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Redacted USG and Defense Briefs in Ghailani Appeal

Raffaela Wakeman
Friday, April 12, 2013, 11:12 AM
Now available in redacted form: the government's opposition brief and the defendant's reply in United States v. Ghailani, a criminal case arising from the 1998 bombing of U.S. embassies in Kenya and Tanzania, and now pending before the Second Circuit.

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Now available in redacted form: the government's opposition brief and the defendant's reply in United States v. Ghailani, a criminal case arising from the 1998 bombing of U.S. embassies in Kenya and Tanzania, and now pending before the Second Circuit.  Our last update came nearly a year ago, when Ghailani's opening appellate brief was unsealed. The government then filed its submission in October, and Ghailani filed a reply in February---but the two documents only recently were posted to the court's docket. The defendant was apprehended in 2004 and detained at a CIA black site until his 2006 transfer to GTMO.   The Bush Administration thereafter sought to try him before a military commission.  Its successor changed course, though, and in 2009 prosecuted Ghailani in the Southern District of New York. During the civilian trial, the government planned to call a witness, Hussein Abebe, from whom Ghailani allegedly had purchased TNT.  The U.S. captured Abebe based upon information wrested from Ghaliani by the CIA, during his detention abroad. The defense team therefore moved to preclude Abebe's testimony.  And Judge Lewis Kaplan granted that request, finding the linkages between the CIA's coercive interrogation and Abebe's anticipated testimony to be "direct and close." Despite the evidence's exclusion, a jury nevertheless convicted Ghailani of a single conspiracy count but acquitted him of all 283 remaining counts. (Ben and Bobby and Jack all blogged about the verdict's implications.) The defendant appealed his conviction and life sentence. Before the Second Circuit, Ghailani advanced three broad claims: first, that the government violated Ghailani's Sixth Amendment right to a speedy trial; second, that the district court should have not instructed the jury on Ghailani's "conscious avoidance" of the unfolding plot, and that in any event the instruction failed to account for Ghailani's genuine ignorance of his co-defendants' intentions to bomb embassies; and third, that his life sentence was unreasonable, both procedurally (among other things, because Judge Kaplan declined to hold a hearing on the reliability of certain hearsay evidence---the statement of a co-conspirator---which was introduced during sentencing) and substantively (among other things, becuase Ghailani was tortured, and received a life sentence upon conviction of a single count, even though co-conspirators were convicted of numerous counts before also receiving life terms). In its brief, the United States says first that the lower court did not abuse its discretion in denying Ghailani's motion to dismiss the case on speedy trial grounds. Here, prosecutors differentiate Ghailani from his co-conspirators, who were captured not too long after the embassy attacks and tried over a decade ago.  But six years passed before Ghailani was caught, and by that time the U.S. was at war against Al Qaeda---a change in conditions that supported the motion's denial.   National security concerns, and the pendency of CSRT and military commission proceedings, also reasonably justified the long interval between the defendant's capture and his transfer to civilian custody:
After "important intelligence" had been obtained, the United States then made the entirely reasonable decision to continue holding Ghailani as an alien enemy combatant pursuant to the laws of war, and to prosecute him in a military commission for his many violations of those laws. That prosecution continued until Ghailani was brought to the Southern District of New York for his 2009 arraignment. Thus, while there were delays in bringing Ghailani to trial in the instant case, these delays were amply justified under the precedents of the Supreme Court and this Court; they cause Ghailani no cognizable prejudice, as the District Court found; and they did not constitute a Sixth Amendment violation.
The government also adds that the delay did not prejudice Ghailani. As for jury instructions, the government says these contained no error.  Judge Kaplan's "conscious avoidance" charge was both appropriate under the circumstances and properly composed: contrary to Ghailani's assertion, the district court directed jurors to evaluate Ghailani's genuine beliefs about his participation---or non-participation---in the embassy bombings themselves.  And prosecutors likewise insist that Ghailani's life sentence was reasonable, as a procedural and substantive matter.   Procedurally, prosecutors say, a separate hearing was not required in order to evaluate the reliability of the co-conspirator statement, chiefly because the district court did not, in fact, rely upon it in calculating Ghailani's sentence.  And substantively, they claim Ghailani's life term was legitimate---even in light of his co-defendants' conviction of more offenses than Ghailani---in light of Ghailani's remorselessness and ongoing role, even after the embassy attacks, in Al-Qaeda:
To be clear, Ghailani was not required to put before the District Court any description of the work he did for al Qaeda after the Embassy bombings. But he did so, and his account makes clear that even after participating in the brutality and carnage of the Embassy bombings---indeed, even after the monstrous horrors of September 11, 2001---Ghailani continued to work actively at the highest levels of al Qaeda. Ghailani's explanation for why he did so is implausible, self-serving, and entirely unapologetic. In light of the scale of his crime, and in the absence of genuine reformation, the District Court acted well within its discretion in concluding that Ghailani deserved a Guidelines sentence.
Ghailani's reply brief stoutly rejects the government's speedy trial arguments. Like Ghailani's opening brief, it says both that his Sixth Amendment right attached in 2004, when he was first captured and held for intelligence interrogation; and further that the executive branch violated that right by shipping him to black sites and Guantanamo---rather than producing him for a civilian trial.  The delay was entirely the government's fault, and the product of choice.  And, Ghaliani says, neither "national security" nor other government-initiated proceedings justifies the violation of his right to a speedy trial. Regarding conscious avoidance, the reply reiterates that Ghailani was "used as a dupe"; that he did not know what "activity the individuals who bombed the Embassies were planning"; and finally that his activities "were equally as consistent with innocence as with guilt." Without abandoning their general objection to the conscious avoidance instruction, the attorneys thus renew their claim that the lower court erred by failing to direct the panel to weigh Ghailani's actual beliefs about what transpired.  All the more so, the lawyers emphasize, because jurors expressed confusion about that very issue. Ghailani lastly argues that, in sentencing him, the district court ignored the jury's decision to acquit him on all 224 counts of murder, instead (and quite unlawfully) considering him guilty of those charges during sentencing. That resulted in a "shockingly high" prison term.    Oral arguments have been set for May 8th.

Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT. Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.

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