Speedy trial chickens may be coming home to roost

In a previous post, I mentioned the possibility of speedy trial problems arising if terrorism suspects are treated differently than other violent criminals. And we are now seeing signs that this may be true.

The defense for Guantanamo Bay prisoner Ahmed Gilani, who is so far the only GTMO detainee to be tried in Federal court rather than in a Military Tribunal, is now seeking to have his conviction overturned due to his long detention prior to trial (see also, here). Gilani was sentenced to life in prison for his role in the 1998 embassy attacks in Tanzania and Kenya. After his capture in Pakistan in 2004, he was held in incommunicado by the CIA for two years, then by the military at Guantanamo Bay, Cuba until 2009, when the Obama Administration transferred him to civilian custody for trial.

But I suspect that while this delay is truly significant, and under normal circumstances would be a clear violation of the constitutional requirement for a speedy trial, I think there is a clear difference between this case and the Boston bombing case. Where Tsarnaev was a civilian captured in the US with no apparent ties to a foreign enemy entity (state-based, state-sponsored, or otherwise), Gilani was captured on foreign soil in the course of a foreign war authorized by Congress. As such, the US was authorized to hold Gilani without charge as a suspected enemy combatant, regardless of his activities in 1998.

Where one might decide to draw the line between these two poles, with arrest under civilian authority on the one end, and capture under foreign relations/law of war authority on the other, I don’t exactly know. However, it is clear that these two cases fall on opposite sides of that divide. So even if Gilani’s speedy trial appeal is defeated, as I suspect it will, that does not limit the concern that such an appeal could lead to the release of convicted terrorists if pre-trial detention is prolonged for intelligence-gathering purposes. Such concerns are very real, and should not be taken lightly.

Paul W. Taylor, Senior Fellow
Center for Policy and Research

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About paulwtaylor

Paul is a Senior Fellow at the Center for Policy & Research and an alumnus of Seton Hall Law School and the Whitehead School of Diplomacy and International Relations. Having obtained a joint-degree in law and international relations, he has studied international security, causes of war, national security law, and international law. Additionally, Paul is a veteran of the Army’s 82nd Airborne Division, with deployments to both Afghanistan and to Iraq, and has worked at the International Criminal Tribunal for Rwanda and Global Action to Prevent War. He has also participated in habeas litigation for Guantanamo Bay detainees and investigated various government policies and practices. In addition to his duties as a member of the editorial staff of TransparentPolicy.org, Paul now works at Cydecor, Inc., a defense contractor focused on naval irregular and expeditionary warfare. Paul's research and writing focuses on targeted killing, direct action, drones, and the automation of warfare.

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