Ghailani’s Speedy Trial Challenge
Ahmed Ghailani’s lawyers have moved to have his indictment dismissed because he was denied a speedy trial. As a reminder, Ghailani is being tried for his involvement in the African embassy bombings, under an indictment first filed in 1998. His lawyers are arguing that the government held and interrogated Ghailani for 57 months (with two years in a Black Site) before they moved to try him on that indictment that was pending during that entire period of detention.
At the end of the day, certain things appear to be irrefutable: (1) the delay was caused by deliberate Government action which would knowingly deprive Mr. Ghailani of his right to a Speedy Trial; (2) the reason to cause this delay was the Government’s desire to interrogate Mr. Ghailani extensively about matters that involved the same entity and co-conspirators that were part of the charged indictment; and (3) by being able to interrogate Mr. Ghailani for as long as they did and in the manner and under the conditions that they did, the Government obtained the information it sought, without having to enter into a voluntary and binding plea agreement that could have allowed the Government to obtain the same information that the Government sought but after he was arraigned and provided counsel in the Southern District of New York.
In short, and in the interests of national security, the Government got what it desired, when it desired, but at the expense of denying Mr. Ghailani his Constitutional right to a Speedy Trial on the pending Indictment.
Now, the motion is going to be unique among potential Article III defendants, since no other detainees are known to have pending indictments in an Article III court. But it will be an early read on whether and how abuse will be introduced into these cases. There are extensive pages describing Ghailani’s treatment–all of which have been redacted in the public filing. The motion notes in footnote 5 that,
We also note that due to the limitations of the Classified Information Protective Order, dated, July 21, 2009, issued in this case, the defense has been unable to directly discuss the information contained in these summaries with Mr. Ghailani and are required to rely instead upon the Government’s summaries of what occurred.
This seems to suggest that the lawyers themselves are only getting summaries of the treatment Ghailani underwent, but they are then limited to substitutions for those summaries themselves (though I will try to clarify this). To provide a public description of what might have happened to Ghailani, then, his lawyers had a civilian defense counsel from the Office of Military Commissions submit a declaration about the known details of the interrogation program to lay out the kinds of treatment Ghailani might be subject to. (Note, she focuses on the August and September 2004 approvals signed by Dan Levin, at least one of which almost certainly pertains to Ghailani personally).
So Ghailani has–through this Speedy Trial challenge–introduced evidence about his torture. But it’s behind three different screens of redaction to prevent Americans from knowing how he was treated.
There may not be much joy received as to torture disclosures from this motion to dismiss as torture itself is not particularly germane to a strict speedy trial consideration. That said, I think there is a lot of compelling merit to Ghailani’s motion here; it does simply look like an egregious violation. It will be interesting to watch the fancy dancing the government and court undertakes to sidestep this pretty clear fact. It is, as you note, unique to Ghailani at this point though and does not carry over to KSM and the others recently announced for SDNY (won’t stop the Goopers from howling though).
How crazy is it that the Defense lawyers can’t talk with Ghailani about his torture because the Government has classified the torture?
I expect a Government motion any day now telling Ghailani not to even think about his own torture because he doesn’t have the necessary clearance and “the need to know”.
I sure hope folks in the Judicial branch finally wake up and start fixing/correcting this torturous and cockamamie government “up is down” illogic.
Well, at some point, that will turn at least somewhat I think. Probably not in relation to this motion though, because torture is not a necessary element to the speedy trial consideration.
Maybe the relevance is that it shows that the government gained something from its decision not to prosecute. The government should not be allowed to have its cake and eat it too.
This sounds an awful lot like the Prosecution (the USGov) has control over the use of its own illegal conduct by the Defense in the trial.
Maybe the Speedy Trial gambit is a way for the Defendant to do an end run around the problems it might otherwise have in accessing crucial information for the defense.
Unfortunately, if the indictment is dismissed on this basis, the fright-wing Republicans will argue that this proves that the Constitution prevents the Gov from prosecuting Enemies of the People, and that therefore the Constitution must be Shredded in order to Keep Us Safe (TM).
