Ghailani: Constitutional “Cross-Ruffing,” and Why I Worry…

I’ve now had a chance to read yesterday’s Second Circuit decision in Ghailani, affirming the conviction of the one terrorism suspect transferred from Guantánamo to stand trial in a domestic civilian criminal court. As I suggested yesterday, although the Court of Appeals considered three issues in the appeal, by far the most significant discussion is its analysis of Ghailani’s claim that the five-year delay between his initial capture and his criminal trial violated his rights under the Sixth Amendment’s Speedy Trial Clause. In the post that follows, I briefly explain why the Second Circuit’s analysis in this regard is so significant, especially insofar as it preserves the government’s flexibility to deploy the military detention-then-civilian criminal prosecution option in cases involving AUMF-covered terrorism suspects. Folks may well disagree about the desirability of such flexibility, but its availability is what matters for ongoing debates over how the government should handle newly captured detainees. That said, there’s still an elephant in the room that we’d do well not to forget…

The crux of the issue in Ghailani is the Speedy Trial Clause. It’s well-settled that courts look to four (“Barker“) factors when evaluating speedy trial claims: (1) the length of the delay; (2) the reasons for the delay; (3) whether the defendant asserted his right in the run-up to the trial; and (4) whether the defendant was prejudiced by the failure to bring the case to trial more quickly. The key for the Second Circuit, though, was the second prong. As Judge Cabranes wrote for the panel,

It is true that national security is a somewhat unusual cause for trial delay in that it is not related to the trial itself. But we observe nothing in the text or history of the Speedy Trial Clause that requires the government to choose between national security and an orderly and fair justice system. To the contrary, the Speedy Trial Clause preserves both the interests of defendants and the societal interest in the integrity of the justice system by balancing those interests to determine whether the requirements of the Clause have been violated. We observe no basis for, and reject in full, Ghailani’s argument that, once having detained a defendant as a national security intelligence asset, the government can no longer bring the defendant to trial. Ghailani’s suggestion that the government must detain defendants who pose a threat to national security indefinitely rather than bring them to trial for their crimes in the manner consistent with our traditional notions of justice would hardly advance the interests of defendants or the values underpinning the Speedy Trial Clause.

Moreover, “There is no simple bright-line answer to the question of how much delay by reason of national security concerns is consistent with the government’s right to proceed thereafter to trial.” And in Ghailani’s case, as Judge Kaplan had explained, “the decision to place Ghailani in the CIA Program was made in the reasonable belief that he had valuable information essential to combating Al Qaeda and protecting national security” and “the evidence show[ed] that the government had reason to believe that this valuable intelligence could not have been obtained except by putting Ghailani into that program and that it could not successfully have done so and prosecuted him in federal court at the same time.” Thus, the case-specific circumstances of Ghailani’s case did not give rise to a Speedy Trial Clause violation.

There are certainly reasons to quibble with the Second Circuit’s rather cursory analysis, especially insofar as it assumes that the government would never use a CIA or military interrogation to also develop information relevant to a subsequent criminal case, as opposed to pure intelligence gathering. And it also bears emphasizing that Ghailani only deals with the Speedy Trial Clause issue that could arise in this context, and not any of the other issues that can arise in military detention-then-civilian prosecution cases that Jen and I have flagged previously.

But even on its own narrow terms, yesterday’s decision is a big deal for at least two distinct reasons: First, it’s the first circuit-level endorsement (however tacit) of this approach to terrorism cases, and one largely grounded in the Second Circuit’s suggestion that military detention-then-civilian prosecution may in fact be better for individuals in Ghailani’s position than any of the alternatives (e.g., military detention-then-military detention, or military detention-then-military commission prosecution).

Second, it drives home, yet again, the extent to which criminal procedure rules do not actually exert that much of a constraint on the government’s ability to “cross-ruff” between the military detention and civilian prosecution paradigms in cases in which both are available (i.e., cases in which the terrorism suspect is subject to detention under the AUMF). In one sense, this result is entirely justifiable; the government should be allowed to take advantage of all of the options available to it, and I, for one, share Judge Cabranes’ view that it’s better for cases to end up in the civilian criminal courts than for them not to. In that regard, Ghailani is yet another nail in the coffin of those who still believe military commissions are necessary for future cases. If the government is able to interrogate terrorism suspects at the point and time of capture and for a reasonable period thereafter, and then subsequently bring them into the civilian criminal justice system, it’s hard to see what purpose the commissions could continue to serve in any cases other than those already underway.

But here’s the hard question: What if Ghailani wasn’t properly subject to detention under the AUMF, but was detained anyway? Put another way, if habeas petitions become moot once the detainee is “released,” and if courts are continuing to hold that there are both (1) no damages suits in such cases; and (2) no criminal procedure consequences for pre-trial military detention, what’s the remedy if and when such detention is in fact unlawful–what stops the government from abusing the flexibility these decisions necessarily endorse? By all accounts, Ghailani doesn’t raise this issue, and so the Second Circuit’s analysis seems difficult to dispute. But I still worry… 

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Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).