LEWIS A. KAPLAN, District Judge.
Table of Contents Facts ...........................................................................520 A. Al Qaeda and the 1998 East African Embassy Bombings ...................520 B. The Indictments .......................................................521 C. Ghailani's Years at Large (1998-July 2004).............................521 D. Ghailani's Capture and Initial Detention...............................522 E. Ghailani's Detention in CIA Custody [redacted].........................522 F. Detention in Department of Defense Custody and Prosecution Before a Military Commission (September 2006-June 2009).......................523 G. Civil Litigation.......................................................525
H. Transfer to the Southern District of New York and Prosecution in this Court................................................................526 I. This Motion............................................................526 Analysis.........................................................................527 I The Right to a Speedy Trial ...............................................527 II The Barker Factors.........................................................528 A. The Length of the Delay.................................................529 B. Invocation of the Right.................................................529 C. Prejudice ..............................................................531 D. Reasons for the Delay...................................................533 1. The CIA Period-[redacted]............................................535 (a) The Abuse Argument...............................................535 (b) Alleged Dissipation of Intelligence Value........................535 2. The Guantanamo Period—September 2006 through June 2009 ........536 (a) The Enemy Combatant Rationale....................................536 (b) The CSRT Hearing.................................................537 (c) The Military Commission Investigation and Prosecution............537 III Balancing the Barker Factors...............................................540 Conclusion.......................................................................542
Ahmed Khalfan Ghailani, allegedly a member of the Al Qaeda terrorist organization, is charged with complicity in the 1998 bombings of two United States embassies in east Africa in which 224 people were killed and over a thousand injured. He and others were indicted for that offense in 1998. This Court issued arrest warrants. Several of Ghailani's co-defendants in fact were arrested years ago, tried, convicted and sentenced to lengthy prison terms.
Ghailani remained at large for years. In 2004, he was captured by a foreign nation and soon transferred to the exclusive custody of the Central Intelligence Agency ("CIA"), which interrogated him for roughly two years at one or more secret sites in an effort to obtain information for use in defending the United States and its interests. The CIA then turned Ghailani over to the Department of Defense ("DoD"), which detained him at the United States naval base at Guantanamo Bay for almost three more years.
In June 2009, following a change of policy, the executive branch transferred Ghailani to this district for trial on the 1998 indictment. Ghailani now moves to dismiss the indictment. He argues that the United States government, by detaining him for nearly five years in CIA and DoD custody before presenting him for trial, deprived him of his right under the Sixth Amendment to a speedy trial. Before proceeding to that contention, however, it is appropriate to consider the purpose served by this prosecution and the reason the speedy trial analysis cannot be avoided.
This case arises against the background of Ghailani's detention as an "enemy combatant"—a person who was part of or supported forces hostile to the United States or coalition partners abroad that engaged in armed conflict against the U.S. The Supreme Court has made clear that the executive branch, when authorized by Congress, has the power to detain even U.S. citizens who are enemy combatants for the duration of those hostilities.
Prisoners detained as enemy combatants may be held only for the purpose of preventing them from resuming hostilities.
The implication of these principles is clear. Absent conviction by a court for a criminal offense or by a military commission for a violation of the law of war or other offense triable in such a forum,
That said, it remains to consider why an enemy combatant charged with a criminal offense in an American court enjoys the protection of the Speedy Trial Clause and
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.
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. Some therefore may think that no trial commencing this long after Ghailani first came into federal custody possibly could be "speedy." But it is not that simple.
The Sixth Amendment guarantees "a speedy ... trial," but it nowhere defines "speedy." The right "is a more vague concept than other procedural rights ... [and i]t is ... impossible to determine with precision when [it] has been denied."
This Court has considered and weighed those facts. Among them are these. 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 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.
A. Al Qaeda and the 1998 East African Embassy Bombings
Al Qaeda is a terrorist organization founded and led by Usama Bin Laden. Under his leadership, the organization significantly expanded its network, its resources, and its mission in the 1990s, calling on followers to take increasingly radical steps against the west and, particularly, the United States. Whereas Bin Laden's earlier fatwas had targeted U.S. military forces in the Middle East, he expanded the scope of his appeal in February 1998, calling for the deaths of any and all Americans—military or civilian— anywhere in the world.
B. The Indictments
Ghailani first was indicted on December 16, 1998. The indictment charged the existence of a broad conspiracy by Usama Bin Laden and others to wage a campaign of terror against the United States.
