The criminal case against the first detainee transferred from Guantanamo Bay for trial in a U.S. civilian court should be thrown out because he was denied the right to a speedy trial, defense lawyers argued on Monday.
The government countered that the prosecution of Ahmed Khalfan Ghailani -- a Tanzanian national charged for his alleged role in the 1998 U.S. Embassy bombings in Tanzania and Kenya -- was delayed for a legitimate reason: gathering high-value intelligence from Ghailani during interrogations.
The prosecution described its national security needs as "weightier, more significant" than a speedy trial demands.
The case is being watched for precedents that could affect others, including that of Khalid Sheikh Mohammed, the accused mastermind of the Sept. 11 attacks, who is also due to be tried in Manhattan federal court.
Ghailani was taken into custody in Pakistan in July 2004 and interrogated outside the United States as part of the Bush administration's secret "extraordinary rendition" program under which terrorism suspects were captured in one country and interrogated in another at secret CIA “black sites”.
He was transferred to Guantanamo Bay in 2006 and his case was moved to Manhattan federal court last June.
Ghailani, allegedly a former cook and bodyguard to Osama bin Laden, pleaded not guilty to federal conspiracy charges in June, including plotting with other members of al-Qaeda to kill Americans, and separate charges of murder for the 224 people killed in the African bombings.
In oral arguments before U.S. District Judge Lewis Kaplan, lawyers for Ghailani said the "political decision" to put off a trial while he was interrogated should not mean he gives up his rights under the U.S Constitution.
The government "clearly chose to ignore his Constitutional rights ... and instead chose to transform him from an accused defendant to an intelligence asset and relegated him to a modern-day gulag," said defense lawyer Peter Quijano.
But Assistant U.S. Attorney Michael Farbiarz said the burden of proof for the case to be thrown out lies with the defense and Ghailani had failed to demand a speedy trial while held at Guantanamo Bay.
"The government is not trying to gain an advantage over the defendant at trial," but to "incapacitate others" and pursue "third parties," said Farbiarz.
"I think everybody can agree that whatever I do here would be unprecedented," the judge said, alluding to the importance of the proceeding, which coincided with the anniversary of the first group of 20 detainees being brought to Guantanamo Bay's Camp X-Ray in 2002.
"Enhanced interrogation techniques"
Lawyers were barred from discussing Ghailani's interrogations. But at one point, Quijano said "enhanced interrogation techniques" were used on Ghailani during a five-day period." That term is commonly used to describe simulated drowning and other methods of torture.
"For the first two months in the black site..., he literally did not know whether the next morning he'd be taken out and shot," attorney Peter Quijano told federal Judge Lewis Kaplan.
The treatment "reduced him to a state of helplessness, where he was physically, emotionally and psychologically unable to resist."
Farbiarz then approached Quijano, who indicated he would not say any more on the subject.
The case is a test of President Barack Obama's decision to close Guantanamo and end years of shadowy legal procedures against terrorism suspects.
Manhattan federal court has held other major terrorism cases, including that of Omar Abdel-Rahman, who was convicted in 1995 for conspiring to blow up New York City landmarks.