Federal judge rules that Department of Justice must release memos for terrorist trial

Prosecutors must produce memos by high-ranking U.S. Department of Justice officials on the transfers of an accused terrorist because they might explain why he was kept out of the criminal justice system for almost five years, a federal judge has ruled.

Southern District of New York Judge Lewis A. Kaplan, in an opinion unsealed Wednesday, ruled on Jan. 21 that the discovery obligations of prosecutors extend to the memos because Justice Department officials can rightly be considered part of the “government” within the meaning of Rule 16 of the Rules of Criminal Procedure.

The ruling came in the case of Ahmed Khalfan Ghailani, the first Guantanamo detainee to be moved from the military commission system to an Article III court for trial on terrorism charges.

The judge’s decision in United States v. Ghailani, S10 98 Crim.1023 remained sealed for the last month until it could be vetted by a court security officer charged with heading off the inadvertent or intentional disclosure of national security information. The procedure is part of protective orders signed by the judge in the case pursuant to the Classified Information Procedures Act.

Ghailani’s lawyers sought the memos on his transfer in an effort to have the indictment against him dismissed on speedy trial grounds. The government claims the delay was justified by the need to interrogate Ghailani and learn information that might prevent terror attacks.

“Even if those officials had no other involvement with Ghailani’s investigation or prosecution, the decisions at issue were so important to the timing and progress of this case that participation in decisionmaking renders those individuals members of the prosecution team, at least to the extent of that participation,” Kaplan wrote in his 13-page opinion.

Ghailani is charged in the al-Qaida conspiracy to destroy U.S. embassies in Tanzania and Kenya in 1998. He was already under indictment when he was arrested in Pakistan in 2004 and transferred to a CIA “black site” for interrogation.

The CIA initially tried to turn Ghailani into an intelligence asset but the decision was later made to transfer him to Guantanamo for trial by military commission.

Ghailani was brought to New York last year to face charges on the 1998 indictment.

Kaplan’s ruling in the case may become fodder for the debate over the merits of trying accused 9/11 plotter Khalid Sheikh Mohammed and four co-conspirators in the civilian justice system. Moreover, Kaplan’s rulings on discovery, speedy trial and the treatment of Ghailani during interrogations are seen as setting some of the outlines for the Mohammed prosecution if it remains in the civilian courts.

In his opinion, Kaplan first rejected the defense request for discovery of a bullet-point memorandum sent by Southern District prosecutors to the Justice Department in Washington, D.C. That memo was represented by the prosecution to be “something of an order of proof with respect to Ghailani.”

The memo, Kaplan ruled, was exempt from discovery under Rule 16(a)(2) as attorney work product or work product-like information.

The judge then turned toward discovery on the Ghailani transfers, where the defense hopes the memos will expose that the government kept Ghailani out of the civilian justice system for reasons other than gathering intelligence and protecting the national security, or as the government put it at oral argument, “saving lives.”

The prosecution team, led by Assistant U.S. Attorney Michael Farbiarz, argued that the term “the government” in Rule 16 did not include those parts of the FBI and Justice that were not “intimately involved” with the prosecution of Ghailani.

The question of whether the national security reasons were legitimate is central to Judge Kaplan’s upcoming decision on the speedy trial motion.

REASON FOR DELAY

In Barker v. Wingo, 407 U.S. 514 (1972), the U.S. Supreme Court set out a four-part balancing test to determine whether the right to a speedy trial has been violated.

The reason for the delay in bringing the defendant to trial is one part of the analysis to be conducted by Judge Kaplan. If the reason is not legitimate, such as to punish the defendant or gain an edge for trial, a case for a speedy trial dismissal can be made.

Other factors to consider are the length of the delay, the defendant’s assertion of his right to a speedy trial or his failure to do so, and the prejudice the defendant suffered by the delay.

Judge Kaplan noted the concern courts have expressed that having a broad or “monolithic” view of “the government” for purposes of discovery obligations could paralyze criminal prosecutions.

But Kaplan said the embassy bombing crime “commanded the attention of the highest levels” of our government long before Ghailani was in American custody.

“His fate since he came into the U.S. doubtless has continued to command such attention to this day as evidenced by his selection as the first Guantánamo detainee to be brought to the United States to face criminal charges,” Judge Kaplan said. “To suggest in this context that a construction of the term ‘the government’ as used in Rule 16 that reaches beyond the line prosecutors and investigators charged with the prosecution into Main Justice — the cabinet department responsible for the prosecution — would ‘condemn the prosecution of criminal cases to a state of paralysis’ would be insupportable.”

The judge said a “practical application” of Rule 16 was called for here, one that was fair to the defendant but would not “thwart or unduly hamper this prosecution or prosecutions in general.”

He continued, “The defendant has a substantial interest in obtaining any such responsive documents that may exist because they likely would provide significant new information as to why a series of decisions of great importance were taken with respect to this defendant. The reasons for those decisions bear directly on the speedy trial motion.”

Ghailani’s defense attorney, Michael Bachrach, declined to comment on the decision.

A spokeswoman for the U.S. Attorney’s Office also declined comment.

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