C. Ghailani's Years at Large (1998-July 2004)
While Ghailani was still at large, the government contends, he worked closely with high-level Al Qaeda members during the years following the bombings, first as a cook and bodyguard for Usama Bin Laden and later as a document forger.
On September 11, 2001, Al Qaeda attacks on the World Trade Center and the Pentagon, and an additional thwarted attack, killed roughly 3,000 people. The United States' approach to combating international terrorism changed significantly. One week later, Congress authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 . . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
D. Ghailani's Capture and Initial Detention
By the time Ghailani was captured abroad in July 2004,
E. Ghailani's Detention in CIA Custody [redacted]
Ghailani was detained and interrogated by the CIA outside of the United States for roughly two years. Many details of the CIA Program and its application to specific individuals remain classified.
An individualized interrogation program was developed and approved for each detainee based on the unique personal, physical, and psychological characteristics of that individual.
F. Detention in Department of Defense Custody and Prosecution Before a Military Commission (September 2006-June 2009)
In September 2006, Ghailani was transferred to DoD custody at Guantanamo Bay. It perhaps is useful to place that transfer and subsequent events in their historical context.
In the wake of the September 11, 2001, attacks, the executive branch determined that it would detain captured persons suspected of being unlawful combatants at Guantanamo. The first reportedly were taken there in January 2002
Litigation concerning the legality of that detention and the conditions of confinement began almost immediately.
As the CSRT process applied only to Guantanamo detainees, it was not available to Ghailani while he was in CIA custody. In late 2005, however, reports of the hitherto secret CIA detention sites began to appear in the press
The transfer to Guantanamo made Ghailani eligible for review of his enemy combatant status in a hearing before a tribunal of three commissioned officers. The governing procedures entitled him to the assistance of a non-lawyer personal representative who was entitled to see the government's evidence and required to consult with Ghailani. The representative, however, was prohibited from informing Ghailani of the content of any classified material.
Ghailani requested a status review, and his hearing took place on March 17, 2007. It lasted for 44 minutes.
At about the same time—late February or early March 2007—the Office of Military Commissions began to investigate the question whether Ghailani could be
Military counsel were appointed for Ghailani in connection with the military commission charges on April 24, 2008.
There is no evidence that Ghailani's presence in Guantanamo was required or even convenient in connection with the military commission investigation and proceedings—or, for that matter, that he even was informed that they were taking place—at least until charges were sworn against him and perhaps even until military defense counsel were appointed.
G. Civil Litigation
Over the following year—concurrent with the military commission prosecution—Ghailani and his attorneys, both military and civilian, filed a number of habeas corpus petitions and other prayers for relief in both the military commission and various federal courts.
On May 29, 2008, Ghailani, through a civilian lawyer, filed a petition in the District of Columbia Circuit challenging the result of his CSRT hearing.
Ghailani first referred to this right in a clear manner in a pro se habeas corpus petition filed in this Court on March 9, 2009, just weeks before he was transferred here for trial.
H. Transfer to the Southern District of New York and Prosecution in this Court
After taking office in January 2009, the President suspended the military commissions.
I. This Motion
On November 16, 2009, Ghailani moved to dismiss the indictment on the ground that the nearly five-year delay between when he came into exclusive U.S. custody and his presentation in this Court for prosecution violated his constitutional right to a speedy trial.
Ghailani acknowledges that the government had the authority to detain and question him in the interests of national security, notwithstanding the pending indictment in this case, but he argues that doing so foreclosed the possibility of later prosecuting him on the 1998 indictment. In other words, 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. The necessary consequence of its decision to delay the criminal prosecution, according to Ghailani, is that the indictment against him now must be dismissed.
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 not violate Ghailani's right to a speedy trial.
I The Right to a Speedy Trial
The roots of the Speedy Trial Clause reach extremely deep into our constitutional history. A right to speedy justice was recognized as far back as the Assize of Clarendon (1166) and the Magna Carta (1215).
When this country broke away from England, it adopted this longstanding English right. We incorporated it into several of the earliest state constitutions and the Bill of Rights, giving it pride of place as the first criminal process right listed in the Sixth Amendment.
II The Barker Factors
The first of the enumerated Barker factors serves as a sort of "double enquiry"
Here, the government concedes that the delay in prosecuting Ghailani on this indictment was sufficiently long to trigger the Barker analysis.
A. The Length of the Delay
The constitutional right to a speedy trial attaches when a defendant is arrested or indicted, whichever comes first.
First, even longer periods have been found not to violate defendants' speedy trial rights when they nonetheless were reasonable in light of other factors.
