A federal jury in New York is deliberating in a landmark trial of the first former Guantánamo detainee to be tried in the civilian court system. On Monday, the jury appeared deadlocked after a juror asked to be excused, saying she was being attacked for her conclusions about the defendant, Ahmed Khalfan Ghailani. A Tanzanian national, Ghailani faces conspiracy and murder charges related to the 1998 U.S. embassy bombings in Kenya and Tanzania that killed 224 people and wounded thousands. We speak to Karen Greenberg of the Center on Law and Security at the New York University Law School. [includes rush transcript]
AMY GOODMAN: A federal jury in New York is deliberating in a landmark trial of the first former Guantánamo detainee to be tried in civilian court. On Monday, the jury appeared deadlocked after a juror asked to be excused, saying she was being attacked for her conclusions about the defendant, Ahmed Khalfan Ghailani. A Tanzanian national, Ghailani faces conspiracy and murder charges related to the 1998 U.S. embassy bombings in Kenya and Tanzania that killed 224 people and wounded thousands. It’s unclear whether the dissenting juror was alone in wanting to acquit or to convict Ghailani.
Prosecutors described him as a mass murderer with, quote, "the blood of hundreds on his hands." But the defense claims Ghailani was just a pawn who was unwittingly exploited by members of al-Qaeda. If convicted, Ghailani faces a mandatory life prison sentence. He was captured in Pakistan in 2004, taken to a secret overseas CIA jail, then moved to Guantánamo in 2006. At the start of the trial, the presiding federal judge barred the government from calling in their star witness, ruling that information about the witness had been revealed by Ghailani while he was being tortured in a secret CIA prison.
For more on this case and the significance of holding this trial in federal court here in New York, I’m joined by Karen Greenberg. She runs the Center on Law and Security at the New York University Law School and is author of The Least Worst Place: Guantanamo’s First 100 Days. She’s been closely following the Ghailani trial since it began last month and has written about it for Mother Jones magazine.
Welcome to Democracy Now!
KAREN GREENBERG: Thank you.
AMY GOODMAN: So, first tell us — give us more background on this trial and what has been presented to the jury so far.
KAREN GREENBERG: First thing you have to understand, I think, about this trial is that it was the test trial, the test case, to see whether we could bring other Guantánamo detainees, high-value detainees like Khalid Sheikh Mohammed, to the federal courts and perhaps to the Southern District of New York. So, it’s been — it’s very closely watched, I think, by people in Washington who have to make this decision. So that’s the context in which it’s taking place.
It was considered a good case because this court, Southern District, has tried embassy bombings suspects before and convicted them, in 2001. So, it seemed like a case that would be easy, would get to conviction. But now, you know, the jury is doing what it does: it deliberates. And I think with this particular juror, we can’t guess too much what it’s about, because they have 286 counts to decide. The first five are conspiracy charges. They have to get through those counts first. And you have to expect some sort of debate, if they’re going to deliberate seriously. And they are deliberating seriously, which tells you a lot about the progress we may have made in terrorism trials.
AMY GOODMAN: Do they know he’s from Guantánamo? Do they know that he was tortured?
KAREN GREENBERG: Probably not. I mean, it’s their — they are supposed to not read anything about the case. They are vetted ahead of time about, you know, how they feel and what they know. This was all in pretrial. All of the torture discussion — his being tortured in a black site and whether or not he could stand trial because of it and what the evidentiary standards would be because of it — was all vetted prior to the trial starting. They may not know that. They may not know he’s from Guantánamo. They may have a sense of it. It’s not part of what’s come up in court.
AMY GOODMAN: What number juror is having problems right now?
KAREN GREENBERG: Seat number 12.
AMY GOODMAN: And who is she? What do you know about her? And what has she said?
KAREN GREENBERG: We don’t know that much. There’s been a little bit of reporting. We know that the report came back saying "I feel" —- she felt that she was attacked. But you never know why -—
AMY GOODMAN: When you say that, she what? Wrote a note to the judge?
