USA: Shadow over justice: Absence of accountability and remedy casts shadow over opening of trial of former secret detainee accused in embassy bombings

October 1, 2010

USA: Shadow over justice: Absence of accountability and remedy casts shadow over opening of trial of former secret detainee accused in embassy bombings

During pre-trial proceedings, the defence challenged the US government’s treatment of Ahmed Ghailani prior to his being brought to New York, but the trial judge made it clear that the criminal trial will not be the forum in which accountability for this period will be addressed (if it is addressed at all), although he has acknowledged that the government and individual officials may indeed have a case to answer in relation to Ghailani’s treatment.

Judge Lewis Kaplan ruled against a defence motion to have the indictment against Ahmed Ghailani dismissed on the grounds that he had been tortured in CIA custody before his transfer to Guantánamo in 2006. “Any remedy for any such violation”, Judge Kaplan wrote in his opinion of 10 May 2010, “must be found outside the confines of this criminal case”. If Ahmed Ghailani was tortured, the judge concluded, “he may have remedies”. But such remedies “do not include dismissal of the indictment”. Judge Kaplan noted that the government had given assurances that it would not use any statements made by Ahmed Ghailani while in CIA custody, “or the fruits of any such statement”, in his prosecution. A decision to forego use of any statements obtained under torture or other ill-treatment is not only a crucial element of any effective remedy for Ahmed Ghailani, however, it is and was in any event a specific international legal obligation by which the US government was bound.2

Subsequently, on 12 July 2010, Judge Kaplan denied a defence motion to have the indictment dismissed on the grounds that Ahmed Ghailani’s right to a speedy trial had been violated during the five years that he was held in CIA and US military custody. This time, Judge Kaplan noted that Ahmed Ghailani “is not alone in questioning the propriety of at least some of the techniques that the CIA was authorized to use on certain detainees”, and added that some of the methods used by the CIA “might give rise to civil claims or even criminal charges”. However, he ruled that “this is not the time or the place to pass judgment on whether those techniques, in and of themselves, were appropriate or legal.”

Judge Kaplan’s ruling threw the issue of accountability and remedy back to the political branches of government. The question for the court, Judge Kaplan concluded, was “not whether the CIA’s treatment of Ghailani prejudiced him in the sense that it was distasteful or worse”, but whether that treatment “prejudiced values protected by the Speedy Trial Clause” of the US Constitution.3Judge Kaplan ruled that there were insufficient grounds for concluding that his treatment had compromised these values (as a matter of US domestic law). While the delay in bringing Ahmed Ghailani to trial “was long and entirely the product of decisions for which the executive branch of our government is responsible”, Judge Kaplan wrote, “the decisions that caused the delay were not made for the purpose of gaining any advantage over Ghailani in the prosecution of this indictment”.