Second, different portions of the nearly five year delay occurred for different reasons. Depending upon the assessment of these reasons and other circumstances, the length of delay chargeable against the government for purposes of this motion may be less than the full five year period.
B. Invocation of the Right
In practice, a defendant's demand for or failure to demand a speedy trial tends not to influence the analysis strongly except at the extremes. That is, courts have tended to discount a defendant's belated demand for a speedy trial if convinced that it was opportunistic, "raising his speedy trial right when it suited his interests but not when . . . delay benefitted him."
The reason for the relative unimportance, except in unusual circumstances, of a defendant's failure to invoke the right to
The government here argues that Ghailani's invocation of his right to a speedy trial came late and was disingenuous. It contends that he knew of the indictment before he was in U.S. custody, made no effort before or for years after his capture to seek a trial on the federal charges, and invoked his right only belatedly. It even goes so far as to urge that Ghailani adopted this stance because, for most of his captivity, he thought it advantageous to be tried in a military commission rather than federal court.
The government's argument is unpersuasive. While Ghailani did not clearly invoke his right until recently,
First, while a declaration by an FBI agent assigned to the embassy bombings case indicates that Ghailani likely knew that he was wanted by the United States during at least part of the period in which he was at large,
Nor can Ghailani be taxed with a failure to demand a speedy trial while he was in CIA custody. The government concedes that Ghailani could not reasonably have been expected then to have invoked the right "because he did not have a meaningful opportunity to" do so.
The facts of course are somewhat different with respect to Ghailani's time in DoD custody. The indictment was mentioned in his presence at his CSRT hearing on March 17, 2007, so he became aware of it no later than that date.
In the last analysis, then, Barker's demand factor does not cut one way or the other in this case. Ghailani cannot be faulted for having failed to invoke his right to a speedy trial earlier than he did. Nor can the government be criticized for ignoring demands for a trial.
Within the Barker framework, prejudice refers to each individual defendant's personal interests in securing a speedy trial. It "should be assessed in the light of the interests of defendants that the speedy trial right was designed to protect[:]. . . (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired" by the passage of time.
Ghailani claims that he was prejudiced by delay in this prosecution in two respects:
With respect to the former, Ghailani says that he was harmed physically and psychologically in the CIA Program, particularly by enhanced interrogation techniques to which he was subjected. He contends, among other things, that he "may be so damaged as a result of being subjected to the [CIA Program] that it might affect his ability to assist in his defense."
There is no sufficient basis for concluding that any physical mistreatment that may have occurred compromised these values. Its objective was to gather intelligence, not evidence for use in this criminal case.
Also unpersuasive is Ghailani's claim that he was so affected psychologically by the alleged CIA mistreatment that his ability to assist in his defense has been impaired. To be sure, a clinical psychologist retained by Ghailani testified in another context
Ghailani claims also that he was prejudiced by the delay of this prosecution in a more conventional way. He asserts that it has impaired his ability to investigate and prepare an effective defense because many potential witnesses now are unavailable or dead.
There is one final consideration with respect to prejudice, albeit not one raised by Ghailani. The indictment in this case includes offenses punishable by death. While the government announced on October 2, 2009 that it would not seek the death penalty in this case,
It is not clear on the existing record when Ghailani became aware that a conviction in this case might have resulted in the death penalty, although it is reasonable to assume that he learned of this some time after military counsel were appointed in April 2008 to represent him before the military commission. At that point, however, the military commission charges against Ghailani also included offenses that could have been punished by death. There appeared to be very little chance that Ghailani ever would be prosecuted in this Court. Accordingly, until October 2008, when the convening authority decided not to seek capital punishment in the military commission, the far more immediate threat to his life was the military commission proceeding, not this case.
The situation changed following the 2008 election. The President suspended the military commission prosecution in January 2009. That raised the prospect of prosecution in this Court, where a death sentence remained a technical possibility. It was, however, quite unlikely that the government would seek a death sentence here in light of the October 2008 decision not to seek death before the military commission. In the event, the government, not long after Ghailani was transferred here, said that it would not seek the death penalty in this case either. Accordingly, the period during which this case could have been the most likely source of any concern about a death sentence was brief. In any case, while the Court takes seriously any concern caused by any risk of a death sentence, the objective fact is that the risk of a death sentence in this case once the government abandoned any request for that penalty in the military commission proceeding was far more theoretical than real. This perhaps is reflected in Ghailani's failure to raise this point.
