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Ghailani Appeal and Debates About Terrorism Prosecutions

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Wednesday, May 8, 2013 at 11:14 PM

Amid the debate about how legally to handle the Boston Marathon bomber and the President’s recent remarks about closing Guantanamo, Ahmed Ghailani’s appeal was argued today in the Second Circuit.  As the New York Times reports in this summary of the argument:

A lawyer for the only terrorist detainee to be held at the military prison at Guantánamo Bay, Cuba, and then tried in the civilian court system asked a federal appeals court on Wednesday to overturn his conviction, on the grounds that his long detention violated his right to a speedy trial.

The former detainee, Ahmed Khalfan Ghailani, who was captured in 2004, had been held for two years in a secret overseas jail run by the Central Intelligence Agency, and then later at Guantánamo. In 2009, the Obama administration moved him into the civilian system and tried him the next year on charges stemming from Al Qaeda’s 1998 bombings of two American embassies in East Africa, which killed 224 people.

Many readers will remember that the jury acquitted Ghailani of all but one of the hundreds of charges against him, and he was sentenced to life in prison.  Interestingly, both sides of the polarized debate about civilian trials for al Qaida suspects point to this case for support: critics say the failure to convict on the vast majority of charges and the challenges that arose during the case with respect to CIA interrogations show the dangers and obstacles to civilian court prosecution, while advocates of such trials point out that even despite those issues Ghailani (like the many other terrorism suspects who have been prosecuted in federal courts over recent years) was locked away for life in the end.

Ghailani is unlikely to win this appeal.  The stakes go way beyond this case, though, because his argument that prolonged detention in CIA custody and at Guantanamo now bar criminal prosecution would be another major barrier to the President’s preferred pathway (I guess?) for closing Guantanamo.