June 13, 2009 | Commentary on National Security and Defense, Terrorism

First -- and Perhaps Last -- Gitmo Inmate Brought to America

Ahmed Khalfan Ghailani (aka Haytham al-Kini to his al-Qaeda "brothers") got a one-way ticket from Guantanamo Bay to Manhattan this week. He is the first high-value Gitmo detainee to enter the United States to face justice.

And he could be one of a very few -- perhaps the only one -- similarly situated.

Liberals applaud the move as a sign of things to come: the closing of Gitmo and bringing all those detainees to the United States for trial in federal court. They want to criminalize war, which is a dangerous and bad idea.

Critics, meanwhile, warn that Ghailani is a "test case" for the Obama administration to use the federal courts to try most of the detainees.

But Ghailani's case is unique, a one-off. It is, for lack of a better expression, finishing up some unfinished business. That unfinished business is the 1998 Embassy bombings trial.

This trial will most likely be a carbon copy of the one for Ghailani's co-conspirators held in 2000 and 2001. That trial took place before 9/11, and none of the evidence introduced at trial was gathered as a result of post-9/11 interrogations. The case was not, and will not be, based on information gleaned from interrogations of other detainees, like some of the cases tried before military commissions.

Instead, the government will rely on the same evidence and the same witnesses this time around. Bringing in post-9/11 evidence would unnecessarily complicate an otherwise focused, cut-and-dry case.

Another unique aspect of the case: because it will be based on previously disclosed evidence, there's little risk that national security secrets will be exposed.

So who is this guy?

In 1998, Ghailani (along with 20 other terrorists) was indicted for his alleged role in the 1998 bombing of the U.S. embassies in Kenya and Tanzania. Those terrorist attacks resulted in 212 deaths (including 12 Americans) and more than 4,000 injured. Ghailani purchased the truck, gas cylinders and dynamite later used to build the car bomb used in the attack. He fled Tanzania the day before the bombs went off.

Four of Ghailani's co-conspirators were ultimately caught and brought to trial in New York in 2000-2001. Conspicuously absent were Ghailani and fellow co-indictees and household names Osama bin Laden and Ayman al-Azwahiri. After a long trial, the defendants were convicted and sentenced to life without parole.

After fleeing Tanzania, Ghailani moved to Afghanistan, where he attended an al-Qaeda training camp. He served as a foot soldier, eventually becoming one of Osama bin Laden's many cooks. In 2001, he joined a band of fellow African terrorists who ran al-Qaeda's document forgery office, and mastered the art of passport and visa forgery, rising quickly to a prominent position in al Qaeda.

He fled to Pakistan after the fall of the Taliban and was captured there in 2004, following a shootout. Ghailani was placed into the CIA's interrogation and detention program and transferred to Guantanamo in September 2006.

On March 17, 2007, during his administrative hearing to determine whether he was an unlawful enemy combatant, Ghailani admitted that he had trained at al-Qaeda's Al Farouq camp, that he was trained in the use and detonation of explosives, and that he was forging documents for al-Qaeda at the time he was captured in 2004. Although he denied being a member of al-Qaeda, he admitted that he met Osama bin Laden, that he purchased the TNT, and that he drove around in the truck used for the embassy bombings.

But the charges to which Ghailani pleaded not guilty to this week did not mention any of his activities post-1998. His trial will be a repeat of the 2000 trial of his co-conspirators, most likely with the same result.

Civil liberties and liberal groups will be sorely disappointed if they think that there are a lot of Ghailanis at Gitmo. There aren't. His case is factually unique.

And those who worry that this case will set a dangerous precedent should recognize the same thing -- this is (hopefully) a one-off. Would anyone have made the same complaints had the CIA turned over Ghailani to federal prosecutors in 2004, when he was captured?

This case is nothing new. It's simply finishing up unfinished business.

Charles D. Stimson is a Senior Legal Fellow at the Heritage Foundation, and a former Deputy Assistant Secretary of Defense for Detainee Affairs in 2006-2007.

About the Author

Charles "Cully" Stimson Manager, National Security Law Program and Senior Legal Fellow
Center for National Defense

First Appeared in Human Events