NY judge questions Guantanamo detainee's defense

A judge all but rejected efforts Thursday by lawyers for the first Guantanamo detainee to be tried in a civilian court to toss out his conviction in the deadly 1998 bombing of two U.S. embassies in Africa.

A judge all but rejected efforts Thursday by lawyers for the first Guantanamo detainee to be tried in a civilian court to toss out his conviction in the deadly 1998 bombing of two U.S. embassies in Africa.

U.S. District Judge Lewis A. Kaplan said he'll rule Friday or Monday on the request. Ahmed Ghailani's lawyers asked that he reject Ghailani's conviction on a single conspiracy count on the grounds that it was inconsistent with the jury's decision to acquit him on more than 280 other counts.

The attacks killed 224 people, including 12 Americans.

But the judge repeatedly rejected most of the reasoning offered by defense lawyer Michael Bachrach during oral arguments.

"I don't understand you at all," Kaplan said. "I'm just telling you, I hear the notes but I don't get the tune at all."

At another point, he asked whether it was possible that "any inconsistency there might be in this verdict, if there is any, is the acquittals, not the conviction."

Kaplan is scheduled to sentence Ghailani on Tuesday for his fall conviction for conspiring to destroy government buildings. Because the jury also found that the bombings resulted in deaths, Ghailani can be sentenced to life in prison.

Ghailani's trial, at a lower Manhattan courthouse, had been viewed as a test for President Barack Obama's aim of putting other terror detainees — including self-professed Sept. 11 mastermind Khalid Sheik Mohammed and four other terrorism suspects held at Guantanamo — on trial on U.S. soil.

Obama still says he wants to prosecute terrorists in both military commissions and criminal courts, but Congress has tied his hands at least in the short term. Lawmakers have prohibited the Pentagon from transferring detainees to the U.S., even to stand trial.

At Ghailani's trial, his lawyers argued that their client was a dupe who did not know that explosives and a truck that he bought would be used to attack the embassies.

During Thursday's arguments, Kaplan said he believed it was reasonable for jurors to conclude Ghailani was willingly part of the conspiracy even if they did not agree that prosecutors had proven that he knowingly participated in various facets of the attacks.

The judge noted that trial evidence showed that the bombing followed Osama bin Laden's order to kill Americans wherever they were found and that Ghailani lived with an al-Qaida member in the weeks leading up to the bombings.

"The jury could have quite rationally concluded Ghailani was a party to the conspiracy ... and, as a consequence of his activities related to the conspiracy, people were killed," Kaplan said.

The judge also said he saw nothing wrong with an argument by prosecutors that Ghailani could not have been a dupe because al-Qaida would not have let someone get so involved in a bombing plot who might tell law enforcement authorities about it, especially after seeing how many people were killed.

Kaplan suggested it might be a mistake to think 12 jurors were close to a full acquittal of Ghailani.

"It may be that what you had here was 11 for conviction, one absolutely adamant that there would be no conviction and a bargain at the end ... that there would be a guilty verdict on one count so everybody could go home. Now that's a plausible interpretation of what happened," the judge said. The jurors were anonymous and have not spoken publicly.

After the hearing, which lasted less than an hour, Ghailani shook hands with his lawyers and hugged one of them before he was led out of court by U.S. marshals.

Ghailani was arrested in 2004 in Pakistan and transferred to a secret CIA-run camp overseas, where his lawyers said he was subjected to harsh interrogation. Prior to trial, the judge excluded the government's key witness — a man who sold Ghailani explosives — on the grounds that the government only learned about him as a result of the interrogation.

In 2006, Ghailani was moved to Guantanamo Bay, where he remained until he was brought to Manhattan for trial in 2009.

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