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Bringing the “Crazy Bastards” Home: Ghailani and his Slow, Torturous Wait for a Speedy Trial

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Simply stated, the American people do not want to close Guantanamo Bay, which is an isolated, military-controlled facility, to bring these crazy bastards who want to kill us all to the United States.

                    – Senator Lindsay Graham

I.          Crossruffing

Reviving a model created by President Franklin D. Roosevelt’s 1942 order authorizing a military commission to try eight Nazis apprehended in the United States,  President George W. Bush signed  an order on November 13, 2001 to turn a former U.S. coaling and refueling base in Guantanamo Bay, Cuba into a military jail for prisoners of the War on Terrorism.  Besides housing prisoners, there were to be military tribunals and swift justice.  “Two out of three ain’t bad.”  President Bush did get his jail and his tribunals, but justice has been anything but swift.  Twelve years later, seven detainees out of 779 men held at Guantanamo have been convicted and sentencedAhmed Khalfan Ghailani is the only detainee transported to the US to face trial in federal court.  His story highlights just some of the difficulties inherent in this transfer.

Professor Stephen Vladeck describes the process of what happens to military detainees who are prosecuted in civilian courts as “cross-ruffing.”  The government interrogates terrorism suspects under military detention at the point of capture.  The CIA holds them long enough to extract necessary intelligence information and then suspects are later prosecuted in the civilian justice system without necessarily being subject to the same criminal procedure constraints on detention prior to trial of the civilian justice system.  The government minimizes its weaknesses with this transfer and prosecutors take advantage of it.

This paper will briefly give a factual and procedural account of United States v. Ghailani, in Part II,  critically examine the reasons for the delay of Ghailani’s trial in Part III; and briefly concludes with just what happened to Ghailani in Part IV.

II.        Background

On August 24, 2013, the Second Circuit, in an opinion written by Judge José A. Cabranes, affirmed the Southern District of New York’s conviction on a single conspiracy charge of Ahmed Ghailani.  Ghailani was Osama bin Laden’s former cook and bodyguard who had “procured [for his co-conspirators] a number of items necessary for building an explosive device on the back of a truck.”  Ghailani was indicted in absentia in December 1998 for conspiracy and 281 other charges relating to the August 7, 1998 simultaneous bombings of the United States embassies in Nairobi and Dar es Salaaam, Kenya.  The two bombings resulted in the death of 224 people and injuries of thousands more.  Ghailani was captured by the CIA in Pakistan on July 25, 2004, detained as an “enemy combatant,” and subjected to “enhanced” interrogation techniques over the next two years “to obtain critical intelligence.”  He was transferred to the Department of Defense’s custody in September 2006.  Ghailani was given a Combatant Status Review Tribunal hearing at Guantanamo that confirmed his classification as an “enemy combatant.”  In 2008, President Barack H. Obama suspended all military commission proceedings, including Ghailani’s.  In 2009, Ghailani’s third habeas corpus petition filed in the Southern district of New York was granted and arraigned on the original 1998 indictment of 282 counts.  On January 25, 2011, Ghailani was convicted “on one count of conspiring to destroy United States buildings and property, in violation of 18 U.S.C. § 844(f), (n)” and was sentenced to life in prison and to pay nearly $34 million in restitution.

On appeal, Second Circuit upheld the verdict and sentence, holding:

(1) In the circumstances presented here, the District Court did not err (or “abuse its discretion” as that term is properly understood) in determining that the nearly five-year delay between the defendant’s capture and his arraignment, during which time he was interrogated as an enemy combatant and detained at Guantanamo Bay, did not constitute a violation of the Speedy Trial Clause of the Sixth Amendment.

(2) The District Court did not err either in charging the jury with a conscious avoidance instruction or in formulating that instruction.

(3) The defendant’s sentence of life imprisonment, based on a conviction for conspiring to destroy United States buildings and property and directly or proximately causing the deaths of 224 people, was neither procedurally nor substantively unreasonable.

III.       Speedy Trial

The Second Circuit analyzed the Ghailani record for the four factors from the Supreme Court’s decision in Barker v. Wingo,

that must be considered in analyzing whether a defendant’s constitutional right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay; (3) whether the defendant asserted his right in the run-up to the trial; and (4) whether the defendant was prejudiced by the failure to bring the case to trial more quickly.

