transferred to the Southern District of New York to be tried on the earlier indictment. The transfer occurred in May 2009.
Ghailani moved for an injunction or other relief against the Secretary of Defense to prevent the reassignment of the military defense attorneys who had been detailed to serve as his defense counsel before the military commission. Ghailani urged the court to order the government to permit the two officers to act as his appointed counsel in federal court, arguing that depriving him of the assistance of the counsel he had grown to trust amounted to a violation of his Sixth Amendment right to the effective assistance of counsel. The government urged the court to decline to adjudicate the motion or grant relief based on the political question doctrine, arguing that the assignment of military officers to particular duties is the prerogative of the executive branch alone. The judge did not think the political question doctrine prevented his consideration of the matter, since he was not considering the propriety of the reassignment as much as he was assessing the impact of the decision on the defendant's rights, but ultimately denied the motion, holding that an indigent defendant's right to appointed representation does not mean the right to continuous representation by counsel of his choice.[1]
Ghailani has also filed a motion for dismissal of his indictment based on his claim that the government violated his Sixth Amendment right to a speedy trial. In connection with this motion, Ghailani sought discovery of documents in the government's possession that demonstrate the government delayed his prosecution from 2004 until his transfer to New York for reasons other than national security. Rule 16 of the Federal Rules for Criminal Procedure permits discovery of items "within the government's custody, possession, or control" that are material to the case, excluding documents that were prepared by government attorneys or agents that constitute work product connected to the prosecution. The judge excluded one document specifically requested by the defendant as attorney work product, but approved a more general request for information relating to the reasons behind the timing of Ghailani's transfer for trial based on a Supreme Court ruling that makes the "reason for delay" one part of the test for determining whether charges must be dismissed for failure to provide a speedy trial.[2] The judge defined the scope of "in the government's possession, custody, or control" as reaching beyond the officials of the U.S. Attorney's Office who had worked on the case to include higher-level DOJ officials who were not intimately involved in the case but were involved in the decision about where to prosecute Ghailani. This requirement will not unduly burden the prosecution with unreasonable discovery requirements, according to the court, because the embassy bombing crime had "commanded the attention of the highest levels" of the government long before Ghailani was in American custody. Under these circumstances, high-level officials involved in the important decisions involving Ghailani's treatment can be included within the meaning of "government" in Rule 16.[3] Accordingly, the judge issued an order requiring production of documents held by the DOJ that are material to the case and not otherwise privileged under the rule.
- ↑ United States v. Ghailani, No. S10 98 Crim. 1023, slip op. at 30, 2009 WL 3853799, at *11-12 (S.D.N.Y. Nov. 18, 2009) (citing Morris v. Slappy, 461 U.S. 1, 14 (1983); Wheat v. United States, 486 U.S. 153, 159 (1988)).
- ↑ 58 United States v. Ghailani, No. S10 98 Crim. 1023, slip op. at 7-8, 2010 WL 653269, at *2-3 (S.D.N.Y. Jan. 21, 2010) (citing Barker v. Wingo, 407 U.S. 514 (1972)).
- ↑ Id., slip op. at 12, 2010 WL 653269, at *4.
Congressional Research Service17
