Accused U.S. Embassy bomber Ahmed Ghailani was broken by "enhanced" CIA interrogation methods in just 14 hours over five days in 2004 but not brought to court for nearly five years, a defense lawyer told a Manhattan federal judge Monday in the first test of a key issue in the planned prosecution of 9/11 mastermind Khalid Sheikh Mohammed.
Ghailani is seeking to have his 1998 conspiracy indictment in the al-Qaida bombing of two U.S. embassies in Africa dismissed for violation of his constitutional right to a speedy trial - an issue also expected to arise in the case against Mohammed, who like Ghailani has been held for years at secret CIA "black sites" and at the Guan- tánamo Bay military prison.
Defense lawyer Peter Quijano told U.S. District Judge Lewis Kaplan the defense didn't dispute the decision to use Ghailani as an intelligence asset by holding and interrogating him outside the civilian justice system, but said the government forfeited the right to try him later.
"The government had two competing mandates to choose between," Quijano said. "It decided to ignore his constitutional rights and instead chose to transfer him from accused defendant to intelligence asset and relegate him to a modern-day gulag. . . . The government can't have it both ways."
But Prosecutor Michael Fabiarz told Kaplan that in a post-9/11 world, prosecutors need to have it both ways, and there is no violation of the Constitution as long as intelligence-related detentions don't prejudice the fairness of a later trial.
"The two aren't mutually exclusive," Fabiarz argued.
Ghailani, a Tanzanian in his mid-30s, last June became the first Guantánamo prisoner transferred to a civilian court under Obama administration policies. He did not attend the two-hour oral argument.
Unlike Mohammed, Ghailani was already facing charges in civilian court dating to his 1998 indictment for the embassy bombings when he was captured in 2004. That makes his speedy trial claim a particularly strong one for the defense. If it loses, the government will have reason to be optimistic about the prospects for cases against Mohammed and others.
The government has said it elicited valuable intelligence from Ghailani during his detention, but the exact techniques it used remain classified. "Enhanced" methods approved by the Bush administration ranged from sleep deprivation and stress position to waterboarding, the technique used against Mohammed.
Quijano said interrogators got Ghailani to tell them whatever they wanted by reducing him to a state of "learned helplessness" through techniques that amounted to torture, and urged Kaplan to refuse to accommodate such tactics. "They didn't care! They didn't care!" he said. "You can't not care about the Constitution."
But Fabiarz said courts have permitted extended trial delays to allow the government to locate inculpatory witnesses, and that eliciting data to protect national security provides an even stronger rationale for delay.