Bob in AZ
IANAL. I don’t understand this
from Link.
It seems to me that Nov. 18th Kaplan dismissed/reassigned/something both the lawyers (and their previous motion to dismiss from January, May, and June ’09 continuences) who brought the motion to dismiss yesterday. How does that work?
Fascinating documents — thanks, EW. That’s lots of redaction under “Physical and Psychological Harm.”
Different court, different motion, but the redactions remind me of the way redactions have been used in the UK Binyam Mohamed case. As we can see, when some of those redactions start to fall away, even on one of the multiple levels, what we get a peek of is a massive employment of torture, early, often, and widespread.
heck of a job, georgie
care to comment on how you managed to fuck up the prosecution of America’s enemies ???
THis is really a test case of how SDNY will do at trying someone who has been tortured, in anticipation of the 9/11 trial. That’s one of the reasons why this is so interesting, bc it really is unique, but it also really is a fairly serious motion (NAL and all that). So they may never get to do their test run before the KSM trial, where there are more serious challenges based on torture (I’m thinking Ramzi bin al-Shibh most of all).
I will have to see the full briefing, but this looks to me, at first blush, to be a VERY well taken motion. It will be an excellent indication about how serious the court is in following the rule of law.
I’m torn on some of the strategies they seem to be employing in the briefing.
I’m not sure that their repeated characterization of the reason of the delay being to turn Ghailani into an intelligence asset who could be utilized reliably to protect national security are the best ways to characterize the delay (as opposed to, say, referring to using Ghailani as a subject for physical and psychological experimentation to monitor the effects of long term abuse,isolation, punishment and learned helplessness protocols on the ability to develope a viable intelligence asset, etc. )
I’m also not sure that their arguments set them up for an ability to argue for other release – i.e., from military custody – if the case is dismissed for delay. And I do see some possible doors being opened on the “deliberate, neutral, valid” front with their broad use of the argument that gov was developing Ghailani into an intelligence asset during the “delay” It wouldn’t be a good thing to have a ruling that, given the importance of national security, a delay to try to turn someone into an intell asset to save the nation is a “valid” purpose. That even opens up another avenue of ct deference – how long that takes and what is needed to accomplish it are something into which the court will not inquire – etc.
I do think they have very good dismissal for lack of speedy trial grounds, but I don’t finish their brief with a comfortable feeling.
If he was cooperating and willing in the effort to turn him into an asset, I might could see your point. But is it not incumbent on the government, their burden, to affirmatively establish that and produce an agreement with waiver to militate against Ghailani’s rights under the 6th and the Speedy Trial Act?
Jeebus, bmaz, you’re talking like an East Texan here. Or is this typical Southwestern speech? Um, do you put up your briefcase when you get home?
Bob in AZ
Who did time in Houston, long enough to get good stuff for a great American novel.
East Texan?? Them’s fightin words Bob!
I didn’t even notice your “might could”, but, then, I live in Houston…
I’m not sure and “standards” are kinda loosey-goosey, aren’t they? With no real guidance in such a situation (no black sites torture to save the world case law that I know of).
How many cooperating witnessess start out, off the bat, cooperating and willing without some time spent visiting with what non-cooperation looks like?
In any event, what I don’t like about it is the seeming concession that Gov has spent all the time of the delay *attempting to develop an intelligence asset for the purposes of national security* and especially with him not being a US citizen and with the unknowns (and Hamdi-is-not-your-friend and Padilla got dismissed ambiguities) of what kinds of military detentions are going to be acceptable even if his “trial” is released.
I think it frames it in a way that makes it easier for the court to possibly say, “that’s a valid, as opposed to a deliberate, gov purpose” to say that they WERE developing an intelligence asset, as opposed to engaging in human experimentation regarding physicial and psychological punishments and abuses to monitor whether they might be successful in generating an intelligence asset. It seems to concede that they were engaged in some kind of recognized procedures, as opposed to learned helplessness and depravity experimentation – and it doesn’t force the “and did it work” issue much.
