Ahmed Khalfan Ghailani (FBI).

A federal judge has ruled that the government must turn over memos by high-ranking Justice Department officials on the transfers of alleged terrorist Ahmed Khalfan Ghailani, the first Guantanamo detainee to move from the military commission system to civilian court, according an article in the New York Law Journal.

U.S. District Judge Lewis A. Kaplan ruled in an opinion unsealed Wednesday that prosecutors must produce the memos because they could shed light on why Ghailani was kept out of the criminal justice for almost five years.

In the opinion, Kaplan argued that the DOJ official’s memos fall under the the prosecution’s discovery obligations because the officials can be considered part of the “government” as defined by the Rules of Criminal Procedure.

“Even if those officials had no other involvement with Ghailani’s investigation or prosecution, the decisions at issue were so important to the timing and progress of this case that participation in decisionmaking renders those individuals members of the prosecution team, at least to the extent of that participation,” Kaplan wrote in the opinion.

Kaplan’s opinion was sealed after it was written in January to allow court officers time to vet the ruling to prevent disclosing national security information.

The opinion could provide ammunition for critics of Attorney General Eric Holder’s decision to try Guantanamo detainees in civilian court. Republicans, and some Democrats, have argued that evidence produced in such trials could reveal information about the U.S. anti-terrorism efforts against al-Qaeda and others.

Ghaliani allegedly took part in an al-Qaeda plot to destroy U.S. embassies in Tanzania and Kenya in 1998. He was arrested in Pakistan in 2004 then transferred to a CIA “black site.” In 2006, he was sent to Guantanmo before ultimatley being charged in a New York federal court last year.

Ghailani’s lawyers sought the DOJ memos in an attempt to dismiss his indictment on speedy trial grounds. Lead prosecutor Assistant U.S. Attorney Michael Farbiarz argued that because the DOJ officials were not intimately involved with the case the memos did not have to be produced in discovery.

The Justice Department said today that it transferred Guantanamo Bay detainee Ahmed Khalfan Ghailani to Manhattan this morning — the first time a prisoner from the military prison has been brought to the continental U.S. to stand trial.

Ghailani, a suspect in the 1998 East Africa embassy bombings, had been detained at the Cuban facility since September 2006. He left the custody of the Defense Department this morning and was brought to the Southern District of New York by the U.S. Marshals Service, the Justice Department said. The former Guantanamo Bay prisoner is currently in the Metropolitan Correctional Center where he is waiting to make his first appearance before a New York federal court today, according to the Justice Department.

“With his appearance in federal court today, Ahmed Ghailani is being held accountable for his alleged role in the bombing of U.S. Embassies in Tanzania and Kenya and the murder of 224 people,” Attorney General Eric Holder said in a statement. “The Justice Department has a long history of securely detaining and successfully prosecuting terror suspects through the criminal justice system, and we will bring that experience to bear in seeking justice in this case.”

The DOJ fact sheet on handling terrorism suspects in the United States is here.

Ahmed Khalfan Ghailani

Amid intense public debate over closing Guantanamo Bay, The Department of Justice announced today that Ahmed Khalfan Ghailani, suspected Al-Qaeda terrorist and key player in the 1998 East African embassy bombings in Tanzania and Kenya, will be prosecuted in New York. Ghailani’s trial will mark the first time a Guantanmo Bay detainee will be tried in a court within the United States and plays into the now heated debate on what to do with detainees once the detention center is closed as planned.  President Obama gave a major national security address earlier today about his plan on closing Guantanmo Bay as well as his intentions to pursue prosecution of terror suspects in the United States court system. Obama cited the prior convictions of Zacarias Moussaoui and Ramzi Yousef in U.S. courts as examples of the effective nature of prosecuting terror suspects within the United States.  Yousef recieved a life sentence without possibility of parole and Moussaoui was sentenced to life in prison.

 According to the DOJ press release, Ghailani, who has been held at the Guantanamo Bay detention facility for nearly 3 years, finds himself accused of:

charges related to his role in the murder of more than 200 people in the 1998 bombings of the U.S. Embassies in Tanzania and Nairobi, Kenya, as well as his participation in an al-Qaeda conspiracy to murder, bomb, and maim U.S. civilians anywhere in the world.

Among other things, the superseding indictment alleges that Ghailani assisted in the purchase of the Nissan truck as well as the oxygen and acetylene tanks that were used in the bombing of the U.S. Embassy in Tanzania. He is further alleged to have participated in loading boxes of TNT, cylinder tanks, batteries, detonators, fertilizer and sand bags into the back of the truck in the weeks immediately before the bombing. Ghailani departed Africa for Pakistan the night before the bombing.

The decision to prosecute Ghailani on American soil comes on the heels of a foiled terror plot in New York City where four Muslim Americans had planned to bomb several synagogues and shoot down military aircraft in hopes of starting a jihad in the United States.  Meanwhile, Attorney General Eric Holder said in the DOJ news release:

By prosecuting Ahmed Ghailani in federal court, we will ensure that he finally answers for his alleged role in the bombing of our embassies in Tanzania and Kenya, thereby putting another known terrorist behind bars and sending a message to future suspects.