Appointment of admiral seen as key in 9/11 trial switch

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The speedy-trial issue arises in the prosecution of Ahmed Khalfan Ghailani, a former Osama bin Laden aide and explosives expert charged in the 1998 East African embassy bombings that killed 224.

Mr. Holder also decided to bring Ghailani out of the prison and military court system at Guantanamo Bay and reindict him for civilian trial.

His civilian lawyers want U.S. District Court Judge Lewis A. Kaplan to dismiss charges on grounds that Ghailani was denied a speedy trial under the Constitution’s Sixth Amendment. There is no such guarantee in the law establishing the war tribunals on the theory that enemy combatants may be held for intelligence value, then tried.

The CIA nabbed Ghailani in Pakistan in 2004, held him in a secret prison for two years, then brought him to the military prison in Cuba. A year ago, the defendant was flown to New York for federal trial.

If Judge Kaplan rules Ghailani’s speedy-trial right was violated and appeals courts agree, Mr. Holder would have his out. He could announce he has no choice other than to send Ghailani back to Gitmo and keep Shaikh Mohammed there for trial so the terrorist suspects are not set free.

Judge Kaplan already has ruled on one defense motion, refusing to dismiss charges based on the CIA’s harsh interrogation techniques.

“The more interesting ruling that the judge has not opined on yet is the speedy-trial issue,” said Mr. Stimson. “Quite honestly, if Judge Kaplan rules that the government violated Ghailani’s speedy-trial rights by not bringing him to trial in an appropriate period of time and dismisses the charges, that ruling, if it stands, marks the end of federal court for anybody at Gitmo because then the commission is the only way to go because military commissions don’t allow for speedy- trial motions.”

“The government’s position is that the accused was an enemy combatant while he was in custody, not a criminal suspect,” Mr. Stimson said. “Enemy combatants have no trial rights per se, because they are not candidates for trial. Once the government decided to ‘convert’ him to a criminal suspect, they brought him to trial in a timely manner and did not violate his speedy-trial rights.”

The Criminal Justice Legal Foundation, which supports prosecutors, has filed a brief arguing that Ghailani was not in the federal court system until a year ago, so his speedy-trial rights remain intact.

“The delay in the prosecution of this case has been caused by the defendant’s own acts of evading capture and by the overriding imperative of gathering intelligence from him to prevent further attacks on Americans,” Kent Scheidegger, the group’s legal director, said in a statement.

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