The result of a hearing Monday in the case of al-Qaida confederate Ahmed Khalfan Ghailani, who is accused of helping to blow up two U.S. embassies in Africa, could have far-reaching implications for the federal government's decision to try the alleged 9/11 terrorists in the civilian justice system in New York.
Judge Lewis A. Kaplan will hear arguments Monday on whether or not the indictment against Ghailani in United States v. Hage, 98 cr. 1023 (S-10), should be dismissed on speedy-trial grounds, a decision that could serve as a template for the pretrial maneuvering in the controversial case against Khalid Sheikh Mohammed and four others for the Sept. 11, 2001, hijacking of four airliners and attacking New York City and Washington, D.C.
Ghailani's attorneys say their client's case is unique in one respect -- he was arrested in Pakistan in 2004 and then detained and interrogated at CIA "black sites" before being sent to the Guantanamo Bay detention facility on Sept. 6, 2006, for trial by military commission, almost eight years after he had already been indicted in the Southern District of New York for the Aug. 7, 1998, bombings of the U.S. embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, that killed 224 people.
On the surface, the precedent for Ghailani's trial would seem to be the 2001 convictions of four co-defendants in the Southern District in the same crimes.
But there is a critical difference between the two cases. The four men who were convicted in the embassy bombings were quickly arrested and brought to New York for trial before Judge Leonard Sand. By contrast, Ghailani's capture came in a post-9/11 world, a point the prosecutors strongly emphasize in their December briefs opposing a speedy-trial dismissal of the charges against Ghailani.
"Unlike his co-defendants who were previously tried in this case, the defendant, a foreign national, was captured abroad after spending six years as a fugitive from justice; while working directly with top al Qaeda terrorists; as the United States was waging a difficult war against al Qaeda; and following a terrorist attack by al Qaeda on American soil that left almost 3,000 Americans dead," prosecutors from the Southern District U.S. Attorney's Office say in their briefs.
Ghailani, they argue, was "captured during a war," when "the government had shifted dramatically toward intelligence-gathering as the primary means to prevent such an attack," and so the United States "justifiably opted to initially treat the defendant as an intelligence asset," and hold him as an enemy combatant.
"This was done, simply put, to save lives," said the prosecutors, who will likely make the same argument when Mohammed and his 9/11 co-defendants arrive in New York for trial.
But it is what happened during the time Ghailani was held as an enemy combatant that defense lawyers argue justifies dismissing the indictment on speedy-trial grounds, according to their memo filed in November.
Ghailani's attorneys, Gregory E. Cooper and Michael K. Bachrach, both solo practitioners, and Peter Enrique Quijano of Quijano & Ennis, claim that once Ghailani was arrested during a gun battle with Pakistani authorities on July 24, 2004, and transferred to the CIA's secret prisons, he was subjected to enhanced interrogation techniques. The lawyers in their memo describe their client's treatment as "systematic physical and psychological abuse" in violation of the Universal Declaration of Human Rights and the Geneva Convention.
The defense lawyers also claim the government cannot get away with the delay because of the CIA's effort to turn Ghailani, 38, into an intelligence asset, a move the defense characterized as "a political decision with consequences."