United States v. Ghailani (S.D.N.Y. May 10, 2010)

May 11, 2010

* United States v. Ghailani (S.D.N.Y. May 10, 2010) (denying motion to dismiss on grounds of outrageous government conduct)

In a ruling with some relevance to the current debate regarding interrogation of terrorism suspects who may ultimately be subject to criminal prosecution, Judge Kaplan has denied a motion to dismiss the indictment brought by Ahmed Ghailani, the former GTMO detainee now facing prosecution in New York for his alleged role in the 1998 East African embassy bombings. Ghailani had argued that he had been tortured while in CIA custody, and that this constituted “outrageous government conduct” warranting the remedy of dismissal of the indictment. Judge Kaplan disagreed, citing the Ker-Frisbie doctrine:

This case follows a fortiori from the rationale of the Ker-Frisbie rule. Ghailani is charged here with complicity in the murder of 224 people. The government here has stated that it will not use anything that Ghailani said while in CIA custody, or the fruits of any such statement, [FN20] in this prosecution. In consequence, any deprivation of liberty that Ghailani might suffer as a result of a conviction in this case would be entirely unconnected to the alleged due process violation. Even if Ghailani was mistreated while in CIA custody and even if that mistreatment violated the Due Process Clause, there would be no connection between such mistreatment and this prosecution. If, as Ker-Frisbie holds, the illegal arrest of a defendant is not sufficiently related to a prosecution to warrant its dismissal, it necessarily follows that mistreatment of a defendant is not sufficient to justify dismissal where, as here, the connection between the alleged misconduct and the prosecution is non-existent or, at least, even more remote. Certainly the government should not be deprived here “of the opportunity to prove his guilt through the introduction of evidence wholly untainted by [any
government] misconduct.” [FN21] Any remedy for any such violation must be found outside the confines of this criminal case. Read the rest of this entry »