Charges Against Gitmo Terror Suspect Should Be Thrown Out, Lawyer Argues
January 12, 2010 - 6:09 AMA lawyer asked a judge Monday to toss out charges against the first Guantanamo Bay detainee to be brought to civilian courts, saying he was tortured for 14 hours over five days and denied trial for nearly five years.
Attorney Peter Enrique Quijano told U.S. District Judge Lewis Kaplan that Ahmed Khalfan Ghailani's right to a speedy trial was violated when he was sent after his July 2004 arrest to a secret CIA-run interrogation camp abroad rather than to the U.S. for a civilian trial.
After two hours of arguments, the judge reserved decision.
At the time of his arrest in Pakistan, Ghailani was a fugitive, already indicted in federal court in Manhattan in the August 1998 bombings of two U.S. embassies in Africa. The bombings killed 225 people, including a dozen Americans.
Rulings in Ghailani's case could set precedents affecting the New York prosecution of Khalid Sheik Mohammed, accused of being the mastermind of the Sept. 11, 2001, terrorist attacks. Attorney General Eric Holder announced in November his intention to move Mohammed and four other detainees from Guantanamo Bay to New York to face a civilian trial.
Quijano seemed to be revealing information that the government had tried to keep secret when he said that Ghailani was subjected to enhanced interrogation for 14 hours over five days.
The comment prompted Assistant U.S. Attorney Michael Farbiarz to rush to Quijano's side and the defense lawyer to try to withdraw the comment. The judge said it was too late as he glanced at reporters.
Specifics about Quijano's treatment by his CIA interrogators in the weeks after his arrest have been redacted from court papers filed before the oral arguments.
In court papers, prosecutors said the government decided to treat Ghailani as an intelligence asset because of his close relationship to high-ranking al-Qaida leaders and because he had "information that was both urgent and crucial to our nation's war efforts."
Ghailani has described by authorities as a bomb maker, document forger and aide to Osama bin Laden, who is also indicted in the embassy bombings case.
The "United States justifiably opted to initially treat the defendant as an intelligence asset -- to obtain from him whatever information it could concerning terrorists and terrorist plots," prosecutors said. "This was done, simply put, to save lives."
Repeatedly, Quijano referred to harsh treatment of his client, saying that for several months after his arrest "he literally didn't know whether the next morning he would just be taken out and shot."
Before scaling back its enhanced interrogation program, the CIA used 10 harsh methods, including waterboarding, a form of simulated drowning.
Ghailani complained about his treatment last February, saying he'd been deprived of his liberty and "denied access to the outside world."
"I have been a victim of the 'cruel enhanced interrogation' techniques, never afforded the right to remain silent nor the right to have an attorney," he wrote in a petition seeking freedom.
Quijano said the U.S. government had the right to treat Ghailani as an intelligence asset for two years before he was transferred to Guantanamo Bay as an enemy combatant, but that there were Constitutional consequences for making such a "political decision."
"A state of war does not give the president a blank check when it comes to Constitutional rights," he said.
Farbiarz agreed that the Constitution does not "get put on a shelf" during extraordinary times and that a speedy trial is a fundamental right, but he said legal decisions in previous cases make it clear that the delay in bringing Ghailani to trial was justified and reasonable.
"The delay is valid when its purpose is not to hinder the defense," he said.
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