MANHATTAN (CN) – “You have to be willing to lose,” said a member of the federal team that prosecuted Timothy McVeigh and Terry Nichols for the Oklahoma City bombing. “The Ghailani verdict reminded me of the Nichols trial,” Aitan Goelman said of the verdict that cleared Ahmed Khalfan Ghailani of 284 of 285 charges in the 1998 bombings of U.S. Embassies in Africa. “It looked like the jurors were hanging. They did not convict him of the murder charges. They convicted [Nichols] of eight counts of manslaughter. It was weird, kind of incoherent. … Jury verdicts don’t have to be consistent. You can get weird results. To reach agreements on certain results, you end up compromising.”
Ghailani was convicted only of conspiring to destroy U.S. government buildings. He faces a mandatory sentence of 20 years to life in prison at his Jan. 25, 2011 sentencing.
Goelman is a partner in the Zuckerman Spaeder law firm. Then-Attorney General Janet Reno selected him as the youngest member of the team that prosecuted the suspects in the 1995 Oklahoma City bombing.
In both cases, defendants were accused of helping to destroy U.S. buildings with truck bombs and murdering hundreds of civilians. Both trials operated under the same “mechanics” and burden of proof, Goelman said.
McVeigh was convicted on all counts, but jurors acquitted Nichols of the murder charges and convicted him of manslaughter, conspiracy and using a weapon of mass destruction.
Ghailani’s attorneys vowed to appeal the single conviction, and they continue to maintain that their client is innocent.
Goelman said it was much easier for prosecutors to get evidence entered in a domestic terrorism trial, such as he prosecuted, than in a foreign one.
“Part of the evidence in Oklahoma City was a statement that Terry Nichols gave to the FBI,” Goelman said. “That statement, he was sitting in a police station in Kansas and talking. He was Mirandized. He didn’t have the complications of this being not just a criminal case but also a war.”
On the night of the Ghailani verdict, The New York Times reported that prosecutors in the Ghailani case never considered entering into evidence statements he made to the FBI and CIA, which allegedly “amounted to a confession.”
Ghailani allegedly told the FBI he did not know he was helping al-Qaida when he bought a truck, gas tanks and TNT used in the bombings. He told the FBI these were “routine commercial transactions” in Tanzania, and that he was told the TNT would be used for “mining,” according to the Times report.
Ghailani told the FBI he started “putting the pieces of the puzzle together” after the purchases but before the bombings, and said he regretted not stepping forward when he learned about the Tanzanian — but not American — dead, according to the Times report.
Ghailani’s defense attorneys contended the statements were “coerced, untrustworthy and inadmissible,” and the prosecution never tried to enter them, the newspaper reported.
Goelman said that prosecutors rarely turn to the CIA for evidence to be used in a trial.
“When the CIA is interviewing someone, they’re trying to get information. They’re not looking for admissibility,” Goelman said. “They’re looking for operational intelligence. They’re looking for something they can use. Their whole viewpoint isn’t geared toward getting proof to convict somebody in a court of law. The FBI’s is.
“When the initial ‘dirty’ confession is obtained [by the CIA], and they don’t think it will be admissible in court, sometimes they will send in a ‘clean team’ for the express purpose of getting statements that would be useable,” Goelman added.
He said that evidence can “potentially” be admissible this way, under the rationale that somebody whose “will was overborne” because of being “waterboarded in 2003” can confess voluntarily years later.
Pointing out that Ghailani originally was indicted before Sept. 11, 2001, Goelman said, “If he got picked up in 1999, there wouldn’t be a debate. There wouldn’t be military commissions going on at all, and there wouldn’t be a prison with terrorism suspects at Gitmo.”
U.S. District Judge Lewis Kaplan barred the government from calling Hussein Abebe, to testify that he sold Ghailani the TNT used in the bombing.
According to Kaplan’s 63-page ruling, the government learned about Abebe through “extremely harsh interrogation methods” used on Ghailani that may have “constituted torture,” and therefore inadmissible in either a civilian or military court.
“That may well be true,” Goelman said. “I think that’s something that’s gotten overlooked in the whole civilian-versus-military court. It’s true that rules in military courts are sometimes more relaxed than civilian courts. They also don’t sometimes accept evidence that’s obtained unconstitutionally. Whether [a military court] would have extended it as far as Judge Kaplan did is another matter.”
Working with foreign police organizations can also “complicate” U.S. justice, Goelman said.
Throughout the Ghailani trial, defense attorneys suggested that the Tanzanian National Police botched searches and intimidated witnesses.
“In these cases, it is impossible for the FBI to get on the ground first,” Goelman said. “The national police of those countries are going to be the first responders. They’re not going to have the same rooms, the same lab protocols. It can complicate things a lot.”
But Goelman said he is not convinced by arguments that after Ghailani’s near-acquittal, terrorism trials will no longer be held in civilian courts.
“There is unquestionably going to be a role for the civilian courts in these cases,” Goelman said.
He criticized what he called the “ad hoc” way the government decides who gets a civilian trial and who gets a military commission.
“In general, there is no policy, and the administration — and I’m not faulting them — has not articulated a consistent policy about who gets tried in civilian courts and who will get tried by military commission. … I think there has to be a rational, principled distinction on who gets sent where.”
As for what such a distinction would be, Goelman said, “There are a bunch of different places where you can draw the line. I’m not going to say which is best and which is more rational. You can say anyone who is arrested abroad goes to a military commission. If you’re arrested in Detroit, you go to federal civilian court.”
He also criticized the fact that, if Ghailani were acquitted on all counts, he still could be held indefinitely as an enemy combatant, as Judge Kaplan commented in his Abebe ruling.
“I don’t think that Judge Kaplan is wrong, legally. I think that idea that trying people in a civilian court is going to show the world what a fair system we have. I don’t think that should be the overriding factor. We should decide with our values and our precedent. To say that we’re going to keep them locked up even if they’re acquitted, I think that would backfire. That undermines the rationale.
“You have to be willing to lose.”
But Goelman refused to assign blame for the inconsistencies of the system on any particular administration.
“Well, I think it’s very easy to cast stones from the left at the Bush administration, or from the right at Obama. You can say the Obama administration is coddling terrorists, or you the Bush administration is violating constitutional rights. But the fact is, more than nine years after 9/11, we have not figured out a system for how to deal with these people. It’s not that the people at the Department of Justice aren’t working hard. It’s just a really thorny problem.”