MANHATTAN (CN) - Defense attorneys for Ahmed Khalfan Ghailani, whom a federal jury acquitted of 284 of 285 terrorism-related charges in November, are fighting his single conviction by appealing to the Constitution, in a 39-page motion seeking acquittal or new trial. Ghailani, the first Guantanamo detainee to be tried in a civilian court, was accused of helping to plan and execute the bombings of U.S. Embassies in Kenya and Tanzania, which killed 224 people and injured thousands on Aug. 7, 1998.
In the motion, defense attorneys say that jurors acquitted Ghailani of every conspiracy and murder charge related to the bombings, and that the one guilty count - conspiracy to destroy U.S. property - referred broadly to bombings of U.S. facilities "anywhere in the world."
The single guilty count carries a potential life sentence. Ghailani's attorneys find that inconsistent with the numerous acquittals for crimes stemming from the same events.
Civil libertarian Karen Greenberg, author of "The Least Worst Place: Guantanamo's First 100 Days," says the press has paid less attention to more powerful arguments in the defense's appeal motion that are more likely to move U.S. District Judge Lewis Kaplan.
In the second half of the 39-page motion, the attorneys say Ghailani's constitutional rights were violated twice during his trial, once by a government prosecutor and once by the judge.
Michael Bachrach, lead author of the motion seeking acquittal, claimed that Judge Lewis Kaplan erred in giving jurors an instruction that lowered the government's burden of proof. And, Bachrach wrote, Assistant U.S. Attorney Michael Farbiarz engaged in "foul play" by making a "disingenuous" argument during summation that amounted to "false evidence."
"That's going to bother Kaplan," said Greenberg, the executive director of NYU's Center on Law and Security. "He's a thinker. He's not just end-oriented. His job, the way he understands it, is to understand these issues the best he can, to really get inside of them."
Before the trial began, Judge Kaplan barred the government from calling Hussein Abebe as a witness, writing in a 63-page ruling that the government learned about him through Ghailani's alleged torture.
This made Abebe inadmissible under the Fifth Amendment protection against self-incrimination, Kaplan ruled, writing that "we must adhere to the basic principles that govern our nation not only when it is convenient to do so, but when perceived expediency tempts some to pursue a different course."
"Kaplan is really wed to constitutional issues," Greenberg said. She added, "I felt that what this document did from beginning to end is to invite him to consider truly compelling legal arguments."
Greenberg said the strongest argument in the motion questioned Kaplan's decision to instruct the jury on concept of "conscious avoidance:" that deliberately avoiding knowledge about an illegal conspiracy is tantamount to joining one.
The defense claims that Kaplan should not have given an instruction on the concept at all, and that the jury clearly considered the concept before deciding Ghailani's fate.
The day before the verdict was announced, jurors asked Kaplan to explain an aspect of the theory of conscious avoidance. The defense agrees that the judge's instruction was "completely accurate" as a "statement of law."
But it says the instruction was unwarranted because there would have been no "red flags" suggesting that Ghailani knew - or avoiding knowing of - any conspiracy "had the Embassies never been bombed."
In such a case, "there would have been no basis to conclude that Ghailani did anything that had an illegal purpose. He bought a truck. There was a cell phone in his name. He was present and associated with his co-defendants ... Absent the bombings, no one would have ever suspected illegal conduct was afoot," the motion states.
By giving this instruction, Kaplan made the "presumption of innocence" yield to the "presumption of conscious avoidance," the defense says.
"I think the point about conscious avoidance issue is real," Greenberg said. "It switches the burden of proof; it changes the presumption of innocence standard. I think these are hugely impactful words for that judge. ... I think he is very aware of the precedent-setting standard of this case."
The motion ends with a more eye-catching argument that Greenberg finds less compelling: the accusation of "foul play" by one of the prosecutors.
During his rebuttal summation, Assistant U.S. Attorney Michael Farbiarz said, "No dupe stays silent in the face of being involved in this type of thing." Farbiarz was rebutting defense attorney's Peter Quijano characterization of Ghailani as a "dupe" and "fall guy."
The motion for acquittal claims that Farbiarz's statement was "akin to a Napue
violation," citing a case in which a judgment was reversed based on false evidence.
"Even if the jury had found that Ghailani had some knowledge of what was about to occur ... the argument that no one who was duped would remain silent and fail to immediately go to the police, was blatantly misleading, and not something that the government should have been permitted to comment upon," the motion states.
It adds that the comment was "particularly inappropriate in this case, since the government was well aware that there were in fact many similar dupes that - unbeknownst to the jury - figured out after the fact what had occurred but did not then immediately report to the police."
The "most glaring example" of such an alleged dupe was Abebe, the man the government unsuccessfully tried to call as a witness.
"Abebe, of course, was also an individual that the government was aware had spent eight years in hiding doing everything to avoid coming forward to speak to the police while being fully aware that he had information that would be relevant to the investigation into the Embassy bombings," the motion states.
Farbiarz's rebuttal summation "essentially attempted to take the Abebe preclusion order and turn it on its head, capitalizing with disingenuous arguments that it could never have made had Abebe testified at trial," the motion states. It adds that "this should not be permitted to stand."
Greenberg said she was "shocked" to find that the defense had made that argument.
"You're reading [the motion], and you're expecting the whole thing to just peter out in the direction it was going. Then, all of a sudden, whoop! Governmental misconduct, essentially," she said.
But Greenberg said she was not persuaded that this argument would convince Kaplan.
In a previous interview with Courthouse News, former federal prosecutor Aitan Goelman said that juries often return mixed verdicts. It happened to him when he prosecuted Oklahoma City bombing co-conspirator Terry Nichols, whom a federal jury convicted of multiple counts of involuntary manslaughter and conspiracy instead of murder.
"Jury verdicts don't have to be consistent. You can get weird results. To reach agreements on certain results, you end up compromising," Goelman said.
Greenberg said that the constitutional points raised in the Ghailani appeal are novel and "courageous."
She said it was "courageous" of the defense to ask for a new trial, a move she feels could be "dangerous."
"I think there's also the sense that the case pushed against the wall of where we thought terrorism trials could go. To ask for more, that's why I say it's very courageous," she said.
She would not dismiss the possibility that Kaplan will grant one.
"I think there's always a possibility with Kaplan, because he wants to be as open-minded and judicious, to pick a term about the law, as he can be. ... If he really feels that this comes down to a compelling legal case, he's going to follow wherever his judgment takes him," Greenberg said.
Ghailani was arrested in Pakistan in 2004. He was kept in a secret prison outside of the United States, moved to Guantanamo and transferred to New York in 2009. His trial in the Southern District of New York ended in November.
However much longer his legal saga endures, Greenberg said, that he is represented by fine lawyers.
"They truly believe in the innocence of their client. They conveyed that to the jury, and so I think that's a large part of what happened. Now on appeal we'll see what happens," she said.
The Manhattan U.S. Attorney's office declined to comment on the defense motion. They are expected to file a response before Judge Kaplan makes a ruling at Ghailani's sentencing on Jan. 25, 2011.