Federal judge rules against military lawyers for former Guantanamo detainee

[JURIST] A federal judge on Wednesday ruled [opinion, PDF] that former Guantanamo Bay [JURIST news archive] detainee Ahmed Ghailani [GlobalSecurity backgrounder; JURIST news archive] does not have a right to be represented by his military defense lawyers in a civilian court. Military lawyers Colonel Jeffrey Colwell and Major Richard Reiter were reassigned by the Department of Defense [official website] despite their willingness to continue representing Ghailani and Judge Lewis Kaplan's initial ruling [JURIST report] in June allowing them to do so. Ghailani's court-appointed lawyer argued that the reassignment orders violated his Fifth Amendment right to due process and his Sixth Amendment [texts] right to effective assistance of counsel. Kaplan rejected the due process claim because of its post-indictment nature and held that, despite a right to continued services of appointed counsel in military proceedings, the right did not extend to Ghailani in civil court. Kaplan reasoned that:


the more generous protection of the right to counsel afforded in the military justice system is grounded in the Uniform Code of Military Justice and military regulations, not the Sixth Amendment. Accordingly, the military analogy lends no support to Ghailani's argument. He is entitled to, and is receiving, representation of appointed counsel at public expense. He is not entitled to choose particular government-paid counsel – military or civilian – and he does not have a right to the continued services of previously appointed counsel.

Despite his ruling, Kaplan recognized the "near-insurmountable difficulties created by the US government" in the case and that Ghailani's unique trust in his military attorneys may not be equaled.

In July, Ghailani's military lawyers requested access to secret prisons [JURIST news archive] operated by the Central Intelligence Agency [official website] at which their client was held prior to his transfer to Guantanamo Bay. Ghailani faces charges for his alleged involvement in the 1998 bombings of US embassies [PBS backgrounder; JURIST news archive] in Tanzania and Kenya and is the first Guantanamo detainee to be brought to the US for prosecution. Having been held at the Guantanamo facility since 2006, Ghailani was transferred [JURIST report] to the US District Court for the Southern District of New York [official website] in June to face 286 separate counts including involvement in the bombings and conspiring with Osama bin Laden and other members of al Qaeda to kill Americans worldwide. He pleaded not guilty [JURIST report] at his initial appearance. The announcement [JURIST report] that Ghailani would be tried in federal court came earlier this year following the ordered review of all Guantanamo detainees pursuant to plans to close the detention facility [JURIST news archive].

 

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