Release Date: January 6, 2010
Contact:  Michael Rushford
(916) 446-0345

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First Review of Claims Likely to be Considered in Case of 9/11 Conspirators

On Monday, January 11, a hearing will be held in New York Federal District Court in the case of Ahmed Khalfan Ghailani, a foreign-born enemy combatant and Guantanamo Bay detainee, indicted for assisting in the bombings of two U. S. embassies in East Africa.

Last fall, the district judge presiding in the case of United States v. Ghailani invited the California-based Criminal Justice Legal Foundation to submit an amicus curiae (friend of the court) brief opposing Ghailani’s claim that the charges against him must be dismissed because the government has violated his constitutional right to a speedy trial.  This will be the first time this issue has been raised in the trial of a suspected terrorist captured in another country and held as an enemy combatant.  The court’s decision may affect the New York trials of Khalid Sheikh Mohammed and the four other alleged 9/11 conspirators who were also classified as enemy combatants and held for an extended period at “Gitmo.”

“The delay in the prosecution of this case has been caused by the defendant’s own acts of evading capture and by the overriding imperative of gathering intelligence from him to prevent further attacks on Americans,” said Kent Scheidegger, the Foundation’s Legal Director and author of its brief.

Ghailani and several others, including Osama bin Laden, were indicted in 1998 by the Clinton Administration for the August 7, 1998 bombing of U. S. embassies in Nairobi, Kenya and Dar es Salaam, Tanzania.  Those attacks killed 223 people, including 12 Americans, and injured over 4,000.  Ghailani is also charged with participation in a larger conspiracy to kill Americans, including bombings in Saudi Arabia in 1995 and 1996 that killed 25 U. S. servicemen and a 1993 attack on U. S. soldiers in Somalia that left 18 Americans dead.

Following his indictment, Ghailani evaded capture for five and a half years.  During this time, the Government alleges he remained active in al Qaeda and learned important information about the terrorist organization.  After his capture in Pakistan in 2004, Ghailani was transferred to CIA custody and interrogated about al Qaeda operations.  In 2006, he was taken to Guantanamo Bay and detained as an enemy combatant.  At that time, Congress had given President Bush the authority to have enemy combatants tried by military commissions.

According to the Government’s brief, Ghailani was made aware that he had been indicted, but at no time did he or his personal representative request a speedy trial.  During preparation for trial by a military commission his lawyer recognized the complexity of the case and consented to delay the proceedings.

On January 20, 2009, a few hours after his inauguration, President Obama directed an immediate halt to the military commissions system for prosecuting detainees.  On May 21, 2009, Ghailani was transferred to New York for prosecution in federal court under the 1998 indictment.  The decision to try Ghailani in a U. S. civilian court provides him with legal rights which were not available to enemy combatants facing trial by military commissions.  This unprecedented change in the legal status of persons initially captured as prisoners of war has raised fundamental questions about whether the Constitution allows Ghailani, and others like him, to be tried at all.

In a pre-trial motion, Ghailani asserts that one of the rights afforded to U. S. criminal defendants, the right to a speedy trial, was violated by the Government when it kept him in military custody for several years, rather than bringing him to trial in a civilian court directly after he was captured.  To assist in resolving this issue, the court invited the Center for Constitutional Rights (CCR), an advocate for Gitmo detainees, to introduce argument supporting Ghailani’s speedy trial claim.  Both Ghailani and CCR argue that the required remedy for this violation is to have the charges against Ghailani dismissed with prejudice.  In a typical criminal case, such a dismissal requires the defendant’s release.

The Criminal Justice Legal Foundation (CJLF) argues that, although he was under indictment at the time of his capture in Pakistan, Ghailani was not in the custody of a U. S. law enforcement agency until he was transferred to the FBI last May.  “Ghailani’s detention in both the CIA and DoD [Department of Defense] phases was a proper exercise of executive power pursuant to legislative authorization in a time of war,” states the CJLF brief.  Although there was a pending indictment, Ghailani’s detention was not under the authority of that indictment, and the pending charge did not cause him any prejudice.  Because of this, his right to a speedy trial has not been violated under the flexible test established by the Supreme Court in the 1972 case of Barker v. Wingo.

If the court decides otherwise, and dismisses Ghailani’s case, the Foundation argues that the dismissal should be without prejudice to trial by military commission, which would allow his trial and sentencing to go forward as originally planned.  “To let a conspirator off scot-free for the murder of hundreds of people would be a miscarriage of justice of cataclysmic proportions,” writes Scheidegger.