In a move that seems to open up a route out of Guantánamo for prisoners accused of having an active involvement with international terrorism that does not involve reviving the much-criticized system of trials by military commission, the Justice Department announced today that Ahmed Khalfan Ghailani, a Tanzanian, one of 14 "high-value detainees" transferred to Guantánamo from a secret CIA prison in September 2006, will be put on trial in a federal court in New York, following a thorough review of his case that was conducted by the interagency Guantánamo Review Task Force established by Barack Obama on his second day in office.
Ghailani, who is charged with "assist[ing] in the purchase of the Nissan truck as well as the oxygen and acetylene tanks that were used in the bombing of the U.S. embassy in Tanzania," and who is "further alleged to have participated in loading boxes of TNT, cylinder tanks, batteries, detonators, fertilizer, and sand bags into the back of the truck in the weeks immediately before the bombing," admitted at a hearing in Guantánamo in 2007 that he "bought the TNT used in the bombing, purchased a cell phone used by another person involved in the attack, and was present when a third person bought a truck used in the attack," but apologized for his involvement, saying that he did not know that the supplies would be used to attack the embassy.
The decision to charge Ghailani in a federal court effectively repudiates his last five years of detention, since he was seized in Pakistan in 2004, as he was first indicted in New York in 1998 for "conspiring with Osama bin Laden and other members of al-Qaeda to kill Americans overseas and for his role in the Aug. 7, 1998, bombing of the U.S. embassy in Dar es Salaam, Tanzania, which killed at least 11 people and caused injuries to at least 85 people," and, as a result of superseding indictments, is now accused of 286 different charges, including participating in an al-Qaeda conspiracy "to murder, bomb, and maim U.S. civilians anywhere in the world."
The decision does not, however, address some uncomfortable facts about Ghailani’s last five years in U.S. custody. As I wrote in an article when he was put forward for trial by military commission at Guantánamo in March 2008 (before the trials were suspended by Barack Obama, on his first day in office):
"Ghailani did not allege, during his military tribunal, that he was tortured (unlike Khalid Sheikh Mohammed, Abu Zubaydah, and Abdul Rahim al-Nashiri, whose torture by waterboarding was admitted by CIA director Michael Hayden), but during my research for my book The Guantánamo Files, I discovered a piece of information that indicated that, whether under duress, or by some other method, he had made a false allegation against one of the prisoners at Guantánamo.
"One of the more disturbing aspects of the gathering of evidence used against the Guantánamo prisoners is the accumulation of allegations from [their tribunals and review boards, in which] an enormous number of claims are attributed to ‘a senior al-Qaeda operative’ or ‘a senior al-Qaeda lieutenant.’ With no names given, it has been impossible to establish the source of these claims, although they are frequently so at odds with a previously established chronology of the prisoner’s actions – placing them at training camps and in guest houses when they were not even in Afghanistan, for example – that it’s readily apparent that many, if not most of these allegations were produced under duress, probably when supposed ‘high-value detainees’ were being shown the ‘family album’ of prisoners that was used from the earliest days of the U.S.-run prisons in Afghanistan, in late December 2001.
"On one occasion only, I discovered that one of these ‘al-Qaeda’ sources had been named, and was none other than Ahmed Khalfan Ghailani. As I explained in Chapter 20 of The Guantánamo Files, ‘The Yemeni Mohammed al-Hanashi … admitted to his tribunal in 2004 that he arrived in Afghanistan eight or nine months before 9/11, and that he fought with the Taliban. By the time of his review in 2005, however, new allegations had been added, including the claim that Ahmed Khalfan Ghailani ‘identified him as having been at the al-Farouq camp [the main training camp for Arabs, associated in the years before 9/11 with Osama bin Laden] in 1998-99 prior to moving on to the front lines in Kabul.’ In other words, although al-Hanashi admitted traveling to Afghanistan to serve as a foot soldier for the Taliban, a man who was held in extremely dubious circumstances in another part of the world was shown his photo and came up with a story about seeing him two or three years before his arrival in Afghanistan, which would, henceforth, be regarded as evidence against him."
What’s particularly ironic about Ghailani’s case, however, is that while he was held in secret prisons and, presumably, subjected to all manner of "enhanced interrogation techniques" to persuade him to make dubious confessions about other prisoners, four of his alleged co-conspirators were put through the federal court system in 2001, after a process of interrogation that did not involve the use of secret prisons and torture, and, after being convicted in May 2001, were sentenced to life without parole in October 2001, just six weeks after the 9/11 attacks.
In another ironic twist, it is presumed that the African embassy bombings were actually perpetrated by al-Qaeda as revenge for U.S. involvement in one of several dozen examples of the pre-9/11 use of "rendition" under the Clinton administration, after four members of Egyptian Islamic Jihad, the terrorist group of al-Qaeda’ s deputy leader, Ayman al-Zawahiri, were seized in Albania and flown to Egypt, where one of the men reported that he was tortured and two others were hanged. On Aug. 5, 1998, al-Zawahiri threatened retaliation against the U.S. "in a language they will understand," warning that America’s "message has been received and that the response, which we hope they will read carefully, is being prepared." The bombings took place two days later.
While I hope that Ahmed Khalfan Ghailani’s trial in a federal court proceeds smoothly and that justice will be done – and will be seen to be done – if he was indeed involved in the dreadful attacks of August 1998, the sad truth remains that the ghost of rendition and torture, and of a long, dirty covert war between international terrorists and the CIA, which expanded after 9/11 to affect the whole of the Bush administration’s "War on Terror," has cast a cloud over his case that will ensure that no possible outcome will represent a shining day for justice.
