US court’s awful yet correct ruling

October 29, 2013

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ARE two years at a Central Intelligence Agency "black site" and three more in prison at Guantanamo Bay, Cuba, enough to violate the US Constitution's guarantee of a speedy trial?

If you think the answer is obviously "yes," you're wrong: A distinguished, liberal panel of the US Court of Appeals for the Second Circuit held last week that Ahmed Khalfan Ghailani, who helped plan the bombings of US embassies in Africa in 1998, did not suffer a violation of his constitutional rights when the government put him on trial nearly five years after catching him.

The judges had to torture the Constitution (you should pardon the expression) to get there, but their motive shows through in the opinion. And they made the correct call: If they had followed the usual constitutional logic, the government would have to hold all the current Guantanamo detainees indefinitely, instead of putting them on trial and getting them off the island.

Ghailani is a bad guy, of that there is little doubt. Recruited by Al Qaeda as early as 1996, he procured items necessary for the bombings of the US embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, then disappeared.

While he was on the lam, he was indicted for his role in the bombing — which means that when they caught him, government prosecutors had the evidence to put him on trial.Instead, he spent two years in an unnamed CIA facility where he was, it appears, subject to the "enhanced interrogation" regime with which we have sadly become familiar. In 2006, it seems, his sell-by date expired; he was transferred to Guantanamo and deemed an alien enemy combatant. He was slated to be tried by a military commission, but in 2009, the Obama administration chose to give him a civilian trial in New York, at which he was convicted and sentenced to life in prison.

The Sixth Amendment clearly says that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." The word "speedy" may be a little ambiguous, but five years in the modern equivalent of a dungeon, some of it on the modern equivalent of the rack, would certainly not have seemed speedy to our founding fathers.

In applying the provision to Ghailani, though, the appeals court cited the Supreme Court, saying that speedy-trial rights are a balancing test, and that delays are prohibited only if unreasonable in light of the "public and private interests" at stake. Once balancing came into the picture, Ghailani's case was doomed. The government's interest in delay was national security — and what information it could get out of a known Al Qaeda operative. Against this most compelling governmental interest, Ghailani's interest in going to trial quickly would inevitably look puny. Adding insult to injury, the appeals court quoted — apparently with approval — a lower court's conclusion that any prejudice to his case the prisoner suffered by enhanced interrogation at a CIA black site was due to the interrogation techniques, not the fact of the delay.

It might seem unsettling that the opinion was written by Judge Jose Cabranes, whom Bill Clinton seriously considered for a Supreme Court seat. He was joined by Judge Pierre Leval, a Democratic appointee whom many liberal lawyers and scholars consider the wisest and most humane judge on the federal bench, and Judge Barrington Parker, a moderate appointed to the district court by Bill Clinton and then to the appellate court by George W. Bush.

But the judges' hands were tied — and therein lies a tale. What if they had sided with Ghailani, holding that CIA questioning and/or Guantanamo detention violated the speedy- trial requirement?

The consequence would have been that the government would not be able to bring any current or future detainees to civilian trial at all. Without the option of putting them on trial, the US would simply hold them indefinitely as enemy combatants, a detention that the Obama administration considers within its rights under the laws of war and that Congress has essentially endorsed. As the court put it, this result "would hardly advance the interests of defendants or the values underpinning the Speedy Trial Clause."

By arrangement with The Washington Post/Bloomberg News Service