I do think they have and make some good speedy trial arguments, but I don’t like some of the doors they open and paths they take, but I guess that’s why I’m not a litigator.
I don’t disagree with that to some extent. However, the govt. may open some unfriendly doors of their own here. First, if they run with this, I would then spin and say the torture evidence is now germane to disprove such assertion and to demonstrate lack of consent. Secondly, if you get past the initial consideration and establish a prima facie case, it is my recollection the defendant gets to request an evidentiary hearing to establish bad faith and actual, as opposed to alleged, prejudice. This would be a nightmare for the government. This could cut both ways is what I am saying and there may be a landmine/trap the defense has laid.
And yes, the Fed speedy trial standards are a little loosey goosey compared to what I am used to under state law.
They might not be able to say the latter, i.e., that Ghailani was a subject of experimentation, because a) that material was redacted and the available summaries do not state this, or b) they do know something of this but can say nothing because it is classified. I have been struck by how often the attorneys in these cases are forbidden to say much of what they know, handcuffed by overly restrictive classification and national security rules.
“Developing an intelligent asset” sounds so objectively neutral, even laudatory, that it leaves out entirely the purported assets consent. Coercion, even in the name of national interest, cannot be a reason for nullifying a constitutional right.
I think they can say that and say it as least as much “factually” as their “developing an asset” assertions. The linked filing doesn’t have the Exhibit B, which is supposed to be about public info, but I think that the memo’s themselves that have been released are evidentiary of what tactics were being authorized and used in general during the detentions – I think the affidavit filed in the Padilla case (which gives me goosebumps in a very bad way) is also evidentiary of the tactics being used. More to the point, the lawyers have access to the confidential summaries and can “talk to the court” about them, in redacted filings, even though they can’t talk to their client about what was done to him.
So, based on the tactics they can reference – either those publically revealed in the memos to be a part of gov’s approach, or in the Padilla affidavit filed with the court their as outlining gov’s approach to these detentions, or based on their own access to confidential info – I think they can say that he was being held so x, y and z could be done to him and that gov is alleging that the ability to do x, y and z is necessary to turn someone into an intelligence asset – – but they have no proof and were instead engaging in experimentation to see if x, y and z might work.
I think that’s much more factual than saying gov was detaining him to “develop” into an intelligence asset. It’s like saying gov was spraying agent orange to “develop” vegetation. If there’s no scientific or factual support that keeping someone in isolation, naked, hooded, beating them, anally assaulting them, starving and freezing them, etc. “develops” intelligence then I think you don’t seemingly concede on that point.
People can be coerced in some ways within legitimate law enforcement parameters – law enforcement can lie to someone (along some lines) or trick them in order to coerce a response that they would not have given if they had to give prior consent to allow the use of lies and tricks against them. People can be coerced with the threats of possible convictions and sentences if they don’t cooperate as well
I don’t think you can just generically say that “coercing” a statement for national security purposes isn’t a “valid” purpose for some period of pre-trial detention. But I sure think conceding that actual reliable intel was being “developed” as opposed to the use of experimental tactics that are more likely to get someone to say what gov wants said as opposed to provide intel, isn’t a good way to go. They don’t really make that outright of a concession (and on motions to dismiss you have to be able to concede some adverse party framing and STILL “win” the day), but I’m not real comfortable with where they go. Still, they’ve pulled out a good and narrow grounds for dismissal and it’s a very well written and laid out brief. We’ll see what happens.
@19 – Yeah, I mean, how bad is it when your CIA authorized drug and sexual abuse and civilian killing activities are “outed.” And who wouldn’t want someone like Eric Prince wrestling with their 15 yo sons?
What you say makes sense to me. Not having the lawyer’s training and experience, I have to bow to your analysis.
I have this vague memory that Ghailani WAS treated differently, but I don’t know where it came from. Is that from Ghailani-provided evidence in other cases?
And recall that he was captured after they had Mohammed Noor Khan flipped, but then screwed that up. So we know they were trying to flip AQ members at that point.
