* United States v. Ghailani (S.D.N.Y. July 12, 2010)
A very important ruling today by Judge Lewis Kaplan, denying Ahmed Khalfan Ghailani’s motion to dismiss the indictment on Speedy Trial grounds. (disclosure: I served as a clerk to Judge Kaplan years ago).
As you may recall, Ghailani is under indictment in relation to the 1998 East African embassy bombings, but until recently had been held for years at GTMO. He was transferred to New York for trial, and is viewed in some quarters as a test case for the various issues that might arise in this circumstance—including the speedy trial question. The full 48-page opinion is attached, and also appears here: http://www.nysd.uscourts.gov/cases/show.php?db=special&id=110.
Highlights and reasoning from the opinion:
– Ghailani was indicted in 1998, but remained at large until captured by a foreign state in 2004.
– He was in CIA custody for about two years after that.
– He then was transferred to DOD custody, at GTMO. He was brought to New York for trial in June 2009 (after about five years in US custody). He moved to dismiss the indictment on 6th Amendment speedy trial grounds.
-“Ghailani contends that his arrest in 2004 presented the government with a choice: it either could have prosecuted him at that time on this indictment or it could have detained and questioned him in the interests of national security. But it could not do both.” (p. 17)
– Whether the speedy trial right has been violated depends on the circumstances, including among others the reason for the delay.
– As to the years in CIA custody, the government had a substantial reason not to prosecute: “Suffice it to say here that, on the record before the Court and as further explained in the Supplement [a classified supplement to the opinion], the CIA Program was effective in obtaining useful intelligence from Ghailani throughout his time in CIA custody.” (p. 10)
– As to the years at GTMO, however, the government’s justification was less different. In contrast to the intelligence-gathering justification for delaying prosecution during the CIA custody phase, the detention at GTMO was focused simply on preventing Ghailani’s return to hostilities. And that could have been achieved even if he’d been transferred to Bureau of Prisons custody in order to face trial on the indictment. The Court also was not persuaded that delay in prosecution was justified separately by any need to have Ghailani present at GTMO for his CSRT proceeding, or in relation to the military commission investigation relating to him.
– Balancing all the relevant factors, including the assessment of the government’s justification for delay noted above, the Court concluded that the delay during the period of CIA custody was relatively clearly appropriate, while the subsequent three-year delay while he was at GTMO presented a closer case. That said, there was no evidence that the government obtained or sought to obtain trial advantage as a result of that delay, nor that Ghailani as a result was obliged to remain in custody when otherwise he would have been free (in this case he would have been in custody at GTMO throughout this period, as an enemy combatant, regardless of whether the government had ever decided to prosecute him).
– In sum: “Although the delay of this proceeding was long and entirely the product of decisions for which the executive branch of our government is responsible, the decisions that caused the delay were not made for the purpose of gaining any advantage over Ghailani in the prosecution of this indictment. Two years of the delay served compelling interests of national security. 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.” (pp. 4-5)
– The Court also rejected speedy trial arguments under Fed. R. Crim. P. 48(b) (on the ground that it is coterminous with the 6th Amendment right), under Fed. R. Crim. P. 5 and 9 (on the ground that those deadlines start to run only upon criminal arrest), and under the Speedy Trial Act (18 USC 3161(c)(1)) (on the ground that the Act does not begin to run until the defendant’s first appearance before a judge). (p. 17 n. 66)