KAREN GREENBERG: She wrote a note to the judge early on in the deliberations, which is now, you know, a couple days ago, saying that she wanted to be excused, that she wasn’t going to change her mind, and that — we don’t know what her mind was, but that she wasn’t going to change her mind, and that she’d like to be excused or replaced. And I think the judge thought, well, you know, this is a little early in the process for this, and to take somebody off who has, you know, a separate opinion is not really what you want to do on a jury. You want 12 people to talk among themselves and figure it out. That’s the point of it. And so, we don’t know.
They could be, you know, in the midst of these deliberations. They’ve asked for a number of things over the course of their deliberations: substantial amounts of the transcript, stipulations from the government about what happened, about various searches that took place, that were central to both defense and prosecutorial narratives. They have a lot of material to go through, and it seems like they’re taking it seriously. And so, she’s an indication of that. And I think that’s about as much as we can read into it.
AMY GOODMAN: Karen Greenberg, tell us more about who Ghailani is, what you know about him, why the chief prosecution witness is not going to be allowed to testify.
KAREN GREENBERG: The chief prosecution witness was not allowed to testify because there was no evidence presented or argued in any way that he was found other than through the torture of Ahmed Khalfan Ghailani, who is the defendant. And the judge, having ruled that you could have this trial despite the fact that torture was alleged and for the purpose of this trial accepted as something that had happened, he made the distinction between being able to hold the trial and being able to introduce evidence that seemed to have come from torture, and that there was no contradictory evidence otherwise. And so, he didn’t let it in, which was a groundbreaking decision, if you think about it. I mean, we have — if we’re going have a moment of accountability for torture, which we haven’t had, this was one. If you torture someone, that evidence does not get into court. So this was — you know for those of us, the few of us, paying attention, it was a milestone.
AMY GOODMAN: Now tell us more about Ghailani.
KAREN GREENBERG: Ghailani was a young man in his early twenties in 1998, when the crime took place. He lived in Dar es Salaam. And he was involved in a number of the transactions that eventually led — this is what is alleged — to the attack on the embassies. It’s being portrayed as a double attack, both in Kenya and in Tanzania, because, you know, the bombings happened on the same day within moments of one another. And they’re presenting it, as they did the original embassy bombings cases, in the context of a larger connection to al-Qaeda. But that was never really argued — you know, his direct connection to al-Qaeda.
What’s at issue here in this case is, did he, you know, help purchase the truck? Did he purchase the things that were used as the explosive knowingly or unknowingly? Was he just a young boy who helped some older men, who he respected, who were businessmen, to do these things not knowing what they were for, or did he not know? And we know very little about him. Remember that the burden is on the prosecution. Defense does not have to present a case. They virtually didn’t. They didn’t call a witness, and they didn’t put him on the stand. So we know — we know this much about him, and no more. We know that a ticket was bought in his name on the same day to leave the country, that some of the others who have been convicted left on, or who we later found out to be terrorists and were later killed. We don’t — the defense has argued that we don’t know that he got on the plane. And there were other people on the plane who had forged documents. So this is the nature of the case.
And he, himself, if you’d like to know, has been mostly absent from the case. I mean, he sat in the courtroom. But if you counted the times his name actually came up in the trial, you would find that it was miniscule compared to the, you know, amount of other people and words and context. And so he — it was sort of interesting to watch a trial about somebody who was barely mentioned.
AMY GOODMAN: It’s interesting also there was such an outcry over a Guantánamo prisoner being tried in a New York court, and now that it’s actually happening, there’s almost no attention at all.
KAREN GREENBERG: There’s no attention. There’s the press that comes every day, because that’s what they’re doing. And then there’s the observer gallery, which is literally empty, other than myself and one or two others each day. There were witness observers brought in for the trial from Kenya and Tanzania, as there were in the first trial. But not only has there been no attention, there’s been no sense of danger or — it’s actually a rather collegial atmosphere inside the courtroom.