The first Barker factor is a threshold test.  The government did not contest that a delay of five years was “presumptively prejudicial.”  The trial court evaluated the reasons for delay by dividing this period in to two different periods:  his 23 months in CIA detention and his 37 months in Guantanamo Bay.  The trial court found

the decision to place Ghailani in the CIA Program was made in the reasonable belief that he had valuable information essential to combating Al Qaeda and protecting national security and because the evidence show[ed] that the government had reason to believe that this valuable intelligence could not have been obtained except by putting Ghailani into that program and that it could not successfully have done so and prosecuted him in federal court at the same time.

The Barker test does account for the public interests in favor of delay.  The Supreme Court has found that “[i]t is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”  The government caused the three year delay following his CIA detention in Pakistan and transfer to Guantanamo. The appellate court held this delay against the government in the Barker balancing test.  The Second Circuit adopted the trial court’s finding that because Ghailani could not be faulted for not demanding a trial sooner than he did nor could the government be faulted for ignoring such demands, the invocation of this right as a factor does not cut against either side.  The fourth Barker factor, whether the defendant was prejudiced by the failure to bring the case to trial more quickly, deserves a closer look that the “rather cursory analysis” given to it by the Second Circuit Court.

A.        Prejudice

The trial court treated Ghailani like a regular civilian case.  Any physical or emotional abuse he may have received at the hands of the CIA did not prejudice his case for the purposes of a Barker analysis because his CIA detention was not related to his pretrial detention.  The court removed his two-year CIA detention from its Barker analysis. The trial court also then found the subsequent three year period as non-prejudicial.  Ghailani identified no witnesses that could not testify because of the delay. Also, he did not any suffer anxiety over a looming death penalty during the course of the delay as the government did not pursue a death sentence.

On appeal, Ghailani argued that the trial court should have considered the prejudiced created by his treatment by the CIA in Pakistan. The “District Court concluded, however, that whatever treatment Ghailani endured at the hands of the CIA was not caused by the delay in his trial and therefore not relevant to the Barker analysis.  The circuit court agreed.

The Supreme Court has consistently emphasized three interests of a defendant that may be prejudiced by trial delay: oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the accused’s defense will be impaired by dimming memories and loss of exculpatory evidence.

Ghailani argued he suffered “oppressive incarceration” before his trial ever took place.  The techniques employed by the CIA were “designed to psychologically dislocate the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist the United States government’s efforts to obtain critical intelligence,” and it worked.  The circuit court defined “pretrial incarceration” differently.  The CIA detention, although it occurred prior to Ghailani’s trial, did not count as pretrial detention because the CIA investigation was independent of the trial itself and not a prelude to Ghailani’s trial.  Just as federal courts do not count state incarceration prior to federal trials as pretrial incarceration in speedy trial analyses, the CIA would have detained Ghailani for intelligence gathering purposes regardless of his impending trial.  The Second Circuit court held the Speedy Trial Clause protects against the prejudice of trial delays, not harmful interrogation.

This kind of doublespeak and compartmentalization on the part of the government leads to an interesting result.  By finding that Ghailani’s trial was not delayed because of the CIA detention, the court effectively ignores the fact that, along with his military detention in Guantanamo, the CIA detention was the delay in Ghailani’s trial.  Without Ghailani’s involvement in the conspiracy he was convicted of, he may never have been a high-value target for the CIA.  There would have been less reason to detain Ghailani or interrogate him using “enhanced” techniques to obtain valuable intelligence.  The court splits Ghailani’s detention into two separate periods:  one period of pre-pretrial CIA detention for reasons of national security necessity and another period of pretrial military detention all of which took place before the beginning of his civilian trial.  The courts, of course, do not address what happens when the government attempts to introduce into civilian court evidence obtained by CIA interrogation.

This is not the first time five years has been ruled speedy.  However, it is the first time a defendant’s first 23 months of a five-year delay was in CIA custody before being brought before a civilian court.  In the transfer between the two paradigms of justice, military and civilian, the government managed to round off enough rough edges around the square peg that is Ghailani’s military case to make him fit into the round hole of a civilian court.  This decision tells us nothing about the limits of the government to detain and prosecute terrorism suspects, much less how to deter potential abuses “crossruffing” may engender going forward.  The courts have yet to identify any relief or remedies to deter governmental abuse.  The closing of Guantanamo also offers no solution to cases like Ghailani as it would not have affected his CIA detention and interrogation at the point of capture. This conversation continues even if the jailer chooses to give up its jail.

IV.       Conclusion

The Second Circuit successfully applied the Sixth Amendment Speedy Trial Clause in Ghailani by ignoring the unique circumstances that brought Ahmed Ghailani into the civilian courthouse in the first place, namely his CIA detention and “enhanced” interrogation.



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