SDNY Rejects Bid to Appoint Defense Counsel for Al-Liby

A federal judge has rejected an attempt by defense lawyers to challenge the Obama administration's decision to hold alleged Al Qaeda member Abu Anas Al-Libi aboard a U.S. Navy ship rather than delivering him to New York to face a pending indictment charging him with involvement in the bombing of U.S. embassies in Africa in 1998. U.S. District Court Judge Lewis Kaplan issued a decision Friday rejecting an attempt by the Federal Defenders of New York to be appointed as attorneys for Al-Libi. The udge also concluded that a federal court rule requiring that defendants be brought to court promptly can't be enforced until the suspect is actually in court. The rule, known as Rule 5, "is 'triggered only by federal criminal arrest,'" Kaplan wrote, quoting a footnote from a 2010 ruling he delivered in the case of another defendant in the embassy bombing case.

As the government argues, Rule 5 is "triggered only by federal criminal arrest."  The government denies that any federal criminal arrest has taken place, and there is no evidence to the contrary.  Thus, there is no proper basis on which the Court could conclude that the obligation to produce the defendant before it in a criminal case has come into existence.  The decision whether to proceed with a criminal prosecution of this indictment in the first instance, at least, is an Executive Branch function.  It remains to be seen whether such a prosecution will go forward. Even if it were clear that a federal criminal arrest had occurred, two judges of this Court previously have held that the appropriate time for the appointment of counsel is upon the arrival of the defendant in this district and the submission of a financial affidavit or other satisfactory proof of indigency.  I see no reason to depart from that view.  Moreover, once the defendant is presented, he is free to seek any appropriate remedy for any alleged violation of Rule 5. Finally, the Court is mindful of the fact that Mr. Patton's [ed: Attorney-in-Chief for Federal Defenders of New York] concerns may include the legality of the defendant's current detention, assuming that he is not detained pursuant to an arrest on this indictment.  But such questions are not properly cognizable under Fed. R. Crim. P. 5.  The Court therefore expresses no view with respect to the existence or nature of other means of raising such concerns.