AMY GOODMAN: I wanted to switch to a different issue, which is President Bush, George W. Bush. His memoir has come out. I want to play a clip from NBC Today Show’s Matt Lauer, the exclusive he did with George W. Bush.
GEORGE W. BUSH: Let’s talk about waterboarding.
MATT LAUER: OK.
GEORGE W. BUSH: We believe America is going to be attacked again. There’s all kinds of intelligence coming in. And one of the high-valued al-Qaeda operatives was Khalid Sheikh Mohammed, the chief operating officer of al-Qaeda, ordered the attack on 9/11. And they say he’s got information. I said, "Find out what he knows." And so, I said to our team, "Are the techniques legal?" And a legal team says, "Yes, they are." And I said, "Use them."
MATT LAUER: Why is waterboarding legal, in your opinion?
GEORGE W. BUSH: Because the lawyers said it was legal, said it did not fall within the Anti-Torture Act. I’m not a lawyer. And — but you got to trust the judgment of people around you. And I do.
MATT LAUER: You say it’s legal, and the lawyers told me.
GEORGE W. BUSH: Yeah.
MATT LAUER: Critics say that you got the Justice Department to give you the legal guidance and the legal memos that you wanted.
GEORGE W. BUSH: Well —
MATT LAUER: Tom Kean, who’s the former Republican co-chair of the 9/11 Commission, said they got legal opinions they wanted from their own people.
GEORGE W. BUSH: Oh, he obviously doesn’t know. I hope Mr. Kean reads the book. That’s why I’ve written the book. He can — he can draw whatever conclusion they want. But I will tell you this: using those techniques saved lives. My job was to protect America. And I did. First of all, we used this technique on three people. Captured a lot of people and used it on three. We gained valuable information to protect the country, and it was the right thing to do, as far as I’m concerned.
MATT LAUER: So, if it’s legal, President Bush, then if an American is taken into custody in a foreign country, not necessarily a uniformed American —
GEORGE W. BUSH: Look, I’m not going to debate the issue, Matt. I really —
MATT LAUER: I’m just asking. Would it be OK for a foreign country to waterboard an American citizen?
GEORGE W. BUSH: It’s — all I ask is that people read the book. And they can reach the same conclusion if they would have made the same decision I made or not.
MATT LAUER: You’d make the same decision again today?
GEORGE W. BUSH: Yeah, I would.
AMY GOODMAN: George W. Bush, former president of the United States. Karen Greenberg, your response?
KAREN GREENBERG: My response is twofold. One, continual disappointment that we haven’t learned much in understanding what actually keeps us safe in the world. And two, that this can be seen, and is being seen by many, as a way of excusing others. In other words, he gave the command, he did it, he was in charge. And so, what does that mean about everybody else? So those are my two basic responses, I mean.
AMY GOODMAN: And saying he would do it again?
KAREN GREENBERG: And saying he would do it again, I mean, tremendous disappointment. This did not prove to be a winning strategy.
AMY GOODMAN: And the UN special rapporteur on torture, Juan Ernesto Méndez, saying the United States has a duty to investigate every act of torture. He said, "Unfortunately, we haven’t seen much in the way of accountability"?
KAREN GREENBERG: We should investigate. We should investigate, for sure.
AMY GOODMAN: And finally, President Obama saying in one of his first acts as president he would close Guantánamo, and now Guantánamo looks like will be open for the foreseeable future.
KAREN GREENBERG: I think it will. And I think the reason is that he’s made the political calculation that, actually, when it comes right down to it, not enough people care.
AMY GOODMAN: Are people being tortured at Guantánamo today?
KAREN GREENBERG: I don’t think so. I don’t think so. But we don’t know, I guess. But I don’t think so.
AMY GOODMAN: Karen Greenberg runs the Center on Law and Security at NYU Law School, author of The Least Worst Place: Guantánamo’s First 100 Days.