A terrorism defendant facing a September trial for the conspiracy that included the 1998 bombings of two U.S. embassies in Africa has failed in his attempt to avoid strip searches by corrections officers that he claims trigger a post-traumatic stress response stemming from his torture at the hands of the CIA.
Ahmed Khalfan Ghailani has been waiving his presence at pretrial proceedings because of his objection to the search procedure at Manhattan's Metropolitan Correctional Center.
Ghailani's lawyers claim the searches, which require him to strip, squat and display his rectum so that correctional officers can determine whether he has secreted a weapon, cause horrible memories of the "enhanced interrogation techniques" used by the CIA at a black site following his arrest in Pakistan in 2004.
But in an opinion written June 14 and released Thursday in U.S. v. Ghailani (pdf), S10 98 Crim. 1023, Southern District of New York Judge Lewis A. Kaplan rejected Ghailani's request for an order directing the Bureau of Prisons to cease the visual inspections as a prerequisite to Ghailani's attendance in court.
Ghailani's lawyers, Michael K. Bachrach, Peter Quijano and Steve Zissou, claimed that the policy violated their client's Sixth Amendment right to participate in his own defense.
The government countered that every detainee at the MCC is subject to the same procedure, which is necessary to ensure the safety of both officers and prisoners.
In a May 18 hearing before Judge Kaplan, Katherine Porterfield, a defense psychologist, testified that exposure of the defendant's rectum or even the anticipation of such a search causes a reaction that renders Ghailani unable to assist his defense lawyers.
But Assistant U.S. Attorney Harry A. Chernoff questioned Porterfield on whether Ghailani's claim of trauma might not be related to his murder of hundreds in the embassy bombings in Tanzania and Kenya in 1998.
In the opinion released Thursday, Judge Kaplan agreed with the prosecution that the searches served several important governmental interests.
"Accommodating Ghailani's request by foregoing visual searches of the defendant's body cavities would risk the safety of guards, other inmates and court personnel by creating opportunities for the defendant to secrete weapons or contraband in his person," Kaplan said.
Ghailani's lawyers argued that other security procedures that have been applied to their client would serve as an adequate substitute for the visual searches.
But Kaplan said he was "not convinced that the existing procedures to which the defense points render the challenged policy unnecessary or superfluous."
"Notwithstanding defense counsel's assertions to the contrary," he said, "the government has made a credible showing that ready alternatives are not available to protect this important security interest."
The backdrop to the argument over the strip searches of Ghailani is the brutal attack on MCC officer Louis Pepe by Mamdouh Mahmud Salim in 2000.
Salim, an alleged top aide to Osama bin Laden who also faces charges in the embassy bombing conspiracy case, was allegedly trying to take hostages and engineer an escape from the MCC when he used a sharpened comb as a knife and stabbed Pepe in the eye, leaving him with permanent brain damage.
In 2003, Judge Deborah A. Batts found that the attack was not related to a crime of terrorism and sentenced Salim to 32 years in prison.
But the 2nd U.S. Circuit Court of Appeals found in 2008 that Batts erred in disqualifying Salim for a terrorism sentencing enhancement that could make him eligible for life in prison. Salim has yet to be resentenced but he remains under indictment in the embassy bombing case.