Just months before a Libyan terrorism defendant is scheduled for trial in New York, a dispute has arisen over who is paying his legal fees and whether his poor health would interfere with resolving that issue.
The defendant, Nazih Abdul-Hamed al-Ruqai, who is being held at the US Bureau of Prisons’ Federal Medical Center in Butner, North Carolina, is “terminally ill,” his lawyer said in a court filing on Thursday.
Ruqai, 50, is facing conspiracy charges stemming from al-Qaeda’s 1998 bombings of two US embassies in East Africa, which killed 224 people. His health has been an issue in his case since he was captured by US forces in Tripoli in October last year. Ruqai is to be tried in November in Manhattan with two codefendants in the US District Court.
US Federal prosecutors first raised the fees issue after Ruqai appeared in court last fall, but they apparently did not press the matter. Then, this month, in a letter to US federal judge Lewis Kaplan, prosecutors wrote that Ruqai’s lawyer, Bernard Kleinman, had acknowledged to them that his fees were being paid by a third party, but would not say by whom.
Citing unidentified US officials, the Washington Post reported in February that Ruqai’s legal fees were being paid by the Libyan government. A party familiar with the arrangement also confirmed to the New York Times this month that Libya had retained Kleinman to represent Ruqai.
First held in military custody aboard a US Navy ship and interrogated for intelligence purposes, Ruqai, who also goes by Anas al-Libi, was moved, as his chronic health conditions worsened, into the custody of the US Justice Department and brought to the US for medical treatment.
The office of US Attorney Preet Bharara asked in a letter to Kaplan: “Who is paying him [Kleinman] to represent the defendant and what, if any, instructions or advice he has received?”
A hearing has been scheduled for Wednesday.
A defendant’s legal fees can be paid by another person or entity, a legal expert said, but courts must ensure that the defendant’s interests are the lawyer’s sole concern. The paying party has no right to learn confidential information or to participate in strategy decisions, the expert said.
Bharara’s office, citing previous court rulings, said in the letter that accepting such payments might “subject an attorney to undesirable outside influence” and raise “an ethical question as to whether the attorney’s loyalties are with the client or the payor.”
The prosecutors asked that Kaplan question Ruqai to ascertain whether he understood the potential conflicts.
Kleinman, in a filing on Thursday, criticized the prosecutors for waiting so long to raise the fees issue, and he suggested that the US government might be trying to remove him from the case. Kleinman did not elaborate on his client’s “terminally ill” condition, but he suggested that it might be hard for Ruqai to be brought to New York on Wednesday. He said his client had not waived his right to attend the hearing.
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