JURIST Guest Columnist Susan Herman of the Brooklyn Law School says that the Second Circuit’s Ghailani decision is both novel and disturbing because the court relied on the departure from one principle—detention for the purposes of interrogation—as justification or the departure from another principle—the right to a speedy trial …

My mother used to tell me that there are two reasons not to lie. The first is normative: it’s wrong. The second is pragmatic: by departing from the truth you weave a tangled web that may later trip you up.

The US government created the tangled web in which Ahmed Ghailani found himself, by departing from due process principles.

Ghailani was first regarded as an accused criminal who would have been entitled to the constitutional due process protections afforded every criminal defendant. He was then treated as an enemy combatant with no rights at all (interrogated at a black site for over two years before being transferred to Guantanamo Bay for over two and a half years). Then the present administration switched tracks again and decided to try him on a thirteen-year old indictment in federal court.

When Ghailani complained that his right to a speedy trial had been violated by the cumulative time that had passed between his indictment and his trial, the US Court of Appeals for the Second Circuit was unwilling to conclude that the government had tripped itself up.

That the court rejected Ghailani’s constitutional claim is not surprising, given the previous parsimonious state of constitutional speedy trial law. (See my book, The Right to a Speedy and Public Trial (2006) for an account of the contortions of speedy trial law.) What is novel and disturbing about this decision is that the court reconciled the different paradigms the government had employed by embracing the extralegal threads within the legal web. A departure from principle—indefinite detention for the purposes of interrogation—itself became the justification for departure from another principle—the right to a speedy trial. This is yet another way in which the notion that we are at “war” with terrorism in anything more than a metaphorical sense is wreaking havoc with our justice system.

Background

At his 2010 trial in the US District Court for the Southern District of New York, Ghailani was convicted of conspiracy to destroy US buildings and property [18 U.S.C. 844(f)], for his role in procuring and assembling components of the explosive devices used in the 1998 bombing of the US embassy in Dar es Salaam. The jury found that his conduct caused the death of a person other than a conspirator [18 U.S.C. 844(f)(3)], and also acquitted him on 281 additional counts.

This was nasty business, but our due process principles have never been reserved only for nice people.

Ghailani had been indicted for these activities in 1998, along with other defendants, but he was not captured until July 2004 (after 9/11, notably). For over two years after his capture, the CIA detained him at a location the court identified only as being outside the US, subjecting him to both “standard” and “enhanced” interrogation techniques to seek intelligence from him about terrorist networks. The court did not describe the conditions of his confinement or his interrogations, blandly noting that many details of this CIA interrogation program remain classified. The court also reported that the interrogation of Ghailani had been “effective in obtaining useful information.” (A less vague discussion of that assertion was available, according to the court, in a classified supplement to the opinion.)

In September 2006, the CIA transferred Ghailani to the custody of the US Department of Defense. He was sent to Guantanamo where, in March 2008, the government brought charges against him for war crimes in connection with both the Dar es Salaam bombing and Ghailani’s alleged work with al Qaeda between 1998 and 2004, when he was captured. He was to be tried before a military commission. In May 2009, however, the Obama administration changed course and decided to try Ghailani on the 1998 indictment in the Southern District of New York.

Speedy Trial Arithmetic

The Barker v. Wingo balancing test for evaluating a constitutional speedy trial claim encompasses four factors. The first threshold question is the length of the delay. The period of time between 1998 and 2004 does not count under speedy trial law because Ghailani was not available to be tried due to his own actions. But the almost five years he spent at a black site and then at Guantanamo are a different matter. The court appropriately found that those five years are a long enough time to raise judicial eyebrows.

A second factor, whether the accused has demanded a speedy trial, was appropriately found to be irrelevant in the circumstances here. Throughout that time, Ghailani was demanding his release and dismissal of the indictment.

