Hi y'all.
Welcome back to the show.
It's anti-war radio.
I'm Scott Horton and our first guest on the show today is Daphne Eviatar.
She's from Human Rights First.
Welcome back to the show.
Daphne, how's it going?
Going well, thanks Scott.
Good to be back on the show.
Well I'm very happy to have you here.
Now I'm looking at the Washington Post.
Ahmed Ghialani, Gitmo detainee, acquitted of all but one charge in New York.
What happened here?
It sounds like a giant epic fail of an exclamation point on the part of the national government here.
Well, you know, it's being presented that way in the media, which is kind of odd because the guy was convicted of a pretty serious federal crime that could land him life in prison.
I mean, it wasn't like the jury just gave him a parking ticket.
You know, he was convicted of conspiracy to destroy government property and so that has a minimum of 20 years and he could be sentenced to life in prison, which is likely given the rest of the circumstances of the case.
So, you know, some people are presenting it as a failure, but I don't think it's a failure.
Actually, I sat through a lot of the trial and I actually think that the system worked.
I think the justice system worked.
I thought it was actually a really good case.
So, as far as your opinion sitting in the courtroom there, you think that the prosecution proved their case that this guy was involved in the conspiracy to bomb the embassies in 1998 in Dar es Salaam and Nairobi?
I think they proved their case that he was involved in some way.
I think they didn't prove exactly what he knew about the conspiracy and what he intended to be doing and I think that's why the jury ultimately acquitted on the murder count because there was just no evidence that he intended to kill people or knew that this was going to be used to kill people.
You know, you could have inferred it, but he's only guilty if it's guilty beyond a reasonable doubt and I can understand why the jury felt like there were a lot of doubts about what this guy knew.
Keep in mind that the government brought him to trial.
This is the 1998 bombings of two U.S. embassies in Africa.
They brought him to trial now in 2010.
So, 12 years later, it's really hard to try a case and it's certainly really hard to make a claim about what somebody intended to do 12 years ago.
Well, I got to tell you, I think I'm a bit confused.
I mean, it says here that he was found guilty on conspiracy to do this, but you're saying they didn't really present any proof that he was actually in on it.
What did they prove?
He knew a guy who knew a guy or what is it?
You know, it was more complicated than that.
I mean, it was a five-week trial and there was a lot of testimony about basically showing that Gailani helped buy the truck that was used as a truck bomb in Tanzania that blew up the embassy and he helped buy gas tanks that were put into the truck to expand the realm of the explosion to make the explosion bigger.
So, there was evidence that he was directly involved in those things.
It's not exactly clear what he knew about what they were for and what the defense did very well was explain that in Tanzania, in this big open marketplace, which is where most of this happened, people are constantly acting as brokers for sales and they're getting involved and this is sort of how they make money is by introducing one person, excuse me, one person to another person and trying to get the sale to happen and then they get a little piece of it.
They get a commission and that's just kind of how stuff works in this big open marketplace.
So, what they presented it as was that Gailani was kind of acting as a broker and he was helping his friends buy some stuff.
Now, I don't think the jury totally bought that, but I think that it raised enough questions in their mind about did he really mean to be killing all these people?
It just wasn't clear.
Well, but then why do you say the justice was done that he was found guilty and faces many years in prison for this?
Sounds like they didn't really prove that he was in on any conspiracy at all.
Well, you know, they didn't and the jury apparently, you know, they acquitted him on 284 other counts.
What does that mean?
284 counts were dismissed by the jury.
Yeah, I mean, that's because there were 240 deaths, I think.
I'm sorry, I forgot the exact number and it was 242 deaths and then there was all the murder charges that each individual and then certain individuals, depending on their status, if they're a U.S. government employee, they have a different status and they get, there's an extra charge.
Yeah, we know that well.
So, you know, I mean, I understand your concern and I was not quite sure.
Hey, don't get me wrong, if he was in on it, he deserves to burn.
Hundreds of people were killed, but the thing is, is, you know, I look at it like the government is on trial.
They have unlimited resources.
They go and put all this together.
They hold this guy, Guantanamo Bay, all these things.
