Lawyers for accused embassy bomber Ahmed Khalfan Ghailani told a federal judge Monday that the government should pay the full price for detaining and mistreating their client at secret prisons and at Guantanamo Bay.
Telling Southern District of New York Judge Lewis A. Kaplan the indictment against Ghailani should be dismissed on speedy trial grounds, defense attorneys Peter Enrique Quijano and Michael K. Bachrach said the government's claim that national security demanded the extended detention and interrogation of Ghailani could not be justified.
Calling it "perhaps the most egregious violation in the history of speedy trial jurisprudence," Quijano said that shortly after his client was taken to a CIA "black site" for interrogation in 2004 he was "emotionally, physically and psychologically unable to resist providing them with all of the information."
Assistant U.S. Attorney Michael Farbiarz countered that the government had a legitimate reason to interrogate Ghailani both before and after he was sent to Guantanamo on Sept. 6, 2006 -- taking the fight to al-Qaida and preventing attacks.
He said the government obtained "actual, useful actionable intelligence during that period" and that the defense claim that he and fellow prosecutors were "waving a magic wand" by invoking national security to trump constitutional guarantees was "just not true."
Farbiarz also argued that Ghailani's decision not to demand a speedy trial was fatal to his motion to dismiss, and that it was done for "strategic" reasons. He said that, even as civilian lawyers were making motions on Ghailani's behalf in civilian court while he was at Guantanamo, none of the lawyers raised the speedy trial issues.
"They know how to preserve a client's rights and they don't do it," he said.
But Judge Kaplan pointed out that the defense argument that demanding a speedy trial would have been futile because the Bush administration's position was that prisoners held at Guantanamo "would never set foot on American soil."
"The failure to demand is of less significance than it may be in other circumstances," Kaplan said.
Ghailani was indicted in 1998 in the Southern District for the 1998 bombings of U.S. embassies in Kenya and Tanzania by al-Qaida that claimed 224 lives.
He was a fugitive until his capture in 2004 and he was subjected to what Bachrach said was "torture" in violation of the Geneva Convention and other international law, as well as military regulations.
But Farbiarz said the delay of 57 months in bringing Ghailani to the Southern District for trial was constitutional because his detention abroad was needed to gain intelligence and "incapacitate" al-Qaida and he was facing a separate proceeding at Guantanamo -- trial by military commission for the Tanzanian bombing and his post-indictment activities.
The two sides fought during the two-hour hearing yesterday over who has the burden on a speedy trial motion and argued over whether Mr. Ghailani was prejudiced by the delay.
Judge Kaplan focused on the different kinds of prejudice and asked Quijano whether it was not true that Ghailani "would have been incarcerated for the same length of time" had the government simply dismissed the indictment early on.
Quijano returned to his client's treatment, saying that, at the black sites, "he literally didn't know if they were going to kill him the next day."
"This was not the behavior or conduct of some rogue agent or renegade band of enlisted men," he said, but was instead a program launched from the highest levels of government.
When Quijano said the government has obtained a "massive tactical advantage in this case" because of its interrogation of Ghailani, Judge Kaplan reminded him that prosecutors already stated they would not use at trial any information provided during the interrogations.
Quijano insisted they already had an advantage, for example, on witnesses and in cross-examination.
Judge Kaplan took the matter under advisement.
Quijano is a member of Quijano & Ennis. Bachrach is a solo practitioner.