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The Ghailani Precedent

10:23 AM, Oct 6, 2009 • By THOMAS JOSCELYN
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U.S. Attorney General Eric Holder has reportedly told prosecutors in Manhattan that the Obama administration will not seek the death penalty for Ahmed Khalfan Ghailani, an al Qaeda terrorist who is accused of participating in the 1998 embassy bombings in Kenya and Tanzania. Earlier this year, Ghailani was transferred from the detention facility at Guantanamo Bay, Cuba, where he was slated to be tried by a military commission, to New York. Ghailani currently awaits trial in a U.S. federal court. The Obama administration's decision to transfer Ghailani to New York, and to drop the death penalty as possible punishment, is not surprising. Leftist human rights organizations, including Human Rights Watch and Amnesty International, have long lobbied on Ghailani's behalf for just such measures. And, late last year, military commission prosecutors did not request the death penalty for Ghailani either. But even ignoring the differences in how he will be tried, Ghailani's case underscores some of the fundamental differences between the Bush administration's and the Obama administration's detention policies -- especially with respect to interrogating senior al Qaeda members. Ghailani was one of the so-called "high value" detainees held at Gitmo. Prior to arriving there in 2006, he was detained by the CIA and subjected to what the Agency called its "enhanced interrogation techniques" (EITs). Ghailani was not waterboarded, but other EITs were reportedly used. And, according to the CIA, Ghailani gave up new and valuable intelligence during his time in the Agency's custody.

Ghailani was captured in 2004 after being on the run for years. He was previously indicted for his role in al Qaeda's most successful attack prior to September 11, 2001 -- the August 7, 1998, embassy bombings. According to a one-page biography prepared by U.S. intelligence officials and published on the Defense Department's web site, Ghailani knew "many of the Africans involved in the attacks." One of al Qaeda's embassy bombers "asked Ghailani at various times to help the group purchase a truck, gas cylinders, and TNT that would later be used to construct a car bomb, requests Ghailani fulfilled." Ghailani left Africa for Afghanistan the day before the embassy bombings, but only after he helped his al Qaeda compatriots prepare for the attacks. More than 200 people were killed, including twelve Americans. In Afghanistan, according to the Defense Department's short biography, Ghailani "attended regular training at one of al Qaeda's camps and served as a rank-and-file soldier." He became a cook for Osama bin Laden and then, in 2001, joined a group of his fellow Africans "who ran al Qaeda's document forgery office in Kandahar, Afghanistan." After the Taliban fell, Ghailani fled first to Karachi, Pakistan, and then South Waziristan. During this time, Ghailani worked for Abu Hamza Rabia, who was one of al Qaeda's chief operational commanders until he was killed in a U.S. airstrike in December 2005. Among other plots, Rabia was involved in at least two assassination attempts against Pakistani President Pervez Musharraf. While working for Rabia, Ghailani became one of al Qaeda's top facilitators and "forged or altered passports for many al Qaeda members." According to the DOD's biography, "Most of his work involved substituting photos in passports and modifying visa stamps." Because of his work on behalf of Rabia, and the fact that he "lived at various houses in North and South Waziristan in 2003 and 2004," Ghailani met with "many high-and low-level al Qaeda operatives." This, coupled with his involvement in the embassy bombings, made him a valuable detainee for the CIA. According to declassified excerpts in a recently released CIA analysis titled "Detainee Reporting Pivotal for the War Against Al Qaeda," and dated June 3, 2005 (emphasis added):