He finally gets his day in court and they don't really prove anything against him.
Seems to me like he's done his time held in lawless and probably torturous conditions down in Guantanamo and God knows what.
And then they don't even have anything on them.
And whenever I read a story where the jury acquitted him on everything, except the one little thing that makes me think of, you know, the Waco trial or, or even the Oklahoma City bombing trials where the jury's ready to acquit and they go, the government didn't prove their case here at all.
Let's just let them go.
And there's one juror, two jurors who say, Oh, whatever the government says is true.
And then they have a big fight and then they compromise and they go, Oh, well, we'll just find him guilty of something.
That way we can get out of here and go watch the game.
You know, I mean, honestly, it's hard to know.
We don't know what happened in the jury room.
And apparently there was almost a hung jury.
One of the jurors sent a note at one point saying, I disagree with everybody else, but they're pressuring me.
And the judge said, go back and keep deliberating, right?
There's your compromise.
Fine.
We'll find him guilty on the one conspiracy council.
I can go home.
But I want to, I want to say, cause I did listen to a lot of the evidence and a lot of the testimony that was presented.
I didn't get the sense that this guy didn't know anything that was going on.
I mean, he was buying tanks that were going to be used to filled with a gas that will exacerbate the impact of the bomb, right?
He was buying, uh, he was in constant contact with these guys who were much more directly involved, who were at least the government presented them as the kind of leaders of the conspiracy.
There was enough evidence to suggest that it wasn't just a coincidence that he happened to buy these particular materials that were then used as a bomb, that he was involved enough in the plot that he should be guilty of something.
I don't, I don't fault the jury for thinking that.
I mean, it's possible that this was a compromised verdict, but I can understand where it came from because I think you definitely got the sense that this guy was not innocent.
Well, it's a complicated situation though.
You know what I mean?
And from the government's perspective, how are they going to improve?
How are they going to prove what somebody knew 12 years ago, especially when that person is not testifying?
Well, if they have a, you know, some sworn testimony on the stand that, yeah, me and him talked about it, that kind of thing, that would be evidence, right?
Yeah, they didn't have that.
And I did wonder because there are four other people that were convicted of the crime in 2001.
None of them testified.
And I did wonder why not, you know, what, what happened?
I mean, it's not clear because they would have had the most direct evidence of what role Ahmed Gailani was playing, but I don't know why the government chose not to put them on the stand.
Well, a couple of things here, I guess, well, I got a couple more questions about this particular case, but I guess this goes to show that the federal prosecutors can get whatever they want in federal court, assuming that anybody knows anybody did anything provided the most vague definition of material support.
This is, I would think would take the rug out from under the argument that we have to have all these military commissions and all this lawlessness in order to handle the terrorism problem when, same as always, terrorism is a crime and the feds are perfectly capable of prosecuting it in court.
They convict innocent people all the time for crying out loud, never mind this guy, but you know, there's all kinds of setups all the time.
They win convictions 99% of the time, don't they?
Um, well, we found 91% of the time, but that's still really high.
Yeah.
And that's just in terrorism cases.
So yeah, you're right.
I mean, there's generally definitely, there's a higher conviction rate in terrorism cases than in other kinds of cases.
I was going to say 90 and then you would have made it sound even worse with my hyperbole.
You know, I always got to walk it back.
All right.
Well, hang on Daphne and we'll talk more about this case and more about the Guantanamo Bay situation in general.
And maybe some more specifics, if I think of it's a Daphne Eviatar from Human Rights First.
Oh, and I want to ask you about appendix M to war crimes all the way around.
All right.
We'll be right back y'all.
Anti-war radio.
All right, y'all.
Welcome back to the show.
It's anti-war radio.
I'm talking with Daphne Eviatar.
She is senior associate in Human Rights First law and security program.
Website for Human Rights First is humanrightsfirst.org.
And I see here now, Daphne, that you have an article at the Huffington Post.
I made Gilani verdict makes the case for the federal courts.
Hey, that's what we're just talking about.
Yeah.
Well, go ahead and elaborate all you want.