Holy shit
Erik Prince compares himself to Valerie Plame?
http://rawstory.com/2009/12/blackwaters-prince-cia-role/
Hmmm. Reading the Vanity Fair article and seeing Prince’s admiration for Wild Bill Donovan’s early OSS training at country estates makes me wonder if Prince and Blackwater built the black site torture facility in Lithiuania. The 2004 construction date fits with when Prince supposedly became a CIA “asset”.
OT Erik Prince: CIA asset, under the bus guy, High school economics and history teacher, and wrestling coach… just like Indiana Jones.
From Raw story http://rawstory.com/2009/12/blackwaters-prince-cia-role/
The article at Vanity Fair http://www.vanityfair.com/politics/features/2010/01/blackwater-201001
Wonder how many teachers he and his crew (if he was a CIA asset and therefor gov, where is the line between gov and CIA and Blackwater) killed or helped kill.
Sorry – don’t mean to drone on. Warm fuzzies and all that.
He’s really p.o.’d that he was outed (tsk tsk) and thinks it was Democrats that did it. The VF article is really something.
A valid question I don’t think we will ever know the answer to.
I have concerns about his students and what the history or economics curriculum might contain.
This particular bit of torture intrigue may be behind several layers of redacted material, but the overwhelming mountain of evidence cannot be ignored.
Torture was conceived, instituted and often supervised from the highest levels of the US Government. Cheney has openly admitted many times on television his enthusiastic support of same.
Even a Catholic priest has better sense than to go on a Sunday morning talkshow and promote the abuse of alter boys, yet we had government officials authorizing the torture of toddlers testicles (as a means to get their IRAQI parents cooperation). The longer this legal charade is allowed to go on, the worse it is going to be in the end.
Enjoy.
I think I know exactly what the CIA did to Ghailani. At least, what they asked permission to do. Check out this “Dear John” letter from Levin to Rizzo, dated September 20, 2004. The CIA asked for permission to use twelve torture techniques:
How do I know that the prisoner in question was Ghailani? Well, Dan Levin always uses Microsoft Word, 12 point Times New Roman, and the default margins. If you fire up Word(r) and type of the lines of that letter where the prisoner’s last name is redacted (along with the lines above and below each of those), you can substitute Ghailani for the redactions and everything lines up perfectly. Given that Times New Roman is a proportionally spaced font, the chances of that being a coincidence is pretty small.
I.e., the “enhanced interrogation techniques” program of torture, which we now know was fully in place by April 2002 (Zubaydah and Binyam Mohamed), and we saw codified, so to speak, in the Bybee to Rizzo Aug 1 2002 memo.
No doubt, but in the time period right before Ghailani was captured, Goldsmith had pulled the ‘get out of jail free’ card from the CIA. They were careful then to get specific approvals from the OLC for each specific act of torture. Ghailani was included in the ICRC report. He is very likely the “detainee who did not wish his name to be transmitted to authorities” in the ICRC report. The list of degradations suffered by that detainee matches closely the list in the letter I referenced above (with exception of cramped confinement).
As bmaz said, outstanding sleuthing!
Outstanding sleuthing!
OT
One detail which drew my attention in the Vanity Affair atricle on Erik Prince http://www.vanityfair.com/politics/features/2010/01/blackwater-201001
“According to ‘a source familiar with the program’…..Another target, the source says, was A. Q. Khan, the rogue Pakistani scientist who shared nuclear know-how with Iran, Libya, and North Korea. The C.I.A. team supposedly tracked him in Dubai. In both cases, the source insists, the authorities in Washington chose not to pull the trigger. Khan’s inclusion on the target list, however, would suggest that the assassination effort was broader than has previously been acknowledged. (Says agency spokesman Gimigliano, “[The] C.I.A. hasn’t discussed—despite some mischaracterizations that have appeared in the public domain—the substance of this effort or earlier ones.”)”
The scope of the program(s) are either bigger than first stated ..or there is something new revealed about AQ Khan and his associates.
Gee – it might almost make you wonder if it was broad enough to include Iranian scientists or someone like Ali Reza Asghari.
