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Ghailani Convicted on One Count, Acquitted on All Others

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Wednesday, November 17, 2010 at 6:45 PM

Ahmed Ghailani, charged with some 280 counts of conspiracy and murder in relation to the 1998 East African Embassy Bombings, has been convicted on one conspiracy count–but otherwise acquitted on all charges.

Ghailani was convicted of violating 18 USC 844(f)(3) and (n). Section 844(f) provides:

 (1) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.

 (2) Whoever engages in conduct prohibited by this subsection, and as a result of such conduct, directly or proximately causes personal injury or creates a substantial risk of injury to any person, including any public safety officer performing duties, shall be imprisoned for not less than 7 years and not more than 40 years, fined under this title, or both.

 (3) Whoever engages in conduct prohibited by this subsection, and as a result of such conduct directly or proximately causes the death of any person, including any public safety officer performing duties, shall be subject to the death penalty, or imprisoned for not less than 20 years or for life, fined under this title, or both.

Section 844(n) then applies conspiracy liability to this provision, but takes the death penalty off the table:

Except as otherwise provided in this section, a person who conspires to commit any offense defined in this chapter shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense the commission of which was the object of the conspiracy.

It is exceedingly hard to understand how a jury could conclude that Ghailani did conspire to bomb the embassy in question yet not also to kill the inevitable victims of the bombing.  The situation smacks of a compromise verdict (there was much talk this week about a single holdout juror, based on a note that juror had sent out to the judge).  Unless of course one thinks the jury concluded that Ghailani knew that the plan was to bomb the embassy, yet thought the scale would be small and somehow not lethal.

In any event, this mixed bag will do little to quell the debate over the prospects for prosecuting other al Qaeda suspects held at GTMO.  Supporters of prosecution can point out that Ghailani will serve anything from 20 years to life (smart money is on life) as a result of the conviction.  Critics will point to the acquittals on all the other charges.  Probably no one will emphasize that the results in any one case just don’t prove anything about the results likely to obtain in other cases, but that’s par for the course in these debates.

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