US v. GHAILANI

687 F.Supp.2d 365

UNITED STATES of America, v. Ahmed Khalfan GHAILANI, Defendant.

No. S10 98 Crim. 1023(LAK).

United States District Court, S.D. New York.

January 21, 2010.

Michael E. Farbiarz, Nicholas J. Lewin, Assistant United States Attorneys, Preet Bharara, United States Attorney.

Peter Enrique Quijano, Esq., Gregory E. Cooper, Esq., Michael K. Bachrach, Esq., for Defendant.

MEMORANDUM OPINION

LEWIS A. KAPLAN, District Judge.

Ahmed Khalfan Ghailani, an alleged member of Al Qaeda, was indicted in this Court in 1998 and charged with conspiring with Usama Bin Laden and others to kill Americans abroad by, among other means, bombing the United States Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. An arrest warrant promptly issued. Some years later, Ghailani was captured abroad and turned over to the Central Intelligence Agency ("CIA"). Rather than execute the arrest warrant issued at the time of the indictment, the executive branch held Ghailani in CIA custody. Much later, he was transferred to secure facilities at the United States naval base at Guantanamo Bay, Cuba, where he remained until he was turned over to civilian authorities in June 2009 and presented pursuant to the warrant. He now stands charged with, among other crimes, conspiring to kill Americans both here and abroad, including by bombing the East African embassies.¹

On November 16, 2009, Ghailani moved to dismiss the indictment on the ground that the government has deprived him of his Sixth Amendment right to a speedy trial. He now moves, pursuant to Federal Rule of Criminal Procedure 16(a), to compel production by "the government," as that term is used in the rule, of various documents. As initially filed, the instant motion requested production of a variety of documents pertinent either to the pending speedy trial motion or to the charged conduct.² The prosecution objected to Ghailani's requests, and the Court heard oral argument on December 9, 2009. The parties joined issue on both the meaning of the term "the government" as it appears in the rule and the "materiality" of the requested documents.

Following oral argument, the parties renewed their efforts to resolve the outstanding discovery requests. By joint letter dated December 23, 2009 (the "Joint Letter"), the parties informed the Court that the overwhelming majority of specific and general discovery requests contained in the defendant's motion had been resolved.³ Only two remaining requests or groups of requests are ripe for decision:

1. Specific Request/Demand No. 2 (the "Bullet Point Memorandum"): "The Department of Justice `bullet point' memorandum, dated, redacted from the Southern District of New York to Main Justice concerning the detention, interrogation, and/or prosecution of Mr. Ghailani (see Transcript, dated, November 5, 2009, at 44 filed by Court Reporter under seal)."⁴

2. General Request/Demand Nos. 1-6 ("General Requests 1-6"): "Any and all communications and/or discussions (including, but not limited to, letters, emails, and/or memorandum) between the CIA, the FBI, any other intelligence agency, the Department of Justice (including, but not limited to, the United States Attorneys Office), and the Executive Branch (including, but not limited to, President Bush and/or Obama, as applicable, Vice-President Cheney and/or Biden, as applicable, the Attorney General and/or the Secretary of Defense) related to" (1) the decision to transfer the defendant to a CIA black site after his arrest, rather than to the Southern District of New York ("SDNY") for prosecution, (2) the decision to transfer the defendant from a CIA black site to Guantanamo Bay, Cuba, rather than the SDNY for prosecution, (3) the decision to prosecute the defendant in a military commission at Guantanamo Bay, rather than in the SDNY, (4) the decision to prosecute the defendant before an Article I court rather than an Article III court, (5) the decision to prosecute the defendant in the SDNY rather than in a military commission, and (6) the decision to prosecute the defendant before an Article III court rather than an Article I court.⁵

The defense, moreover, has narrowed General Requests 1-6 to those responsive documents that are "in the possession, custody, or control of the Department of Justice and that indicate that the Government's `reason for delay' of Mr. Ghailani's instant prosecution was a reason other than the interests of national security as described more fully in the Government's Response to Defendant's Speedy Trial motion."⁶

