Trial of Guantanamo Detainee, at Long Last, Tests 9/11 Legal Divide

Ahmed Khalfan Ghailani, whose federal criminal trial in New York begins in earnest Tuesday, represents a rare type of terror suspect -- and not only because he will become the first detainee from the terror-law prison at the Guantanamo Bay Naval Station in Cuba, to ever be subjected to a civilian trial in the United States. He spans the two worlds of the law, divided by the terror attacks on America. His alleged crime, participation in the African Embassy bombings of 1998, occurred three years before the Twin Towers fell. But because he was captured in Pakistan in 2004, he was subjected by U.S. officials to some of our nation's most controversial post-9/11 rules governing "enemy combatants."

Straddling the legal and moral divide generated by the events of Sept. 11, 2001, unsurprisingly, has resulted in contradictions and chaos both for Ghailani and the government that holds him. And those uncertainties remain, even apart from the normal uncertainty that exists anytime 12 jurors are given control of a defendant's fate following a criminal trial. Will the Ghailani trial mark the beginning of a successful string of civilian trials for terror suspects, including a federal trial of 9/11 mastermind Khalid Sheikh Mohammed? Or will United States v. Ghailani collapse under the weight of its tortuous past and thereby convince the government once and for all to come up with a military tribunal system that works?

Prosecutors believe that Ghailani bought the truck that was later loaded with explosives and blown up in Dar es Salaam, Tanzania, on Aug. 7, 1998. In 2001, federal prosecutors in Lower Manhattan successfully tried and convicted four other men associated with that attack -- all four were later sentenced to life in prison. By that time, Ghailani was an international fugitive, wanted (like Osama bin Laden) in connection with the embassy bombing case. But by the time Ghailani was captured in 2004, U.S. officials considered him instead a potential intelligence asset. His path evidently had crossed with those of some of the men implicated in the 9/11 plot and the Central Intelligence Agency wanted to know more.

So the CIA subjected Ghailani to "enhanced interrogation tactics -- what his lawyer calls torture -- either in a secret prison overseas or at the detention facility at Gitmo, where he was transferred in 2006. Whatever else the CIA got out of Ghailani, and whatever its value as accurate and reliable testimony, the terror detainee implicated himself in the embassy bombings. Then he evidently incriminated himself again, years later, when he was interrogated (without being tortured but also without a lawyer present) by FBI agents. But the results of neither of those fruitful interrogations will be used against Ghailani when he goes to trial, because criminal suspects may not be coerced into testifying against themselves. The trial judge in the case said so last week when he refused to allow federal prosecutors to introduce at the trial the testimony of a man who says he sold Ghailani explosives before the embassy bombings.

Federal prosecutors come into this long-awaited trial without some of their best evidence -- including that witness noted above whom prosecutors recently called a "giant" to their case. They come into the high-profile contest 12 memorable years after the crime was committed, nine years after the last trial in the case, and long after some of the witnesses who testified in 2001 have died. They come into it knowing that if they lose, and Ghailani is acquitted of the charges, the Justice Department may get fewer chances in the near future to prosecute terror suspects in federal courts. They prepare for opening statements later in the week knowing that there are some people, like Liz Cheney, who appear ready to pounce with glee upon the Obama administration should it fail to garner a conviction here.

Attorney General Eric Holder naturally prefers to look on the brighter side. Answering questions last week about the Ghailani case, he told reporters: "Look at history. ... There have been over 300 successful prosecutions of people who were involved in terrorist activities in Article III courts. They have been successfully prosecuted. Just yesterday, a man (Faisal Shahzad) who tried to explode a car in Times Square was given a life sentence. Courts have shown an ability to handle these kinds of cases over the years. I don't think there's any reason to doubt that we can successfully do that in the future." What Holder means, but isn't saying, is that federal prosecutors still have an enormous home-court advantage when they go after terror suspects in jury trials -- especially in New York City and especially when it comes to anyone connected in any way to Al Qaeda.

When potential jurors convene again Tuesday morning, they will be asked if they can put aside whatever they may know of Ghailani and judge him solely based upon the evidence that comes before them at trial. They will be asked to separate out from their consideration and deliberations what they may know about Ghailani's admissions to the CIA and FBI and what they've heard about the man who says he sold Ghailani explosives. Yet despite similar admonitions in the past, American juries have been notoriously quick to convict terror suspects in civilian courts since 9/11. Just ask Jose Padilla, the once-upon-a-time-dirty-bomb suspect, whose jury was barely out long enough for coffee before it came back to convict him in Miami in 2007. If anything, the government's case against Padilla was notably weaker than are the remnants of the government's case against Ghailani.

Call it a test. Call it a showdown. Call it a symbol of America's schizophrenic approach to its detainees. Call it a bridge to whatever future terror trials will have here. Just be glad after so long that a judge is about to finally call United States v. Ghailani on the docket.