In sum, Ghailani has failed to establish any substantial prejudice to the interests protected by the Speedy Trial Clause.
D. Reasons for the Delay
The reason for delay looms large in any speedy trial analysis and particularly so here. In Barker, the Supreme Court instructed as follows:
It further emphasized bad faith as a factor in this consideration, stating that "it is improper for the prosecution intentionally to delay `to gain some tactical advantage over [defendants] or to harass them.'"
As an initial matter, there is no evidence that the government ever acted in bad faith to gain a tactical advantage over or to prejudice Ghailani with respect to his defense of this indictment. It argues, moreover, that the entire delay was justified because it was attributable to (1) the protection of national security, first to gather intelligence from Ghailani while he was in CIA custody and then to prevent him from resuming hostilities against the United States as an enemy combatant by detaining him at Guantanamo, and (2) the pendency of other proceedings at Guantanamo, specifically the CSRT process and the military commission prosecution.
1. The CIA Period [redacted]
The government has offered credible evidence indicating that 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.
Ghailani essentially concedes the government's authority to detain him and to conduct an appropriate interrogation for intelligence purposes.
(a) The Abuse Argument
The contention that the entire period of Ghailani's interrogation by the CIA was unjustified, for speedy trial purposes, because the CIA tortured and mistreated him is unpersuasive for two reasons.
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 of the 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.
Even if that were not so, the Speedy Trial Clause, like other provisions of the Bill of Rights, requires a causal connection between the government conduct complained of and the alleged infringement of the values it protects.
(b) Alleged Dissipation of Intelligence Value
Ghailani's second argument also is unavailing. The government has offered evidence that Ghailani continued to be of
2. The Guantanamo Period—September 2006 through June 2009
The government seeks to justify the delay of this case during the Guantanamo period on somewhat different bases. It argues that Ghailani was held at Guantanamo to prevent him from resuming hostilities against the United States as an enemy combatant, just as captured enemy soldiers are held during conventional warfare to prevent them from returning to the field of battle. In addition, it argues that the CSRT hearing, which took place on March 17, 2007, and the military commission investigation and prosecution of Ghailani were additional valid reasons for not prosecuting him here during significant parts of this thirty-three month period.
(a) The Enemy Combatant Rationale
The fact that Ghailani was detained as an enemy combatant is the only justification offered for the executive branch's failure to present Ghailani for trial on this indictment from the date of his arrival in September 2006 until the CSRT hearing in March 2007.
No one denies that the United States has a valid interest in preventing Ghailani from engaging in hostilities against the United States. But the government's contention that this important interest justified the delay of this prosecution during those months is unpersuasive.
Ghailani was produced in this Court a year ago to face these criminal charges. Since then, he has been held at the Metropolitan Correctional Center, where many other accused terrorists—including others who have been convicted in this Court for involvement in the same embassy bombings with which Ghailani is charged— have been held securely for years. He has been no more able to engage in hostilities against the United States while in the custody of the Bureau of Prisons pending trial on this indictment than he was at Guantanamo in the custody of the DoD. He could have been brought to this Court in 2006 or any subsequent date to face this 1998 indictment and, at the same time, prevented from engaging in hostilities against this country.
Nor is the government obliged to detain an incarcerated defendant who is awaiting a criminal trial in the district or city in which the trial will take place. While a defendant who is in custody in anticipation of a criminal trial often is held adjacent to or near the courthouse in which the trial will take place, that usually is a matter of convenience and economy, rarely of necessity. To be sure, a criminal defendant has a right to be present at the initial appearance, the initial arraignment, the plea and the trial.
This case illustrates the point. Ghailani's initial appearance, arraignment and plea all took place on a single day. While it is customary for defendants to attend all or most other pretrial court proceedings,
Barker teaches that even "neutral reason[s]" for delay such as "negligence or overcrowded courts should be weighted" against the government, albeit "less heavily" than "deliberate attempt[s] to hamper the defense," "since the ultimate responsibility for such circumstances must rest with the government rather than the defendant."
(b) The CSRT Hearing
The government next argues that the CSRT proceeding justified part of the delay. This argument does not withstand analysis.
The CSRT hearing took place on March 17, 2007. There is no evidence that Ghailani's presence in Guantanamo was required, at least for any significant period, to prepare for that hearing. As far as the record discloses, he spoke with his personal representative in advance of the hearing and then was brought into the hearing, attended for 44 minutes, and departed. The CSRT proceeding accounted for no material part in the delay of this prosecution. In any case, the government is responsible for any brief delay it caused.