Certainly included al Jazeera reporters.
If you consider that some of these ‘projects’ may have been begun on ‘speculation’, what can be ruled out? I’ve heard about picking the players based on what they bring to the table, but this…..
Again from the Vanity Fair article http://www.vanityfair.com/politics/features/2010/01/blackwater-201001
“By focusing so intently on Blackwater, Congress and the press overlooked the elephant in the room. Prince wasn’t merely a contractor; he was, insiders say, a full-blown asset. Three sources with direct knowledge of the relationship say that the C.I.A.’s National Resources Division recruited Prince in 2004 to join a secret network of American citizens with special skills or unusual access to targets of interest. As assets go, Prince would have been quite a catch. He had more cash, transport, matériel, and personnel at his disposal than almost anyone Langley would have run in its 62-year history.”
As to who was in charge?…
The question of this type of work being ‘done on spec’ (as in making auto parts).. but that might be an oversimplification…
Again quoting from Vanity Fair http://www.vanityfair.com/politics/features/2010/01/blackwater-201001
“It’s not at all clear who was running whom, since Prince says that, unlike many other assets, he did much of his work on spec, claiming to have used personal funds to road-test the viability of certain operations. “I grew up around the auto industry,” Prince explains. “Customers would say to my dad, ‘We have this need.’ He would then use his own money to create prototypes to fulfill those needs. He took the ‘If you build it, they will come’ approach.””
What could go wrong with men of good intentions doing work like this ‘on spec’?
Suppose the job started ‘on spec’ was canceled or declined? How could you get the investment back?…
If Waxman was still at his previous job, we might have a Congressional
Investigation… in re Blackwater
I wonder how much of this (if what Prince states is true) was briefed to congress, and to the appropriate people at CIA?
“A giant proctological(sic) exam” is indeed called for.
Yes, I read the article and wondered how of this is true and how much is
Prince’s ego babbling…
Well, now that we know he’s CIA, we know he doesn’t lie. Hoekstra straightened us out on that.
I do kind of wonder if this Vanity Fair piece being in the pipeline had anything to do with the dropping of charges against Nick Slatten in the Nisoor Square killings.
http://www.wsmv.com/news/21716752/detail.html
Of the Six charged in the Nisur Square ‘incident’; one has pled guilty to voluntary manslaughter, and attempt to commit voluntary manslaughter.
Four others still charged with multiple counts of various charges.
See coverage in local paper where Slatten is from. http://www.spartaexpositor.com/articles/2009/11/26/news/doc4b0c0e5de6f65241154562.txt
Is the “dismissal without prejudice” time out for plea bargaining/cooperation for Slatten?
Maybe, but I dunno; usually they leave the charges in place until the cooperation is completed. First, it maintains the leverage, and second then other defendants cannot point to the definite benefit (as opposed to a potential reduction or dismissal of charges later) as impeachment evidence against your testimony.
and 46 – I wondered if he had any ties with Prince on some of the CIA “asset” activities that put him in a more sensitive category for them to go after. But that’s just idle spec.
Before say.. 2000 I am sure that I would have found this set of facts(?) rather incredible.
In view of recent history, the only question I have is: Who if anyone is telling the truth?
I haven’t read the brief but I have always expected the government to simply sidestep the whole torture question. There is a reasonable expectation that the federal courts will allow them to do this. The federal courts are receptive to even very weak government cases on terror, as long as the executive does not impinge on separation of powers issues. I can see the courts ruling that the torture evidence is simply not germane to the terror case. I doubt if much or any of it will make it into court or before the public or a jury. And as we have seen on the torture issue, the government has shown little interest in investigating itself in this regard, look at the limp Holder sponsored review for example.
OT
It would be a good time to push for media regulation. Murdoch taken to task.
BTW – just to revisit something on Ghailani – his is the case where Gov has been asked to preserve the black sites for evidentiary purposes and … they said, “sure, okfine.”
