As the debate over where and how to try Khalid Sheikh Mohammed and his alleged fellow 9/11 conspirators rages on, one judge is quietly handling the only active civilian prosecution of a former Guantanamo detainee.
Southern District Judge Lewis A. Kaplan has been presiding over pretrial proceedings in the upcoming September trial of Ahmed Khalfan Ghailani for his role in the 1998 bombings of two U.S. embassies in Africa: a case that poses some of the same issues at the intersection of civilian law enforcement and national security as the more controversial 9/11 prosecutions.
Former prosecutors who have appeared before Kaplan say privately that, in some respects, he is all one could ask for in a sensitive case involving novel legal terrain and classified information: whip-smart, decisive and clear-thinking.
But they also say Kaplan is a bit of a wild card because he has proven less than shy about holding the government's feet to the fire when it comes to its adherence to the U.S. Constitution.
Prosecutors felt the judge's sting in 2006 and 2007 when he found the government violated the right to counsel and the right to fair criminal proceedings for 13 defendants in the KPMG tax shelter case.
Kaplan ripped the government for pressuring KPMG, which was seeking a non-prosecution agreement, to abandon its normal practice of paying the legal fees for employees.
He was relentless in questioning U.S. Department of Justice practices on measuring corporate cooperation in white-collar criminal investigations. And he issued a series of sharp opinions expressing outrage at government interference with the defendants' access to fees.
"This is intolerable in a society that holds itself out to the world as a paragon of justice," Kaplan wrote in his opinion explaining his dismissal of charges against the defendants in United States v. Stein. The Justice Department later revised its guidelines.
Ghailani's lawyers cited the Stein case to support their unsuccessful claim that their client had been deprived of his right to counsel when the government removed the military lawyers assigned to him at Guantanamo after he was shifted to the civilian system in 2009.
The prosecution in United States v. Ghailani, 98 Crim. 1023, is being led by Michael E. Farbiarz, co-chief of the U.S. attorney's terrorism and international narcotics unit.
Ghailani is represented by Peter E. Quijano of Quijano & Ennis, Michael K. Bachrach and, a recent addition, Steve Zissou.
Among the larger issues the judge has been tackling in Ghailani are whether Ghailani was denied a speedy trial.
Ghailani was seized in 2004, but instead of being brought back to New York to face trial on the embassy bombing indictment, he was moved to secret, or "black," sites, where he was interrogated (his lawyers say abused) by CIA agents who initially tried to turn him into an intelligence asset and later shipped him to Guantanamo.
A major issue is how much discovery the judge can and will allow the defense, including any memos relating to each phase of Ghailani's detention.
The defense is hoping to undercut the government's claim that speedy trial requirements do not apply because the detention, delay and interrogation of Ghailani was driven by the need to obtain actionable intelligence against al-Qaida and save lives.
Kaplan issued a memorandum and opinion on Jan. 21 concerning discovery related to the speedy trial motion, but that opinion has yet to be unsealed and placed in the public record because of the requirements of the Classified Information Procedures Act.
However, in an order issued late Tuesday, Kaplan said his Jan. 21 opinion directed the government to identify the former or current Department of Justice officials who advised or made the decisions on the transfers of Ghailani.
The government identified those officials on Monday. Tuesday, Kaplan ordered prosecutors to search the files of those for materials regarding the transfers. The judge said "to the extent that the Government determines such materials indicate that the decisions to transfer the defendant were for a purpose other than national security, they shall be produced."
He gave the government until March 2 to comply.
The next step is for Kaplan to issue an opinion on the speedy trial motion itself.
Kaplan, 65, was raised in the West Brighton neighborhood on Staten Island's North Shore. He attended Curtis High School and worked after school in his father's deli.
He graduated in 1966 from the University of Rochester, where he studied chemistry and political science. He earned his J.D. at Harvard Law School in 1969.
His legal career began with a clerkship for Judge Edward M. McEntee of the 1st U.S. Circuit Court of Appeals.
Kaplan then had a 24-year run at Paul, Weiss, Rifkind, Wharton & Garrison, making partner in 1977.
He was elevated to the bench by President Bill Clinton in 1994 and has since handled a number of complex high-profile cases in addition to Stein, including his oversight of multidistrict litigation in In re: Rezulin Products Liability Litigation, 00 Civ. 2843, and Parmalat Securities Litigation, 04-md-01653.
Kaplan held a unique auction system to determine who would be lead counsel in a class action alleging price-fixing against the Christies and Sotheby's auction houses -- and presided over a settlement in the case (In re Auction House Litigation, 00 Civ. 0648).
In January, Kaplan upheld a ban on the wearing of political buttons by New York City teachers in contact with students, Weingarten v. Board of Education, 08 Civ. 8702.
In the last two weeks, he dismissed a pair of cases brought by investors against debt rating agencies and some Lehman Brothers Holdings Inc. board members over losses suffered in the mortgage-backed securities debacle in In re Lehman Brothers Securities and ERISA Litigation, 09-md-2017.
Kaplan has written extensively on antitrust law, corporate criminal liability, copyright in the digital age and on the Internet, and delivered lectures and speeches on many of the same topics as well as the need for wholesale reform of the system of private securities litigation.
His style on the bench is direct and businesslike but not unfriendly, unless a lawyer comes anywhere close to skirting the truth. Then he can be sarcastic and scathing. Attorneys who make weak arguments or offer an obtuse response to a question are quickly told to move on.
Kaplan has a dry sense of humor that he tends to display when testing the limits of an attorney's argument.
When Assistant U.S. Attorney Ross Morrison was arguing in October that the judge had no power to review the transfer of Ghailani's military lawyers, Kaplan ratcheted up a hypothetical, saying, "Let's make the question even harder."
He asked whether he had the authority to hear a case by a person court-martialed and sentenced to death who argues "that whoever imposed the sentence was biased against him on religious grounds, subjected to improper command influence and has taken some money to impose the death penalty."
"That's a bad case, your honor," Morrison replied.
"I tried," said the judge.
In 2009, Kaplan was honored with the Judicial Recognition Award by the National Association of Criminal Defense Lawyers and also received the Learned Hand Medal for Excellence in Federal Jurisprudence from the Federal Bar Council.
Robert J. Giuffra Jr. of Sullivan & Cromwell presented the Hand Medal to Kaplan, calling him a "judicial craftsman of the highest order" who eschews the doctrinaire and resists conventional wisdom.
Giuffra also gave a glimpse of the private Kaplan.
"On the weekends, the intellectually intimidating Kaplan becomes farmer Lew," presiding over a "somewhat unusual" farm without animals, only a hay field.
"Farmer Lew loves to drive his guests around on his John Deere tractor," he said. "And, not surprising, he is very skilled with a chain saw."
Kaplan then gave an address to the crowd on wrongful convictions and the right to counsel.
He advocated a system of certification for criminal defense lawyers "with some real teeth in it," a system for reporting and investigating substandard criminal representation, higher pay for lawyers appointed to defend the poor, and a reduction of "crushing caseloads" maintained by public defenders.
"Professional life involves more than billable hours, profits per partner, and rankings on American Lawyer charts," he said. "It involves more than providing free legal work to a charity or a cause in which one happens to believe."
"The defense of the indigent is a crying need, and it is the responsibility of the bar to see that this need is satisfied."