In a decision released today, a Federal District Judge in New York has denied the claim by former Guantanamo Bay detainee Ahmed Khalfan Ghailani that he cannot face trial for the bombings of two U. S. embassies. Ghailani claimed that detention as an enemy combatant deprived him of his constitutional right to a speedy trial.
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 on the ground that the government had violated his constitutional right to a speedy trial. This is 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 to deny Ghailani’s claim 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 Guantanamo.
The Foundation’s brief, authored by Legal Director Kent Scheidegger, pointed out that 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. Because of this, his right to a speedy trial was not violated.
In his decision, District Judge Lewis Kaplan wrote, “None of the five-year delay of this prosecution subjected Ghailani to a single day of incarceration that he would not otherwise have suffered. He would have been detained for that entire period as an enemy combatant regardless of the pendency of this indictment. None of that delay prejudiced any interests protected by the Speedy Trial Clause in any significant degree. In these specific circumstances, Ghailani’s right to a speedy trial has not been infringed.”
The case began when Ghailani and several others, including Osama bin Laden, were indicted in December 1998 by the Clinton Administration for the August 7, 1998 bombing of U. S. embassies in Nairobi, Kenya and Dar es Salaam, Tanzania which killed 223 people including 12 Americans, and injured over 4,000. He is also charged with participation in a larger conspiracy to kill Americans in bombings in Saudi Arabia in 1995 and 1996 which 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 government records, 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 commission 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 asserted 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 Guantanamo detainees, to introduce argument supporting Ghailani’s speedy trial claim. Both Ghailani and CCR argued that the required remedy for this violation is to have the charges against Ghailani dismissed with prejudice. This would prohibit a trial in a civilian court or by a military commission and require Ghailani’s release.
The Criminal Justice Legal Foundation argued 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.
“The delay in the prosecution of this case had been caused by the defendant’s own acts of evading capture, and the overriding imperative of gathering intelligence from him to prevent further attacks on Americans,” said Scheidegger.
