Photographer: Rick Friedman/Bloomberg
Photographer: Rick Friedman/Bloomberg

Are two years at a Central Intelligence Agency “black site” and three more in prison at Guantanamo Bay, Cuba, enough to violate the U.S. Constitution’s guarantee of a speedy trial?

If you think the answer is obviously “yes,” you’re wrong: A distinguished, liberal panel of the U.S. Court of Appeals for the Second Circuit held yesterday that Ahmed Khalfan Ghailani, who helped plan the bombings of U.S. embassies in Africa in 1998, did not suffer a violation of his constitutional rights when the government put him on trial nearly five years after catching him.

The judges had to torture the Constitution (you should pardon the expression) to get there, but their motive shows through in the opinion. And they made the correct call: If they had followed the usual constitutional logic, the government would have to hold all the current Guantanamo detainees indefinitely, instead of putting them on trial and getting them off the island.

Ghailani is a bad guy, of that there is little doubt. Recruited by al-Qaeda as early as 1996, he procured items necessary for the bombings of the U.S. embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, then disappeared. While he was on the lam, he was indicted for his role in the bombing -- which means that when they caught him, government prosecutors had the evidence to put him on trial.

Life Sentence

Instead, he spent two years in an unnamed CIA facility where he was, it appears, subject to the “enhanced interrogation” regime with which we have sadly become familiar. In 2006, it seems, his sell-by date expired; he was transferred to Guantanamo and deemed an alien enemy combatant. He was slated to be tried by a military commission, but in 2009, the Barack Obama administration chose to give him a civilian trial in New York, at which he was convicted and sentenced to life in prison.

The Sixth Amendment clearly says that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The word “speedy” may be a little ambiguous, but five years in the modern equivalent of a dungeon, some of it on the modern equivalent of the rack, would certainly not have seemed speedy to our Founding Fathers.

In applying the provision to Ghailani, though, the appeals court cited the Supreme Court, saying that speedy-trial rights are a balancing test, and that delays are prohibited only if unreasonable in light of the “public and private interests” at stake. Once balancing came into the picture, Ghailani’s case was doomed. The government’s interest in delay was national security -- and what information it could get out of a known al-Qaeda operative.

Against this most compelling governmental interest, Ghailani’s interest in going to trial quickly would inevitably look puny. Adding insult to injury, the appeals court quoted -- apparently with approval -- a lower court’s conclusion that any prejudice to his case the prisoner suffered by enhanced interrogation at a CIA black site was due to the interrogation techniques, not the fact of the delay.

It might seem unsettling that the opinion was written by Judge Jose Cabranes, whom Bill Clinton seriously considered for a Supreme Court seat. He was joined by Judge Pierre Leval, a Democratic appointee whom many liberal lawyers and scholars consider the wisest and most humane judge on the federal bench, and Judge Barrington Parker, a moderate appointed to the district court by Bill Clinton and then to the appellate court by George W. Bush.

But the judges’ hands were tied -- and therein lies a tale. What if they had sided with Ghailani, holding that CIA questioning and/or Guantanamo detention violated the speedy-trial requirement?

Great Latitude

The consequence would have been that the government would not be able to bring any current or future detainees to civilian trial at all. Without the option of putting them on trial, the U.S. would simply hold them indefinitely as enemy combatants, a detention that the Obama administration considers within its rights under the laws of war and that Congress has essentially endorsed. As the court put it, this result “would hardly advance the interests of defendants or the values underpinning the Speedy Trial Clause.”

So, in effect, this liberal-leaning appellate panel gutted the right to a speedy trial in national security cases because the alternative of eternal detention was much worse. The judges didn’t openly admit this -- in fact, the opinion noted that there would still have to be a case-by-case assessment for delaying each individual case. But, realistically, courts will defer to the government’s assertion that it had pressing national security reasons to detain and question the accused. Indeed, courts will usually have no choice but to defer to what the government tells them, since the content of the interrogations, not to mention their manner and place, will usually remain highly classified.

Yesterday’s decision will have significant knock-on effects. Because the Obama administration does not want to send more people to Guantanamo, the emerging standard practice is to have the CIA interrogate new detainees aboard ships, sometimes for months. Then, still aboard ship, the FBI reads him his rights and repeats the questioning, this time with the answers supposed to be admissible at trial. Whether to admit such testimony is an issue on which the courts will have to rule, but the Ghailani decision strongly hints that even liberal judges will be inclined to give the government great latitude in the hopes of convincing it to grant terror suspects their day in court.

Misguided Policies

Behold the costs to the rule of law created by the war on terrorism. It’s not so much that we can expect long trial delays in future non-national security cases, though the precedent is now on the books to allow that. Rather, the government’s policies, pursued by Republican and Democratic administrations alike, have created a new reality through which the judicial system must navigate. The Second Circuit’s decision on speedy trials is probably right -- but the policies that demanded it are very wrong.

(Noah Feldman, a law professor at Harvard University and the author of “Cool War: The Future of Global Competition,” is a Bloomberg View columnist. Follow him on Twitter at @NoahRFeldman.)

To contact the writer of this article: Noah Feldman at noah_feldman@harvard.edu.

To contact the editor responsible for this article: Tobin Harshaw at tharshaw@bloomberg.net.