(c) The Military Commission Investigation and Prosecution
The lead military commission prosecutor states that the investigation, which consisted in significant part of reviewing the trial and investigatory record from the previous embassy bombings trial in this Court, began
The government argues that the delay during this entire period was justified by that investigation and prosecution. It relies on cases that have found that delays longer than the year-long investigation and preparation at issue here did not count against the government where they were attributable to the government's need to investigate and collect evidence.
The applicability of the authorities the government relies upon to the unique facts of this case is questionable. The cases rely, in the main, upon (1) the principle of dual sovereignty, which requires federal respect for state proceedings and vice versa,
Just as the executive branch was entitled immediately following conclusion of the CIA interrogation to detain Ghailani at Guantanamo as an enemy combatant, it was entitled to make the judgments it did as to the most appropriate forum in which to prosecute Ghailani. By the same reasoning, however, it is responsible for the delay that those judgments caused.
This, if anything, is even clearer with respect to the period from early 2007 until March 2008 when the military prosecutor conducted the investigation of possible military commission charges. There is no evidence that Ghailani's presence at Guantanamo was required or even convenient for the conduct of that investigation. Indeed, there is no evidence he even knew that it was taking place. For all the record discloses, the military prosecutor could have conducted exactly the same investigation regardless of where Ghailani physically was located. The prosecution in this Court could have proceeded in parallel with that investigation.
* * *
In sum, the only reason for the delay of this prosecution during the period September 2006 through late February or early March 2007 was the fact that the executive branch decided to hold Ghailani at Guantanamo and not to proceed with this prosecution. The government's justification for the roughly one-year delay from February or March 2007 until March 28, 2008 is weak. The time during which the military commission proceedings were pending, March 28, 2008 until January 2009, also weighs against the government because the government and not the defendant was responsible for it. The same is true with respect to the interval from the suspension of the military commission prosecution in
III Balancing the Barker Factors
The delay in this prosecution from the moment Ghailani came into U.S. custody until he was presented in this Court, almost five years, was long. As we have seen, however, that period was not an undifferentiated whole and its length in any case would not alone be dispositive.
The CIA interrogated Ghailani for the first two years in the reasonable belief that Ghailani had important intelligence information. While some of the methods it widely is thought to have used have been questioned and, to whatever extent they actually were used, might give rise to civil claims or even criminal charges,
"It is `obvious and unarguable' that no governmental interest is more compelling than the security of the Nation."
The considerations affecting the remaining delay of almost three years present a somewhat closer case. None of that delay was attributable to a quest for tactical advantage. Accordingly, in the Barker lexicon, the reason for each component of it was "more neutral"
Barker "necessarily compels courts to approach speedy trial cases on an ad hoc basis."
In this case, Ghailani would have been detained as an enemy combatant throughout
Ghailani has been aware since at least April 2008 and perhaps earlier that he has been subject to criminal charges. Moreover, it may be inferred, even in the absence of direct evidence, that this has caused some anxiety, particularly during the period in which there was some possibility that Ghailani faced the possibility of capital punishment in the event of a conviction in this Court. Nevertheless, the anxiety that ordinarily would be felt by one facing criminal charges must be discounted to a material degree on the unusual facts of this case. Ghailani's status as an enemy combatant always has made it uncertain whether he ever will be freed, regardless of the outcome of the criminal case. The portion of the delay during which capital punishment in this case was a possibility was relatively brief and the risk considerably more theoretical than real. In consequence, the delay the government caused here did not subject Ghailani to any greatly added anxiety by prolonging his status as a defendant.
Nor does the trial prejudice aspect of the analysis help Ghailani. While a particularized showing of prejudice is not a prerequisite to finding for a defendant under Barker, evidence of actual prejudice is quite important unless the other factors weigh heavily against the government.
Considering all of the circumstances, particularly the lack of significant prejudice of the sort that the Speedy Trial Clause was intended to prevent, the delay in this case did not materially infringe upon any interest protected by the right to a speedy trial. The Court therefore holds that Ghailani's Sixth Amendment right to a speedy trial has not been violated.
For the foregoing reasons, the defendant's motion to dismiss the indictment due to the denial of his constitutional right to a speedy trial [DI 823] is denied. The government is entitled to attempt to hold Ghailani accountable in a court of law for his alleged complicity in the murder of 224 people and the injury of more than 1,000 others.
The Court expresses its thanks to counsel for amici, who were invited to supplement the efforts of counsel on both sides and thereby to assist the Court in resolving this unusual issue.