Monday, November 23, 2009

A Bellwether for 9/11 Trials

I've been shamefully neglectful of this blog lately and I apologize. I'm going to try to pick things up a little bit. I think that this story in the New York Times today is right on point about an upcoming terrorism trial in New York City forecasting what may come to pass in the future trials for the recently transferred Gitmo detainees that took part in 9/11. The possible predictor case is the one against Ahmed Ghailani (a past post about him can be found here). Ghailani is being tried for his participation in the 1994 bombings of the U.S. embassies in Kenya and Tanzania. The article contains quotes from Ghailani's attorneys that say that the similarities between their client's case and those of the 9/11 conspirators are superficial only. While that may be true the superficially similar issues couldn't be more important. Those similar issues include: confinement at Gitmo, statements obtained through torture, and harsh conditions of confinement. All of these, especially statements obtained through torture, could pose major obstacles for federal prosecutors as they try to get convictions for Ghailani and the 9/11 terrorists.

Another major issue that Ghailani is challenging is his right to a speedy trial. This issue isn't as high-profile as the other, but nonetheless important. In the federal system a defendant is entitled to two types of speedy trial protection - statutory and constitutional. By statute (18 U.S.C. 3161) federal prosecutors must file an indictment within 30 days of a defendant's arrest and then, if he pleads not guilty, trial must commence within 70 days of the filing of the indictment or the defendant's first appearance in court. The constitutional protection of the right to a speedy trial comes from the Sixth Amendment. Courts balance several factors to determine whether or not a defendant's constitutional right to a speedy trial has been violated. If Ghailani were a normal criminal defendant there is no doubt his case would be thrown out on speedy trial grounds. He was captured by U.S. forces in Pakistan in 2004 and was reportedly moved around between several U.S. run "black site" prisons before finally winding up in the military prison at Guantanamo Bay. Therefore, he has been held for five years without being indicted. Even under the more lenient constitutional speedy trial standard a federal court should throw out his case. But Ghailani is not a normal criminal nor a normal defendant in a federal prosecution. He's been held by the U.S. government for five years with no hint of prosecution, but during the majority of that time is was the strong belief of the U.S. government that he was more a prisoner of war than a criminal. Like it or not that was the official position of the government during the Bush administration, and therefore no federal criminal procedures were started in his case. Because of the federal government's position regarding men like Ghailani I definitely don't see his speedy trial motion succeeding. The judge in charge of this case would have to be extremely bold to consider throwing this case out on those grounds. First of all, he would be vilified in the court of public opinion. Second of all, the judge has legal avenues through which to deny the speedy trial challenge. As I said, the constitutional analysis of speedy trial is based on a balancing test, one factor of which is the reason for the delay. The reason for this delay was that the U.S. government's policy was that Ghailani was not a prisoner subject to the federal criminal justice system. There was literally no way for federal prosecutors to bring a case against him before now. That sounds like a pretty good reason to me. The statutory speedy trial also contains exceptions, one of which allows a judge to consider the interests of justice. That is usually a catch all provision that comes in to play only in extreme circumstances. I would consider this to be an extreme circumstance. There are probably multiple other arguments that prosecutors will make regarding this motion, but I just thought that an overview of a couple would be helpful here. Again, I don't think that there is any chance that the judge grants this motion, for multiple reasons, but it is a novel and interesting legal issue in these cases.

The last thing I will mention about this NYT article is that I think it gives a small, but fascinating window into how high-profile, highly sensitive terrorism trials will work. I'm specifically talking right now about the defense attorneys will go about properly preparing to defend their clients. These cases inevitably involve a great deal of top secret information which people not in government service are unable to look at. This has been a major area of contention as to how terrorism prosecutions can actually be carried out. One side argues that you can't allow a lot of terrorists to be prosecuted because it will lead to the leak of sensitive intelligence which will harm national security. Others argue that we have to prosecute those terrorists that we capture for the sake of sticking to our constitutional values. Both arguments have merit. The article reveals that Ghailani's attorneys have obtained security clearances from the government, and the judge in the case has set up a secured room in which the attorneys can view classified information related to the case and prepare written submissions based on that classified information. This seems like a logical and efficient way to deal with this issue. It still raises concerns of course. One of those concerns is that these are private attorneys that are being allowed to view highly classified information. I think the idea of non-governmental entities looking at classified information still makes people nervous, but they are still subject to criminal penalties for revealing that information just as those that work for the government are. Also, let's face it, those that work for the government and have security clearances are always the most tight-lipped people around.

No matter how you feel about it, we have entered the time where the U.S. is again treating terrorists more as criminals than soldiers. That means that terrorists will be tried in civilian courts of law. Questions still remain: What is the best way to carry out a terrorism prosecution? Can federal courts as they exist now effectively try terrorists or is it too burdensome? Do we need some kind of stand alone judicial entity such as a national security court to handle sensitive national security issues? How the Ghailani trial unfolds will provide some answers, but not all of them. I believe that if the trials of the 9/11 conspirators happen (That is, as long as the defendants in those cases don't plead out which it does not look like they are going to) we will get a good look at how the U.S. federal court system can handle high-profile terrorism trials. At that point, hopefully, this country will get some good guidance as to what procedures it needs to implement with terrorists from the moment of capture to the end of trial. I think these trials will end up being historic events in America's continuing fight against terrorism.


  1. I didn't know how else to get in touch with you, but I am a current 3L and was interested in asking you a few questions. Is there a better way to contact you? Thanks!