"Ghailani Still Faces Stiff Penalty for Bombings"

The title of this post is the headline of this lengthy and effective new CBS News piece discussing some of the sentencing issues following yesterday's conviction (on only one of 285 counts) of a former GITMO detainee tried in civilian court.  Here are excerpts:

When he is sentenced in January, al Qaeda operative Ahmed Khalfan Ghailani, 36, faces a minimum 20 years of imprisonment, and a possible life sentence, for his conviction Wednesday for his role in the 1998 U.S. embassy bombings in East Africa.

In the first federal terrorism trial of a former detainee at the prison camp at the U.S. naval base in Guantanamo Bay, Cuba, a civilian jury found Ghailani guilty, but only of one of 285 counts levied against him: conspiracy to destroy buildings and property of United States by means of an explosive.

Although the jury determined Ghailani had a hand in a conspiracy that resulted in death, the panel found him personally not guilty on all 224 murder counts -- 11 for those who died in truck bombing of the American embassy in Dar es Salaam, Tanzania, the focus of his trial, and for the 213 people who died in nearly simultaneous explosion in Nairobi, Kenya, on Aug. 7, 1998.

"At the start of this trial, we believed Ahmed was truly innocent of all these charges," lead defense attorney Peter Quijano said outside the Lower Manhattan courthouse Wednesday evening. "We still truly believe he is innocent of all the charges."...

The jury found Ghailani not guilty of four other conspiracy counts, including the top count of the indictment, al Qaeda's global conspiracy to kill Americans, which would have guaranteed the same life sentence being served by four men convicted in the embassy bombings conspiracy in a 2001 trial.

U.S. District Judge Lewis Kaplan, who presided over the month-long trial, scheduled Ghailani's sentencing hearing for January 25, 2011, at 11 a.m. "He will face, and we will seek, the maximum sentence of life without parole when he is sentenced in January," said Preet Bharara, U.S. attorney for the Southern District of New York, in a written statement....

The jury was told that Ghailani was captured in Pakistan in July 2004, but was provided no information about his alleged activities while a fugitive for six years following the Africa bombings or anything about his six years in custody.

He spent two years in a secret CIA prison overseas, where he was subjected to "enhanced interrogation techniques" his lawyers called torture. Then he was moved to Guantanamo for three years before his transfer to the U.S. last year. He has been held in the high security wing of the Metropolitan Correctional Center adjacent to the courthouse....

Over the course of the past month, the jury heard 13 days of testimony and evidence, with 50 prosecution witnesses and hundreds of government exhibits, and two days of closing arguments.  More than a third of the witnesses, including embassy bombing survivors from Africa and FBI agents, had previously testified in the 2001 trial. The defense called no witnesses, nor did the defendant testify....

The government has achieved more than 200 convictions in terrorism-related prosecutions since 9/11 and a 90 percent conviction rate, according the the NYU Center on Law and Security, which tracks theses cases....

With Ghailani facing a 20 year minimum sentence, his attorneys plan to argue that he should get credit for six years served in U.S, custody, a consideration with other al Qaeda suspects detained as "enemy combatants" prior to seeing their legal situations resolved in federal court, such as Jose Padilla and Ali al-Marri.  The defense teams also plans to file a motion for a new trial on the one conspiracy count for which Ghailani was convicted.

If prosecutors fell short, they failed to persuade all the jurors that Ghailani knowingly and willfully participated in the overall al Qaeda conspiracy or that he knew its lethal goals in East Africa.  "We never disputed that he engaged in certain conduct," Quijano said of Ghailani.  "The question both strategically as well as legally, was whether there was proof that he knew."

Unsurprisingly, most of the immediate post-verdict discussion has been about what this result means for the Obama Administration's apparent interest in trying many former GITMO detainee in civilian courts. But, also unsurprisingly, I am immediately interested in the array of unique (and not-so-unique) sentencing issues that Judge Kaplan will be facing. The Government will surely emphasize so-called "acquitted conduct" as part of its advocacy for an LWOP sentence, and I have a feeling prosecutors will adopt an approach to guideline calculations that will have the advisory range urge life as well. Meanwhile, the defense seem likely to urge the minimum sentence of 20 years (as well as credit for time served), and it is especially interesting to speculate about how both sides will spin arguments around all the 3553(a) factors. In other words, sentencing fans, stay tuned.