US v. Ghailani

• Citation: 686 F. Supp.2d 279
• Decision Date: 18 November 2009
• Docket Number: No. S10 98 Crim. 1023(LAK).,S10 98 Crim. 1023(LAK).
• Parties: UNITED STATES of America, v. Ahmed Khalfan GHAILANI, Defendant.
• Court: U.S. District Court — Southern District of New York

686 F.Supp.2d 279

UNITED STATES of America, v. Ahmed Khalfan GHAILANI, Defendant.

No. S10 98 Crim. 1023(LAK).

United States District Court, S.D. New York.

November 18, 2009.

David Raskin, Michael E. Farbiarz, Ross E. Morrison, Assistant United States Attorneys, Preet Bharara, United States Attorney, David Brash, Robert E. Easton, Director, Office of Litigation Counsel, Department of Defense, Gregory E. Cooper, Esq., Peter Enrique Quijano, Esq., Michael K. Bachrach, Esq., for Defendant.

MEMORANDUM OPINION

LEWIS A. KAPLAN, District Judge.

Ahmed Khalfan Ghailani, an alleged member of Al Qaeda, was indicted in this Court in 1998 and charged with conspiring with Usama Bin Laden and others to kill Americans abroad by, among other means, bombing the United States Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. An arrest warrant promptly issued. Some years later, Ghailani was captured abroad by a foreign state and turned over to the Central Intelligence Agency ("CIA"). Rather than execute the outstanding arrest warrant, the executive branch held Ghailani in CIA custody. Much later, he was transferred to secure facilities at the United States naval base at Guantanamo Bay, Cuba, where he remained until he was turned over to civilian authorities and presented pursuant to the warrant earlier this year. He now stands charged with, among other crimes, conspiring to kill Americans both here and abroad including by bombing the East African embassies.

While Ghailani was at Guantanamo, he was charged before a military commission with one of the embassy bombings. Two military officers, members of Marine and Air Force Judge Advocate General Corps, were assigned as his defense counsel. Although the military commission proceeding was aborted, Ghailani now seeks an injunction barring the Secretary of Defense from reassigning those officers to other duties and requiring that he permit them to participate fully in Ghailani's defense in this Court. He argues that his constitutional rights to due process of law and to the effective assistance of counsel would be violated absent the full participation of these military counsel.

Facts

A. The Indictments

Ghailani first was indicted by a grand jury in this Court on December 16, 1998. The indictment, the third superseding indictment in this case, charged the existence of a broad ranging conspiracy by Usama Bin Laden and others, including Ghailani, to wage a campaign of terror against the United States.¹ Among the alleged means and methods of the conspiracy were (a) killing Americans abroad and (b) the bombing of the United States Embassies in Nairobi and Dar es Salaam.² Ghailani was charged with participation in the conspiracy and with substantive offenses.

The indictment in this case has been superseded many times since December 1998. Ghailani now is charged in the tenth superseding indictment, which was returned on March 12, 2001.³ Unlike the third superseding indictment, the tenth alleges that the conspiracy in which he participated included among its objects the killing of Americans both in the United States and abroad.⁴ He faces additional conspiracy and substantive charges under the current indictment,⁵ but the broad outline of his alleged involvement in the conspiracy remains largely the same as in previous instruments.

B. Ghailani's Capture and Detention

This Court issued a warrant for Ghailani's arrest on the day he first was charged.⁶ The warrant was not promptly executed, presumably because he could not be found.

On July 24, 2004, Ghailani was taken into Pakistani custody. He was transferred to exclusive United States control and then held and interrogated outside of the United States by the CIA as part of a secret intelligence-gathering program.⁷ In September 2006, President Bush ordered that Ghailani and several other "high value detainees" be transferred to the U.S. naval base at Guantanamo Bay,⁸ where he was held in military custody for approximately 32 months.

