africa, will be sentenced today for conspiring to destroy U.S. property, causing death. He was acquitted of hundreds of counts of murder and multiple conspiracy charges alleging his participation in bombings in Tanzania and Kenya that killed hundreds and injured thousands.

Ghailani's former lead defense attorney Steve Zissou, who withdrew from the case and is now commenting as an "observer," said in a telephone interview Monday that he anticipates U.S. District Judge Lewis Kaplan will impose a life sentence.

A newly filed court document reveals that defense attorneys wrote in a sealed sentencing memorandum that Ghailani's sentence should be reduced because of "voluntary" statements he made to the FBI.

In a letter to Judge Kaplan filed Monday, prosecutors seized on the word to point out that Ghailani always had maintained that his statements to the FBI, in which he acknowledged knowing beforehand that the U.S. Embassies would be attacked, and said that he was a bodyguard, cook and forger for al-Qaida, were coerced.

The statements were never put before the jury because they were made before Ghailani was read his rights or had an attorney, The New York Times reported.

Judge Kaplan recently wrote in an opinion that the government may have been the "victim" of a "lenient" jury that may have struck a bargain to reach a unanimous verdict.

"I was a little a little surprised that he called the government the 'victim' of the jury's deal, if you will," Zissou said in an interview. "I don't think there was a deal. I think there was a unanimous verdict, and the unanimous verdict was that the government hadn't proven 284 of the counts."

Although no one knows what persuaded jurors to reach so many acquittals, a Tanzanian court document made available to Courthouse News - never entered or referred to during the Ghailani trial - may offer insight into the key arguments used by the defense during the trial.

The 66-page document contains testimony before a Tanzanian court supporting two key arguments Ghailani's defense attorneys made in his U.S. trial: that the search of a house where physical evidence against Ghailani was found was mishandled and that Ghailani did not board a plane to Pakistan before the attacks.

Filed on Dec. 22, 2004, months after Ghailani's arrest, the document is a judgment from the High Court of Tanzania in Dar es Salaam exonerating Rashid Saleh Hamed, the man whom Ghailani's defense attorneys implied framed their client.

Hamed owned the house on Amani Street in Dar es Salaam where FBI investigators found the explosive residue, detonator and most other physical evidence tying Ghailani to the U.S. Embassy bombings.

"Let's face it, 15 Amani was the central, most important search of the case ... If you noticed, that was the last thing the jurors asked for," Zissou said.

Damaging the credibility of the physical evidence found there "leads to acquittals on 284 of 285 counts," Zissou added.

During defense summations, attorney Peter Quijano said that investigators found nothing the first two times they searched the compound, and the third search was more productive only because their methods broke "almost every single rule" of evidence collection.


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

Problems ranged from agents leaving the house unsecured, not wearing Tyvek suits, and bagging clothes together before being sent for chemical residue testing "with a total disregard to cross-contamination," Quijano said.

The judgment that acquitted Hamed shows several witnesses corroborating these arguments years earlier. It makes reference to the "mysterious" Ahmed "Khalifani" Ghailani and Ahmed "Mfupi," a Swahili nickname meaning "short one."

According to the Tanzanian document, the Amani Street housemaid Amina Rashid testified in Dar es Salaam, "The clothes were on the floor. [Investigators] did search them. The Police were in uniform. The Police did not put on gloves. I did not see them ... After the search, the clothes were lumped together ... When I left in the morning of the search, I left them like that." [Ellipses in original]

Another witness to the search told the local court that the police "were not dressed in special gear" and "did not put on hand gloves," the document says.

Hamed testified in Dar es Salaam that he entered the search to find his clothes "heaped in one place. They had been removed from the cupboard. Also the clothes of the other persons Ahmed [Ghailani] AND Kassim, were also heaped in one place," the document states (emphasis in original).

During the Ghailani trial, defense attorneys implied that Hamed may have planted evidence that was used against Ghailani between the second and third searches of the compound.

While the Amani Street compound was left unlocked in between searches, 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 before subsequent searches.

