NEW YORK—The first Guantanamo detainee to face a civilian trial isn’t accused of being a sworn member of al-Qaida at the time a U.S. embassy was bombed his native Tanzania, but that hasn’t stopped prosecutors from mentioning the terror group—over and over.
In opening statements earlier this month at Ahmed Ghailani’s trial, Assistant U.S. Attorney Nicholas Lewin wasted little time before mentioning al-Qaida as he set the scene of the deadly attack in 1998.
A 2 1/2-ton truck bomb “has been sent to murder and to maim,” he told jurors in federal court in Manhattan. “It’s been sent by al-Qaida.”
By the time he was done 30 minutes later, he’d said “al-Qaida” more than 50 times.
By comparison, at the 2001 trial of four other men convicted in the plot, then-Assistant U.S. Attorney Paul Butler mentioned al-Qaida fewer than half as many times in a significantly longer opening statement. Osama bin Laden was named more than 60 times, compared with eight mentions at the current trial.
The recent bombardment of al-Qaida references reflect the broad latitude prosecutors have been given to evoke terror groups’ thirst for American blood.
At the earlier trial, prosecutors had the task of educating jurors about an unfamiliar threat. A decade later—with the Sept. 11, 2001, attacks burned into the public’s awareness—al-Qaida has become a terror brand name that prosecutors can exploit.
That advantage became especially important after a key government witness—a man who says he sold explosives to Ghailani—was barred from testifying because the CIA learned of the man’s identity at a secret camp where Ghailani underwent harsh interrogations.
Prosecutors are “going to play the al-Qaida card,” said Karen Greenberg, executive director of the Center on Law and Security at the New York University School of Law.
The approach, Greenberg said, shows the government’s belief that, “We can convict him by association alone.”
Ghailani, 36, is charged with conspiracy in a plot to destroy U.S. embassies in Dar es Salaam, Tanzania and Nairobi, Kenya on orders from bin Laden. In all, 224 people were killed in the Aug. 7, 1998, attacks, including 12 Americans.
Prosecutors allege Ghailani helped buy the truck used to bomb the Tanzania embassy and fit it with explosives. They say he also purchased TNT, as well as detonators used in both attacks.
He was arrested in 2004 and held by the CIA at a secret overseas camp before being transferred to Guantanamo in 2006.
Defense attorneys have argued that their client was a dupe who knew nothing about the plot. Before trial, they sought to persuade U.S. District Judge Lewis Kaplan to bar bin Laden’s anti-American statements from 1996 through 1998, calling them “overwhelmingly prejudicial.”
Prosecutors had said in court papers that bin Laden’s efforts to enhance al-Qaida’s terrorist image, communicate its goals to its far-flung members and help it recruit new supporters were important for context. The same evidence was used at the 2001 trial of the four convicted men.
“To establish that the defendant intended to kill Americans in particular, it is relevant that the leader of the conspiracy was emphatically and repeatedly directing his followers to, in fact, kill Americans,” they wrote in court papers.
The judge agreed.
So far, the jury has heard a former al-Qaida member who has cooperated with the government describe how bin Laden took the group in a more extreme direction with a 1998 fatwa against Americans.
Bin Laden accused the United States of killing innocent women and children in the Middle East and decided “we should do the same,” L’Houssaine Kherchtou said on the witness stand.
A prosecutor read aloud the fatwa, which called on Muslims to rise up and “kill the Americans and plunder their money wherever and whenever they can find it.”
The government’s emphasis on al-Qaida in opening statements led the defense to ask for a mistrial.
Defense attorney Peter Quijano argued that prosecutors had “suggested they would prove that the defendant was a member and associate of al-Qaida, in total contravention to what they said they would do.”
Prosecutor Michael Farbiarz insisted it was a question of the loyalty oath, or bayat.
He told jurors that “that the evidence will show that the defendant was a member of an al-Qaida cell—not that he took a formal loyalty oath, not that he was a member in the sense that he had ever pledged bayat.”
“The defendant is not a formal member of al-Qaida in any way the government will seek to show at this trial,” Farbiarz said. “However, he was a member of that cell.”
Since getting a tutorial on al-Qaida, the jury has heard witnesses testify about the truck the plotters used in the bombing. On Wednesday, there was more dry testimony by FBI agents about collecting evidence at a dingy hideout in Tanzania.
Ghailani’s name didn’t come up until late in the day when his cousin testifed.
“The strategy has to be to connect (Ghailani) to the larger al-Qaida,” Greenberg said. “Otherwise, what do you have?”