C. The Military Commission Prosecution at Guantanamo

In March 2008, Ghailani was charged before a military commission at Guantanamo with offenses related to the 1998 embassy bombing in Dar es Salaam. A month later, Lieutenant Colonel Michael Acuff, United States Army Reserve, was assigned to represent him in that proceeding. Some time later, Ghailani requested new counsel in consequence of which Lieutenant Colonel Acuff was reassigned in August 2008. Soon thereafter, the Chief Defense Counsel of the Office of Military Commissions assigned Lieutenant Colonel Jeffrey P. Colwell, United States Marine Corps, and Major Richard B. Reiter, United States Air Force, to represent him.⁹

By all accounts, Colonel Colwell and Major Reiter established good working relationships with the defendant. At his October 22, 2008 arraignment before the military commission, Ghailani requested that a civilian attorney, Scott Fenstermaker, Esq., be allowed to join the defense team, but he indicated also that he wanted Colonel Colwell's and Major Reiter's representation to continue. Colonel Colwell and Major Reiter spent considerable time and effort preparing for Ghailani's defense before the military commission, including several trips to meet with the defendant at Guantanamo.

D. Ghailani's Transfer to the Criminal Justice System and His Subsequent Representation in this Court

After taking office in January 2009, President Obama suspended the military commissions and, on May 21, 2009, announced that Ghailani would be transferred to this Court for prosecution. Immediately thereafter both Ghailani and his military counsel formally requested that Colonel Colwell and Major Reiter be permitted to represent the defendant in this forum.¹⁰ These requests ultimately were denied save that Colonel Colwell and Major Reiter were given permission to remain involved with the defense until October 19, 2009 so that they might effectively "transition" the case to Ghailani's appointed civilian counsel.¹¹

E. The Present Motion

On October 7, 2009, the defense moved by order to show cause for a temporary restraining order and permanent injunction enjoining the reassignment of Colonel Colwell and Major Reiter at the conclusion of the transition period on October 19, 2009.¹² Ghailani claims that such a reassignment would violate his Fifth Amendment right to due process of law and his Sixth Amendment right to the effective assistance of counsel.

It is important to note the precise manner in which the application is framed. The papers bear the caption of this criminal case followed by an additional caption styled Ahmed Khalfan Ghailani, Petitioner, against Robert M. Gates, Secretary of Defense, Respondent. They seek an injunction against the Secretary of Defense. Ghailani, however, has filed no such civil action.

Discussion

This is a criminal prosecution to which the Secretary of Defense is not a party. Thus, by styling the application as one for an injunction against the Secretary, the defense has raised a number of preliminary questions, including whether the Court could and should grant relief against the Secretary in this case, assuming arguendo that relief otherwise were warranted. The Defense Department and the United States Attorney's Office ("USAO"), moreover, have met the defense on this ground.¹³ But the application must be viewed from another perspective as well.

In essence, the defendant claims that the United States government, the word "government" here used to refer to the United States as a whole rather than in the more limited sense used in criminal cases, where it typically refers to the USAO and the Department of Justice, threatens to act in a manner that would violate his Fifth and Sixth Amendment rights in this criminal case.¹⁴ There appears to be little doubt that "if ... a Sixth Amendment violation is the result of ongoing government conduct, the district court ... may order the cessation of such conduct" in the context of a criminal case.¹⁵ There is no doubt at all that a completed violation of Fifth or Sixth Amendment rights may warrant dismissal of an indictment.¹⁶ Accordingly, the Court will consider both the specific application for an injunction against the Secretary of Defense and the more general assertion that relief is warranted against the United States as part of this criminal prosecution.

I. Jurisdiction Over and Justiciability of the Motion for an Injunction Against the Secretary

A. The Standard for Injunctive Relief

"A party seeking preliminary injunctive relief must establish: (1) either (a) a likelihood of success on the merits of its case or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor, and (2) a likelihood of irreparable harm if the requested relief is denied."¹⁷ The standard for a permanent injunction is the same except that the applicant must prevail, as distinguished from establishing some likelihood of success, on the merits.¹⁸ In order to prevail here, then, Ghailani first must establish that the Court has jurisdiction—power—to grant relief against the Secretary if relief were warranted and that prudential considerations would permit the exercise of any such power. I begin with those questions.¹⁹ The further issue whether the reassignment of Colonel Colwell and Major Reiter would violate Ghailani's constitutional rights is common to his claims against the Secretary and for relief against the government, meaning here the prosecution, and therefore is treated separately below.

B. Subject Matter Jurisdiction

"Federal district courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute."²⁰

Jurisdiction in this case is invoked under Section 3231 of the Criminal Code,²¹ which provides that "the district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against...