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

The Tanzanian record says that Hamed testified that he sorted out the clothes that the authorities tested for residue himself. "It is me who sorted them out. They were mixed up," Hamed said, according to his judgment of acquittal.

In deciding to exonerate Hamed, Tanzanian Judge E.M.E. Mushi wrote that the potential for cross-contamination made it "reckless" to use the evidence of explosive residue on Hamed's clothing "to make a firm finding that the accused was actively involved in the preparations of the bomb."

Defense attorney Quijano referred to Ghailani as a dupe more than 20 times during closing summations, as counted by Judge Kaplan in a decision.

Ultimately, the Tanzanian judge ruled that Hamed was duped by Ghailani.

"Evidence on record abundantly suggests and demonstrates that the accused [Hamed] was used by the very people he trusted, helped and considered as friends, or friends of his friends, to provide them with safe haven, whereby they could camouflage their sinister activities without creating suspicion," Mushi wrote.

But Ghailani's attorney's implied that it was the other way around.

A stipulation between Ghailani's attorneys and prosecutors shows that Hamed bought Ghailani's cell phone, which made suspicious calls a week before the attacks. The stipulation listed calls to suspected co-conspirators, a hotel where terrorists gathered, and parties in Egypt - the country where the al-Qaida front group that took responsibility for the attack was believed to have been based.

Ghailani's attorneys also claimed that Hamed prepared the false passports made in his name and likeness.

Quijano claimed that although flight records showed that Ghailani boarded a plane to Pakistan before the Embassy bombings, his client never boarded. He added that the government never called live witnesses that saw Ghailani on the flight with co-conspirators of the bombing.

During the terror trial in New York, Ghailani's cousin Ladha Hussein testified that Ghailani told him he wanted to go to Yemen to "look for livelihood."

At the Tanzanian trial, Hamed's stepfather, Kassim Juma Abdallah, said that Ghailani left for Yemen three days before the attack on Aug. 4, 1998.

The document shows no evidence that he witnessed Ghailani board a plane to Yemen or how he came about the information.

Although Ghailani's attorneys denied that their client left for Pakistan before the attacks, they did not say where he went before he was arrested in that country.

Jurors had no access to the Tanzanian documents, nor to documents that the government made available to the New York Times following the verdict.

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 said he did not realize that the items he helped purchase would destroy property or cause death until after he bought them.

He recalled "putting the pieces of the puzzle together" before the bombing, and regretted failing to step forward when he learned about the Tanzanian - but not American - deaths, the Times reported.

In a new report published on Sunday, the New York Times said an FBI document shows that he became Osama bin Laden's bodyguard and cook, and encountered Khalid Sheikh Mohammed, Zacarias Moussaoui and Sept. 11 hijackers.

The FBI said Ghailani told agents he looked at the co-conspirators as "heroes" and wanted to train to kill Jews, according to the Times.

Yet he also told interrogators in 2007 that he "had no choice" except to "assist bad people" because he was wanted by authorities and his pictures were everywhere, the Times reported.

The Times reported that the government never tried to enter any of these FBI statements into evidence because Ghailani was never read his rights or given a lawyer.

The defense maintained that such statements were coerced.

However, the government said in a letter to Kaplan filed today that by calling the statements "voluntary" in a sealed sentencing memorandum, the defense demonstrated otherwise.

"The defendant has now reversed course," the government said in the letter. "In the January 21 Sentencing letter, he contends that when he said the Defendant's interview was voluntary he did not mean it; rather, he meant only to 'mark the distinction' between the Defendant's interview and other statements ... this is extraordinary," the government said.

Ghailani was captured in Pakistan in 2004, and spent years in secret prisons before being transferred to Guantanamo Bay. He was the first former Guantanamo detainee to be tried in civilian court and is now being held at Manhattan Detention Center.

The Manhattan U.S. Attorney's press office declined to comment on either the documents or tomorrow's sentencing.

Zissou said he does not plan to attend Tuesday's sentencing, when he believes the maximum penalty will be imposed.

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