Embassy bombing trial to begin Tuesday

The embassy bombing trial of accused al-Qaida member Ahmed Khalfan Ghailani is set to begin Tuesday morning in federal court in Manhattan amid renewed questions about the Obama administration's push for civilian trials of terror detainees.

Prosecutors announced Sunday that they won't appeal a ruling last week by U.S. District Judge Lewis Kaplan barring a key witness who the government learned of during coercive CIA questioning of Ghailani, the only former CIA and Guantánamo detainee brought to a civilian court for trial.

The decision not to appeal paved the way for opening statements Tuesday, but another aspect of Kaplan's ruling - in which he noted Ghailani "probably" will remain in military detention even if acquitted - highlighted doubts about the point of a trial expected to last 16 weeks.

"If the person is already incapacitated and can continue to be incapacitated without a trial, the question is what the value of a trial is," said Brookings Institution scholar Benjamin Wittes, a law and national security expert.

Ghailani is charged with conspiracy and 224 counts of murder for his alleged role in the 1998 bombing of two U.S. embassies in Africa. He became an aide to Osama bin Laden, officials allege, until his capture in 2004. He was held and questioned at CIA "black sites" and Guantánamo until 2009.

Prosecutors had hoped to call Hussein Abebe, a Tanzanian who sold Ghailani explosives used in the bombings, as their star witness. But Kaplan said the testimony would have been the fruit of an unconstitutional coerced interrogation. On Sunday, prosecutors said they thought they could still win the case without Abebe.

In ruling out the witness last week, Kaplan said of Ghailani: "His status as an 'enemy combatant' probably would permit his detention as something akin to a prisoner of war until hostilities between the U.S. and al-Qaida and the Taliban end, even if he were found not guilty."

That heads-we-win, tails-you-lose assertion echoed claims made last year by Attorney Gen. Eric Holder and others during the debate over transferring alleged Sept. 11 mastermind Khalid Sheikh Mohammed to New York for trial. Ghailani's case is viewed as a test run for KSM and others.

While courts have recognized a legal basis for military detention of enemies independent of a jury's finding that a particular crime wasn't proven beyond a reasonable doubt, experts say, some critics of Guantanamo - and the administration itself - still see a point in trials of prisoners like Ghailani.

"The theory is you do get more legitimacy," said Robert Chesney, a University of Texas law professor and former Justice Department adviser. "A lot of people feel military detention just isn't legitimate. If you want to put a stamp of disapproval on someone, trials provide a stamp of disapproval that military detention doesn't provide."

Comments like Kaplan's, however, strip away the pretense and make a case like Ghailani's look like something akin to a show trial, critics say.

While courts have recognized a legal basis for military detention of enemies independent of a jury's finding that a particular crime wasn't proven beyond a reasonable doubt, experts say, the administration itself - as well as some critics of Guantánamo - still see a point in trials of prisoners like Ghailani.

"The theory is you do get more legitimacy," said Robert Chesney, a University of Texas law professor and former Justice Department adviser. "A lot of people feel military detention just isn't legitimate."

"It is so important to show we can take a terrorist accused of an actual crime and actually try him in court," said Karen Greenberg, director of the Center for Law and Security at New York University.

Comments like Kaplan's, however, strip away the pretense and make a case like Ghailani's look like something akin to a show trial, others say.

"Conviction in a trial publicly guaranteed not to result in the defendant's release will not be seen as a beacon of legitimacy," wrote former Bush Justice Department official Jack Goldsmith, an advocate of relying on military detention, in a New York Times Op-Ed column.

Wittes says that only a trial allows for the imposition of the death penalty - but that is not being sought for Ghailani.

Other advantages, such as the appearance of greater legitimacy, are outweighed by the risk of disclosure of intelligence secrets, he argues, and the risk - however slim - that the government will lose and be left with the public relations debacle of putting an acquitted defendant back into military detention.

"If you're not willing as a society to honor the acquittal," he said, "at some level that does make the trial a very strange proposition."