USA: Shadow over justice
Absence of accountability and remedy casts shadow over opening of trial of former secret detainee accused in embassy bombings
When injustice anywhere is ignored, justice everywhere is denied
US Secretary of State Hillary Clinton, December 20091
The trial of a Tanzanian man transferred last year from the US Naval Base at Guantánamo Bay in Cuba to the US mainland for prosecution is set to begin in New York on 4 October 2010. The decision to prosecute Ahmed Khalfan Ghailani in ordinary federal court on charges of involvement in embassy bombings in 1998, rather than to continue to hold him in indefinite detention without criminal trial or to try him before a military commission, was and remains a welcome one. However, a shadow lies over the proceedings.
First, the trial will serve as a reminder that today Ahmed Ghailaini remains the only Guantánamo detainee to have been transferred to the US mainland for prosecution. Nearly a year after the US Attorney General announced that five other detainees would be brought to New York to be prosecuted in relation to the attacks in the USA on 11 September 2001, the five men remain in Guantánamo without charge or trial, along with more than 150 others. Those detainees, and the survivors of the attacks in relation to which some of them have been accused, must it seems continue to wait for justice.
Second, although the government has succeeded in seeing off defence motions to have charges against Ahmed Ghailani dismissed because of his unlawful treatment prior to his transfer to New York, its failure to ensure accountability and remedy for such human rights violations – including the crimes under international law of enforced disappearance and torture – is an injustice that it must urgently and thoroughly address.
The trial of Ahmed Ghailani, who was arrested in Gujarat in Pakistan on 24 or 25 July 2004 and secretly handed over to US custody on a still classified date the following month, could and should have occurred years ago. However, the US authorities chose to subject him to two years in the secret detention program operated by the Central Intelligence Agency (CIA). During that time he was subjected to enforced disappearance and to detention conditions and interrogation techniques that violated the prohibition of torture and other cruel, inhuman or degrading treatment. He was transferred to indefinite military custody in Guantánamo in early September 2006 before being charged for trial by military commission in March 2008.
On 21 May 2009, four months after President Barack Obama took office, the Department of Justice announced that Ahmed Ghailani would be tried, not by military commission, but in federal court under an indictment that had been pending against him in the District Court for the Southern District of New York since March 2001 (which superseded an October 1998 indictment in which he had also been named). On 9 June 2009 he was transferred from Guantánamo to New York. He is charged with complicity in the August 1998 bombings of two US embassies in Kenya and Tanzania in which 224 people were killed and many more injured. He faces a life sentence if convicted.