NY Judge Refuses to Dismiss Ahmed Ghailani Case

A federal judge in New York has denied former Guantanamo detainee Ahmed Ghailani's motion to dismiss and ruled the case can proceed to trial in federal criminal court. The opinion is here.

Ghailani is charged with complicity in the 1998 East Africa Embassy bombings. He was captured in 2004, transferred to a CIA secret prison overseas, where he allegedly was tortured. He was then transferred to Guantanamo, where he stayed for almost three years. In 2009, he was charged in federal court in New York and transferred. He argued that the five years he was held in custody violated his right to a speedy trial. [More...]

The opinion has some good quotes, but ultimately, the Court applies the principles adversely to him:

The Court understands that there are those who object to alleged terrorists, especially non-citizens, being afforded rights that are enjoyed by U.S. citizens. Their anger at wanton terrorist attacks is understandable. Their conclusion, however, is unacceptable in a country that adheres to the rule of law. Our nation decided over 200 years ago that the Speedy Trial Clause, like many provisions of the Constitution, applies to all, regardless of their citizenship or the crimes of which they are accused. Fidelity to our basic compact requires adherence to that principle. (my emphasis)

So why the adverse ruling?

The Court understands also that Ghailani is charged with crimes that took place twelve years ago, that he came into federal custody six years ago, and that he was held without being presented to answer those charges for just short of five of those years.

....None of the entire 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 Government acknowledged the delay was intentional:

The government acknowledges that it intentionally delayed the defendant's prosecution because it concluded that he had valuable threat information that could be acquired only by placing him into the CIA Program and that it then delayed it further by the military commission prosecution and the other activities described above. It contends, however, that these decisions were justified in all the circumstances and that the delays did no! violate Ghailani's right to a speedy trial.

The opinion also says the abuse he suffered in CIA custody isn't material because it wasn't of sufficient duration.

First, Ghailani does not claim that he was mistreated throughout the entire two year period during which he was in CIA custody. While details of what transpired are in the Supplement, it is appropriate to say here that the duration ofthe specific treatment to which Ghailani refers, i.e., the period during which he was subjected to enhanced interrogation techniques and other treatment that he has recounted in an affidavit that remains classified, was not of sufficient length to be material to this motion

Our prior coverage of Ghailani's case is here.

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  • Display: Sort:
    Sufficient Duration? (5.00 / 0) (#1)
    by squeaky on Tue Jul 13, 2010 at 02:00:30 PM EST
    I did not know that torture was only considered a mitigating factor if it met a certain time standard. What is considered a sufficient duration to undergo torture?

    Is torture a ground for dismissing a case? (none / 0) (#2)
    by nyrias on Tue Jul 13, 2010 at 02:18:32 PM EST
    If the defendant feels that he was subjected to illegal torture, he can always try to find a lawyer to sue those who tortured him, or try to convince a prosecutor to prosecute the torturer.

    Whether he is tortured or not, is irrelevant of whether he is guilty of the bombing, unless the prosecutor's case depends on confessions obtained under said torture.

    Is torture cruel? (none / 0) (#5)
    by Jack E Lope on Wed Jul 14, 2010 at 01:18:11 AM EST
    I've given up on thinking that the "unusual" standard might apply to torture...these days.

    If someone has already undergone cruel punishment in the course of their detention for trial, hasn't that tainted the prosecution of that crime?

    Or do we allow law enforcement to punish the accused at will, prior to conviction, without considering the accused?

    May as well issue extra broomsticks to prevent the spread of disease.


    No we don't ... (5.00 / 1) (#6)
    by nyrias on Wed Jul 14, 2010 at 09:32:03 AM EST
    but undergoing torture does not cancel the first crime that the torturee may have committed.

    It only tainted prosecution if the evidence is tainted.

    No one says we allow law enforcement to punish the accused. The remedy is to prosecute the torturer, NOT to ignore the original crime.


    I don't believe (none / 0) (#7)
    by jbindc on Wed Jul 14, 2010 at 09:50:43 AM EST
    The "prosecution" is tainted, but any evidence gained as a result of torture would be tainted. So, if defendant A confessed to a bombing (with all due process rights afforded), for example, immediately after he was arrested, but then was tortured to get confessions on other bombings, then only the evidence on the other bombings would be tainted and should be thrown out.

    An expert can correct me if I'm wrong.


    *if* the prosecution only rely on (none / 0) (#9)
    by nyrias on Wed Jul 14, 2010 at 10:01:21 AM EST
    confessions. There may be OTHER evidence such as wiretaps (with proper warrants), physical evidence ...

    The fundamental principle here is that torture does not make the original crime goes away, and it does not constitute "legal" punishment.

    In fact, there may be laws on the book to make the act of torture illegal, and a separate crime that can be prosecuted.


    ok, let me see if i have this right: (none / 0) (#3)
    by cpinva on Tue Jul 13, 2010 at 04:21:32 PM EST
    • he's accused of committing a crime overseas.

    • he's being tried in the united states.

    why is the united states the appropriate venue, for a crime committed elsewhere? shouldn't he be tried in the country he committed the crime in, or did i miss something, in between the cia kidnapping, and the torture?

    i am................confused.

    An embassy is considered sovereign (none / 0) (#4)
    by ding7777 on Tue Jul 13, 2010 at 05:17:34 PM EST

    I think you are correct (none / 0) (#8)
    by jbindc on Wed Jul 14, 2010 at 09:56:34 AM EST
    But cp's question in general is a valid one - one many are asking concerning many of the Gitmo prisoners, i.e. How do you afford constitutional rights (and subsequently hold trials in the US for) those who:

    1. are not US citizens and
    2. are accused of crimes that did not take place in the US

    That is part of the reason this Gitmo problem is so much more complicated than a campaign promise.