Jury selection is underway in New York in the trial of Ahmed Khalfan Ghailani. He is the first suspect held at the U.S. military prison at Guantanamo Bay, Cuba to be tried in an American civilian court. The Tanzanian national is accused of terrorism in the 1998 bombings of two U.S. embassies in Africa and conspiracy with al-Qaida to kill Americans around the world.
Ahmed Khalfan Ghailani was captured in 2004 in Pakistan as a suspect in the bombing six years earlier of U.S. embassies in Kenya and his native Tanzania. He was sent to Guantanamo in 2006.
A judge ruled against his lawyers' attempts to dismiss the case on grounds Ghailani was subjected to prolonged detention and harsh interrogation at Guantanamo. Observers say the defense is likely to now use those issues in an appeal to jurors about fairness. The prosecution is expected to focus on earlier evidence related to the bombings.
Matthew Waxman is a Columbia University associate law professor and Senior Fellow at the Council on Foreign Relations. "The prosecution, on the other hand, is going to do everything it can to say, this is not a case about what happened at the hands of the CIA, or in fact even about events after 9/11. This is about events that took place well before 9/11," he said.
Secrecy is another issue. Legal analyst James Cohen says there could be a conflict between the need to present evidence and to avoid revealing how America gathers foreign intelligence. "The government is going to continue to try to keep secret as much as it thinks it can and release only what they have to to the participants in court and to the larger public, but the judge ultimately will decide this and there could be a clash," he said.
The U.S. Bill of Rights says no American shall be compelled to be a witness against himself and also guarantees a citizen's right to a speedy trial. Matthew Waxman notes the Ghailani trial may set precedents. "These types of cases raise broader issues of what kinds of rights, constitutional rights, extend to non-citizens captured abroad," he said.
Waxman says terrorism trials in American courts raise concerns about the security of courthouses, witnesses and jurors. James Cohen says this has not been an issue in earlier terrorism cases. "I think so far it's perfectly clear that it can be done, and indeed there are other examples across the country where we've tried these kinds of cases in a regular federal court and the trial has been perfectly fine," he said.
Cohen says the Ghailani case demonstrates to the world America's commitment to the rule of law. Waxman agrees. But he notes it is not likely to end the debate over whether foreign terrorism suspects should be tried in American civilian courts or by military tribunals.