Strange days.
http://www.nytimes.com/2009/07/03/nyregion/03detainee.html
I suspect they said “sure, okfine” because the site(s) where Ghailani was held had already been dismantled (they only agreed to preserve it in its current state).
Oh surely not. Look what a good job they’ve done with preserving and tracking evidence so far./snark
From the Vanity Fair argument, what the heck is the CIA’s “National Resources Division?” That creeps me out as much as anything else in the article.
“the C.I.A.’s National Resources Division recruited Prince in 2004 to join a secret network of American citizens with special skills or unusual access to targets of interest”
Um, like what – ability to lace salads with drugs? Weaponize anthrax? Plant evidence? What the heck is a secret network of “citizens”” who can “access” targets of interest and use their “special” skills? Non-domestic “targets of interest”? How the hell does Congress give oversight to something like that?
Especially when those “citizens” are putting together kill squads including *third country nationals* who don’t know of the CIA connection and presumably don’t have any EO types of “restrictions” on who they kill, ikncluding Americans.
emph added.
And then you have Prince operating here at home, “directing” the movement of spies in other countries. with no chain of responsiblity or legal constratints?
Why isn’t the Intelligence Committees all over this?
To me, if Prince isn’t lying, this is a fucking bombshell….
“Especially when those “citizens” are putting together kill squads including *third country nationals* who don’t know of the CIA connection and presumably don’t have any EO types of “restrictions” on who they kill, ikncluding Americans.”
Who do these “third country nationals” think they are working for/responsible to? Some country other than the US?
Do they think they are working for some government agency of some government, or just some corporate job, or do they even care who they are working for?
One would hope the vetting process would ensure that these ’employees’, these “third country nationals” were not themselves engaged in “spec work” of their own on the side.
Who could do this and how?
What could go wrong?
It would not be difficult to put a “beginners” list of possible “citizens” who may fall in this category together.
Creeps me out too.
WO @ 20. I ditto bmaz and Jeff Kaye on your outstanding investigative work.
On a related note, for folks who want to understand the differences, Secrecy News has some good info:
@50
It may be why they got so rev’d up.
In particular, the VF article (it’s worth reading this other article they link on the Syrian killings) has Prince pretty much saying that he, as a CIA asset, did the surveillance and “fixing” to locate Abu Ghadiya in Syria, then he and Blackwater set up the hit in Syria, using US Spec Op forces (anyone asked McChrystal about this?)
Despite Prince’s bragging tone in the article, it looks like the hit he called in may have primarily killed a farm family and friend and a night watchman (with the night watchman’s wife being wounded and his 6 yo barely escaping). I guess if you’re in Congress and there’s a killing of a family in Syria by the US military and they were called in by a CIA “asset” for that killing, you might get a bit miffed if you found out that no one told you about it bc the “fixing” was done by blackwater and the killing done by spec ops. A little something that might trigger another war front, but no one in Congress has to know anything about it …
Not that that’s what the briefing was about or what happened necessarily, but it does start the spec.
A ‘Jim Croce incident’..
Does this apply whether or not those killed were the targets, also guilty, or in the wrong place at the wrong time? The article Mary referred to is here :
http://www.vanityfair.com/politics/features/2009/10/al-sukariya-200910
“Jim Croce incident” explained:
Larry Johnson, a former C.I.A. analyst and now a consultant to army special operations, who has spoken to people with knowledge of the raid, says the U.S. was sending a message to the Syrians: “We’ve told you in the past to stop it. Now we’re serious.” He calls the raid “a Jim Croce incident,” referring to the 1970s singer known for the lyrics “You don’t tug on Superman’s cape / You don’t spit into the wind / You don’t pull the mask off the old Lone Ranger / And you don’t mess around with Jim.”
Watch Jim Croce interviewed here (singing with his wife,and with his young son)
http://www.youtube.com/watch?v=m-fwTMW3Rbg&feature=player_embedded
Think about some of Jim’s songs; this is on the same level of insult as using Bruce Springsteen’s ‘Born in the USA’ to sell Ronald Reagan.
The difference here is Jim is not here to say what he thinks.