Terrorism Trials & Investigations

Ghailani Appeals Brief Finally Unsealed

By Raffaela Wakeman
Thursday, May 31, 2012, 3:18 PM

Waaaay back in January, Ben noted that Ahmed Khalfan Ghailani had filed his opening brief in his appeal to the Second Circuit. Ghailani is appealing his conspiracy conviction and life sentence for his role in the 1998 U.S. Embassy bombings in East Africa that killed 224 people. Ben, Bobby and Jack had a lot to say about the verdict and sentence (here, here, here, and here). Ghailani’s redacted appeals brief is now—finally--available here.

Ghailani frames the questions presented to the Second Circuit as follows:

  1. Whether the Court below erred in denying appellant's motion to dismiss the indictment based upon a violation of his Sixth Amendment constitutional right to a speedy trial.
  2. Whether the court below erred when, over defense objection, it instructed the jury on conscious avoidance; and even if there was a basis for the conscious avoidance instruction, whether the court's instruction was erroneous.

He summarizes his argument as follows:

Appellant was denied his right to a Speedy Trial, guaranteed by the Sixth Amendment to the Constitution. Although he was indicted in 1998 and apprehended in 2004, he was not presented and arraigned in an Article III court, but instead was held in isolation under CIA custody at a "Black Site" located outside of the United States. There, he was subject to Enhanced Interrogation Techniques, also known as torture, and kept as a valuable national security asset. In September, 2006, he was transferred to Guantanamo Bay, where he languished in the custody of the Department of Defense until September 9, 2009, nearly five years after his capture. It is from this denial of his Speedy Trial right that he now appeals.

At the close of his trial, appellant's attorneys vigorously objected to the court's decision to charge the jury regarding "conscious avoidance" to establish the conspiracy charges in the indictment. Appellant now appeals from the court's erroneous decision to submit this charge to the jury. Even if it was not error for the court to instruct the jury on conscious avoidance, the court's improper instruction requires a reversal of the conviction.

After appellant was acquitted on 283 of the 284 charges in the indictment, and convicted of one single count that carried a mandatory minimum term of twenty years, the court imposed a sentence of life imprisonment. It is from this excessive sentence that he now appeals.

The government's response brief is due on October 17th.