Well, I mean, I think I was probably saying just what you were saying, which is that, I mean, not quite.
I don't, I don't know that.
I don't want to say that, that anybody will be convicted in a federal court, but I do think that the federal court system tends to be harsher than the military commission system.
And for all these people who are going around saying they want to be really tough on terrorists.
So that way we should put them all in the military commission system.
That doesn't make sense.
They've got it backwards.
I mean, we just had a conviction and the military commission system where someone was convicted of murder and appears you to murder.
And he got eight years.
And here we have someone who was who was acquitted of, but 260 something counts of murder.
And he's going to probably get life in prison.
So I think if you're interested in putting terrorists behind bars for as long as possible, you want to go with the federal court system.
Yeah.
I always wondered about how, uh, I guess not so much the Bush regime, but their supporters in the media were able to get away with pretending as, you know, kind of the premise of their assertion that all this enemy combatant nonsense is legit, that somehow the federal court system is just full of a bunch of panty waist liberals who will let all these terrorists go and put us under Sharia law or whatever the heck it is.
You know, come on.
We had, there are 2 million Americans in prison right now out of a population of 310 million or something like that.
That's more than in communist China, which is still run by Apollo Bureau dictatorship.
Uh, 7 million people are on parole, probation, sitting in jail awaiting, uh, you know, their plea bargain on some trumped up charges all day, every day, plain old regular American non-criminals are persecuted by this government to no end.
The idea that, uh, you know, somehow the federal prosecutors in New York city are going to be unable to go in there and present a case that will get by a judge and a jury in the federal court system to me is, I mean, come on, what, what reality are we living in here?
Yeah.
I don't know where they get this idea.
And I, I actually don't think they believe it.
I think it's just a way to try to undermine the Obama administration.
And so I think as soon as, um, the administration, well, but I mean, it's how they, it's how they justified what Bush was doing for the last decade too.
Yeah.
Although there were a lot of terrorists brought to federal criminal court, uh, the federal court for get given civilian trials under the Bush administration.
I mean, there've been 400 people convicted on terrorism related charges since September 11th.
A lot of those were during the Bush administration.
Yeah.
One of those was an actual Al Qaeda guy, Mosawi.
Yeah.
If you count Richard Reed, but then again, he was prosecuted in England, right?
Well, he was charged in federal court.
I don't remember where he ended up prosecuted, but, but the point is that there, the, these critics on the right who have been complaining about the use of federal courts, never ever, ever criticized them when they were used by the Bush administration.
And they've always been used by the Bush administration.
And as you said, there's a lot of, we have a lot of tools, a lot of charges that get brought against people suspected of terrorism that range from, you know, material support based on having given money to a charity that was later found to have been suspected of connected connections to some terrorist organization all the way to murder and conspiracy to murder.
So there's a broad range of charges that they can bring in federal court.
And as you said, they do, and they usually get convictions.
I mean, I haven't seen a single acquittal in, in the New York federal court system on a terrorism charge.
I mean, a complete acquittal where the person is actually let go, let go.
There's times when the government overcharges and then they get a conviction on some charges and acquittal on some others.
Now back to this specific case, this conviction in, in federal court of this guy accused of, or convicted of conspiracy in the 1998 Africa embassy bombings.
I saw a quote in the post article that said, oh, this innocent naive boy was used as a dupe by his friends, according, that's his defense attorney talking.
And I wonder, did you do the math and how old was this kid at the time of the bombing in 1998?
And then one more thing about this specific case was I know he was held in Guantanamo Bay.
And I wonder if there's any indication as to whether he got the Katani treatment down there, the beatings and the frequent flyer program, et cetera.
Great.
Let me start with that one, because in fact that, in that case, we know, in this case, we know he was held in a secret CIA prison for two years.
He was arrested in 2004 in Pakistan, and he wasn't sent to Guantanamo Bay until 2006.
Now he claims he was tortured there.
The government has never said what happened to him there, but they admitted that he was coerced and that they would not use any evidence that was derived from those interrogations.
So that's a pretty big admission for the government, but they didn't want any evidence coming out about torture.
So they just refused to litigate that.
They conceded that point.