The third Barker factor is prejudice, which can mean that the accused is suffering 1) oppressive pretrial incarceration, 2) anxiety and concern about the delayed trial, or 3) prejudice to the ability to mount a defense at trial. Ghailani certainly suffered during his detention, but the court found that his detention at the black site was not caused by the pendency of his trial. His detention was not, in other words, “pretrial” incarceration, but rather detention caused by the government’s desire to interrogate him rather than try him. The court found that Ghailani had not shown that he had been prejudiced in his defense at trial by the passage of time (dimming of defense witnesses’ memories, loss of exculpatory evidence, etc.) and also found that any advantage the government gained against Ghailani through its interrogations was not cognizable within the speedy trial calculus.

The decisive factor in the analysis was the reason for the delay. Under speedy trial law, a quintessential bad reason for delay is that the government is trying to gain a tactical advantage by waiting out the clock. As the court noted, there is no prior case law on the question of whether the government’s desire to hold someone for interrogation in lieu of trial should count as a good or a bad reason. The court found, setting a significant precedent for the future, that the government’s decision to interrogate Ghailani for years rather than bring him to trial was reasonable because it was in the public interest. The court excused the government from choosing between national security goals and criminal justice goals, saying that the courts should be deferential to the government’s policy decisions in this area. The court went on to approve the length of Ghailani’s detention as reasonable—at least for speedy trial analysis purposes.

Ab(ju)dication

This whitewashing of the government’s course of conduct follows a string of earlier decisions where our courts have resolutely refused to sit in judgment on the legality of the government’s extraordinary rendition and harsh interrogation programs. See Mohammed v. Jeppesen Dataplan, 614 F.3d 1070 (9th Cir. 2010), cert. denied, 131 S. Ct. 2442 (2011) (claim arising out of detention and torture dismissed on the basis of the state secrets privilege); El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007), cert. denied, 128 S. Ct. 373 (2007) (same); Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc), cert. denied, 130 S. Ct. 3409 (2010) (claim arising out of extraordinary rendition and torture dismissed for failure to state a Bivens claim). These claims of shocking government misconduct have been sliced and diced so fine, and filtered through so many layers of standing doctrine, state secrets privilege, etc., that no American court has ever found an opportunity to declare that indefinite detention and “harsh interrogation” without due process, as happened to Ghailani, is morally and legally wrong.

Unlike the refusals to address the merits of the claims in those cases, this new Second Circuit decision actually accepts the conduct in question—over two years of detention and interrogation in a black site under undisclosed conditions—as reasonable. To be sure, this decision is bound by the limited framework of speedy trial law. The detention is only deemed reasonable enough to count as a positive justification on the government’s side of the ledger. But this judicial imprimatur on deplorable government conduct, added to the disdainful opinions in the civil cases attempting to seek redress, sets an unfortunate precedent.

What is ironic about this decision is that the Second Circuit evidently believed it was acting in the best interests of Ghailani and others in extralegal detention: the probable result of finding this prosecution time-barred would most likely have been the continued indefinite detention of Ghailani outside the criminal justice system, either without trial or subject to a military commission trial for war crimes. Accepting the earlier period of detention as reasonable was the price of allowing the lesser evil of a due process prosecution.

This may be a form of empathy, but missing in this opinion, as in the earlier extraordinary rendition cases, is even a moment of articulated empathy for what our prisoners in black sites and in Guantanamo have experienced.

Also missing from all of these opinions is the recognition that our elected officials have shown themselves unlikely to hold investigations or hearings to assess accountability for our taking the black site/harsh interrogation path in the first place and creating this infinitely tangled web. If the courts continue to ab(ju)dicate and defer, will acceptance of our past conduct undermine our resolve to avoid such extreme departures from our principles in the future?

Susan Herman is a Centennial Professor of Law at Brooklyn Law School, where she teaches Constitutional Law, Criminal Procedure and Terrorism and Civil Liberties. She is regarded as a high authority in constitutional and criminal procedure topics. She is the acting President of the American Civil Liberties Union (ACLU), a position she has held since 2008.

Suggested citation:Susan Herman,The Second Circuit’s Ghailani Decision and a Departure from the Right to a Speedy Trial, JURIST – Forum, Dec. 26, 2013, http://jurist.org/forum/2013/12/susan-herman-ghailani-decision.php