Discussion

Discovery from the government in federal criminal cases was largely unavailable until the adoption of the 1966 amendment to Rule 16 of the Rules of Criminal Procedure.⁷ Since then, its availability gradually has broadened. Insofar as it is important to this motion, the current version of the rule provides:

"(E) Documents and Objects. Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs ... or portions of any of these items, if the item is within the government's possession, custody or control and:

"(i) the item is material to preparing the defense."⁸

Thus, in order to determine Ghailani's right to disclosure of particular materials, it is necessary to decide whether those items are "material to preparing the defense" and, if so, whether they are within the possession, custody, or control of "the government" as that term is used in the rule.⁹ In addition, note must be taken that Rule 16(a)(2) exempts from the government's rule-based discovery obligations certain work product or work product-like information:

"Except as rule 16(a)(1) provides otherwise, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case."¹⁰

The parties disagree over both the materiality of the two disputed discovery requests and the proper scope of "the government" for purposes of Rule 16. Neither has addressed the question whether any responsive documents nonetheless would be protected from disclosure by Rule 16(a)(2).

The Bullet Point Memorandum

At a pretrial conference, the government described the Bullet Point Memorandum as being "something of an order of proof with respect to Ghailani" sent from the United States Attorney's Office for the Southern District of New York (the "USAO") to the Department of Justice ("DoJ") in Washington on redacted¹¹

This memorandum is a "report, memorandum, or other internal government document " made by prosecutors for the government in connection with prosecution of this case within the meaning of Fed.R.Crim.P. 16(a)(2).¹² It therefore is protected against disclosure regardless of its materiality. Defendant's request for it must be denied.

General Requests 1-6

Materiality

In Barker v. Wingo,¹³ the Supreme Court adopted a four-prong balancing test for determining whether a defendant's Sixth Amendment right to a speedy trial has been violated. Courts must consider (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the speedy trial right, and (4) the prejudice suffered by the defendant.¹⁴ In opposing the defendant's speedy trial motion, the government argues that national security justified delaying Ghailani's federal prosecution and that the second Barker factor therefore favors the prosecution.¹⁵

In light of the government's stated position on this issue, any communications among pertinent government agencies and officials tending to indicate that the "reason for delay" in prosecuting Ghailani on this indictment was other than the interests of national security described in the government's response would be material to the defense because they would undermine the government's speedy trial motion position as to the reason for delaying this prosecution. The Court therefore holds that General Requests 1-6, as narrowed by the Joint Letter, are "material to the defense" within the meaning of Rule 16(a)(1)(E). The question remains, however, as to whether these documents are within the possession, custody, or control of "the government."

Possession, Custody, or Control

The scope of the prosecutor's disclosure obligations under Rule 16 turns on the proper construction of the phrase "the government" as that term is used in Rule 16(a)(1)(E). Of course, we all use the phrase "the government" to refer broadly to the institutions by which we order our civic affairs. But the term has a more specialized and, regrettably, not fully articulated meaning in the context of Rule 16. On the one hand, it most definitely does not encompass the entirety of the federal government.¹⁶ On the other, it surely includes at least the prosecutors working on the case. Where between these extremes the dividing line falls, however, is somewhat uncertain.¹⁷

The parties agreed at oral argument that the term "the government" for this purpose includes, inter alia, the prosecutors working on Ghailani's prosecution, the Criminal Division of the USAO and any USAO Civil Division personnel who are or were working with the Criminal Division, on this case, the Assistant United States Attorneys on the prior Embassy bombing trial, FBI or other law enforcement agents now or previously assigned to the prosecution team, and members of "Main Justice"¹⁸ who have been involved with this prosecution.¹⁹ They disagree, however, as to whether the phrase includes also those parts of the FBI and Main Justice that have not been "intimately involved" with federal prosecution of the charged conduct.²⁰ The fundamental question, then, is whether the phrase "the government" as used in that rule extends beyond the USAO and the trial team up into Main Justice and the FBI and, if so, how far. Two sources of learning illuminate this question, although neither controls the...