A man accused of conspiring to bomb U.S. embassies in Africa in 1998 will not be allowed to keep the military lawyers assigned to him when he was imprisoned at Guantanamo Bay.
Southern District Judge Lewis A. Kaplan ruled Wednesday that the rights of Ahmed Khalfan Ghailani were not violated by the decision of the Secretary of Defense to reassign the two lawyers designated to represent him when he was preparing for trial before a military commission.
Ghailani was the first Guantanamo detainee to be transferred to the civilian justice system for trial. His transfer on June 9 was followed last week with the announcement by U.S. Attorney General Eric Holder that Khalid Sheikh Mohammed and four others would be sent to New York for trial in the terror attacks of Sept. 11, 2001.
Once Ghailani was brought to New York, he was assigned three civilian attorneys. But he told the court he wanted to keep the military lawyers who had been helping him: Marine Colonel Jeffrey P. Colwell and Air Force Major Richard B. Reiter.
Ruling in United States v.Ghailani, 98 Crim. 1023, Kaplan Wednesday denied Ghailani an injunction blocking the Secretary of Defense from reassigning Colwell and Reiter and allowing them to participate in his defense when he goes on trial next year.
Kaplan said in his 32-page ruling that Ghailani "is entitled to, and is receiving, representation of appointed counsel at public expense. He is not entitled to choose particular government-paid counsel, military or civilian, and does not have a right to the continued services of previously appointed counsel."
Ghailani, a Tanzanian national, is charged with 286 counts that include a broad conspiracy with Osama bin Laden and al-Qaida to kill Americans anywhere in the world and the murder of 224 people on Aug. 7, 1998, in the U.S. embassy bombings in Dar es Salaam, Tanzania and Nairobi, Kenya.
He was taken into custody in Pakistan in 2004 and then held and interrogated by the CIA in a location outside the United States until his transfer to Guantanamo in 2006, where he was assigned Colwell and Reiter as counsel for his trial on the Tanzanian bombing.
When his transfer to New York was set, the two officers were allowed to remain with the defense for the transition to civilian counsel -- solo practitioners Gregory E. Cooper and Michael K. Bachrach and Peter Enrique Quijano of Quijano & Ennis.
The civilian prosecutors in New York, Southern District Assistant U.S. Attorneys David Raskin, Michael E. Farbiarz and Ross E. Morrison, as well as military lawyers David Brash and Robert E. Easton of the Department of Defense's Office of Litigation Counsel, argued that Ghailani had no right to keep the military officers on his defense team. They also argued that Kaplan lacked jurisdiction to consider the claim, and, even if he had jurisdiction, must dismiss the case under the doctrine of non-justiciability.
Colwell and Reiter were informed by the Pentagon on Sept. 1 that they would not be allowed to remain on the case and Ghailani asked Kaplan to declare that their removal would violate his right to due process under the Fifth Amendment and his Sixth Amendment right to counsel.
In his opinion, Kaplan first determined he had ancillary jurisdiction over the claims and then turned to the central issue at the hearing: whether there were "constitutional and prudential limitations on the exercise of federal judicial power" that would render the case non-justiciable.
The judge found both that the "criteria for general justiciability are satisfied" and that the doctrine of separation of powers did not block consideration of the claims because Ghailani's motion did not ask the court to interfere with the military and decide the assignment of personnel.
Instead, the motion "asks only that [the court] decide the legal effect that these military decisions would have on the defendant, a function to which it is well-suited," and involves an inquiry which would "imply no disrespect for the staffing decision made by a coordinate political branch."
"Defining and protecting constitutional rights is a core function of the judiciary and one that this court cannot and should not abdicate," he said.