So that's another reason you didn't have, you're missing some evidence in this case, because none of his statements could be used against him.
And that was the government's fault, because they put him in a secret CIA prison and tortured him.
Was there never a law in America that said if the cops torture you or anybody, you know, under the color of law tortures you, then you've done your time and you're free to go?
Seems like it should be.
Yeah.
I mean, the defense actually made a motion to try to dismiss the case on the grounds of unconscionable treatment by the government, but the judge denied it.
Usually what happens is the evidence is not usable, and then they're supposed to prosecute whoever tortured you.
But of course, as we've seen, this country doesn't do that.
So we haven't gone after any of the people who actually committed the torture and abused detainees in their custody unlawfully, including the president who recently, the former president, George Bush, who recently was proudly boasting that, yes, he authorized waterboarding.
So, you know, this government has not taken that step to actually deal with that problem.
But in this case, the one thing that did happen was that the government did not introduce his statements and the judge did ban the use of evidence that the government learned about during those torture sessions by the CIA.
So that was another reason the government had a little less evidence than it might have otherwise.
Yeah, well, we won't give them the benefit of the doubt over that.
But I give you the benefit of the doubt.
If you say that they made the case that this guy was in on something, I guess that's something.
But then again, his lawyer says he was an innocent, naive boy at the time.
Did you buy that at all?
You know, he did a really good job, these lawyers.
And the other thing I want to say about this case and compared to being in the military commissions is the lawyers on both sides are really good.
They really done their homework.
They really did a good job.
They did the best they could with the material they had.
And that's what you want to see, because that's how you get justice done.
Whereas in the military commission cases, that's not what you see.
But going back to this particular defense lawyer, I mean, you know, he made that argument, I think, because Gailani looks like a kid.
He's 36 years old, and he was 24 years old when he was when he committed these crimes.
That's not a boy.
That's not a boy.
And the prosecution, the government lawyers made it a point of saying that this is not juvenile court.
He was not a boy.
He was not underage.
He was a 24 year old man.
He just happens to be really small.
He's short.
And he has a kind of innocent looking face.
So I think the defense was kind of trying to use that in their favor.
But that's just not really relevant to what he did or didn't do.
Now, one of the ironies that we've talked about on this show in the past, Daphne, and again, everybody, Daphne Eviatar from Human Rights First, humanrightsfirst.org, is that as the government, especially the Bush team and now the Obama team, you know, they picked it all up and ran with it.
When they, for example, prosecute this former child soldier, Omar Khadr, and I guess they got a plea bargain out of him down there at the military commission at Guantanamo on the charge of material support or whatever charges that they levied against him, not even being war crimes, throwing a grenade at a soldier who's invading your country is not a war crime.
And I think maybe I convinced you to agree with me.
And I saw you finally wrote a piece that said that actually doing this to Omar Khadr is a war crime, prosecuting him for what is not war crimes in this kangaroo system.
It's funny because you remember you asked me that at one point and I said, you know, I don't know if it's not if it's actually a war crime.
I'm not sure about that.
And then I talked to a law professor about this issue who had written an article about this, who's extremely knowledgeable about the whole issue of war crimes and what is and isn't a war crime.
And he said that, yeah, it is a war crime.
It's a war crime because it's not a fair trial.
And under the Geneva Conventions, he's entitled to a fair trial.
And by charging him with things that are not legitimately war crimes and were not crimes subject to the military commission jurisdiction when he committed them, that's a war crime because it's not a fair trial.
You're putting him in an unfair justice system.
So, yeah, in fact, I think the United States did commit a war crime in the way that it handled the case of Omar Khadr.
Well, and I guess I'll go to the rest of these then, right?
I mean, we're talking about a communist Cuba style show trial and communist Cuba for all the cook and the driver and the travel agent.
They got anybody else so far down there?
The Australian that they let go of $50 in time served like night court.
I'm sorry, Daphne, we're all out of time.
Thank you very much for your time.
Thank you so much for your interest, everybody.
That's Daphne Eviatar from Human Rights First.
We'll talk about Appendix M here in a minute with somebody else.
It's very important.
