A New York judge has ordered the US government to turn over memos by high-ranking Justice Department officials on the transfers of alleged Tanzanian terrorist Ahmed Khalfan Ghailani, the first Guantanamo detainee to move from the military commission system to civilian court.
United States district judge Lewis A. Kaplan ruled in an opinion unsealed last week that prosecutors must produce the memos because they could shed light on why Ghailani was kept out of the American criminal justice system for almost five years.
In the opinion, Judge Kaplan argued that official US Department of Justice (DOJ) memos fall under the prosecution’s discovery obligations because the memo writers can be considered part of the “government” as defined by the (US) rules of criminal procedure.
“Even if those DOJ officials had no other involvement with Ghailani’s investigation or prosecution, the decisions at issue were so important to the timing and progress of this case that participation in decision-making renders those individuals members of the prosecution team, at least to the extent of that participation,” Kaplan wrote in the opinion.
Kaplan’s opinion was sealed after it was written in January to allow court officers time to vet it and prevent disclosure of national security information.
The opinion could provide ammunition for critics of attorney general Eric Holder’s decision to try Guantanamo detainees in civilian court. Republicans, and some Democrats, have argued that evidence produced in such trials could reveal information about the US anti-terrorism efforts against al-Qaeda and others.
Ghaliani allegedly took part in an al-Qaeda plot to destroy US embassies in Tanzania and Kenya in 1998. He was arrested in Pakistan in 2004 then transferred to a CIA “black site.” In 2006, he was sent to Guantanmo before ultimately being charged in a New York federal court last year.
Ghailani’s lawyers sought the DOJ memos in an attempt to dismiss his indictment on speedy trial grounds. Lead prosecutor Assistant US. attorney Michael Farbiarz argued that because the DOJ officials were not intimately involved with the case, the memos did not have to be produced in discovery.
The Tanzanian is alleged to have worked for Osama bin Laden as a bodyguard and cook, the US government has said.
His lawyers have cited the delays in bringing him to court in a motion to dismiss charges on the grounds that his constitutional right to a speedy trial was violated.