Recently, Sulaiman Abu Ghaith, Osama bin Laden’s son-in-law and reported longtime member of al-Qaida, pleaded not guilty in a New York federal court to the charge of conspiracy to kill Americans. The decision by the Obama administration to try Abu Ghaith in federal court has reignited a debate over the proper venue to bring high-profile terrorists to justice.
In 2010, President Obama attempted to try 9/11 mastermind Khalid Sheikh Mohammed in criminal court, but reconsidered under pressure from members of Congress and New York City officials.
A trial near Ground Zero affords [Abu Ghaith] a unique stage and ironic opportunity to put the United States on trial. He may allege war crimes on the basis of enhanced interrogation techniques and drone killings in order to incite hatred against the United States.
- Alberto Gonzales, Former U.S. Attorney
Government lawyers advised President Bush to adopt a law of war framework immediately following the 9/11 attack. Because of that decision we were able to provide the commander in chief with multiple options to deal with captured enemy combatants.
Depending on the circumstances, the U.S. has the option to try them in a military commission or in federal court. The U.S. also has the option to return enemy combatants to their home country for further detention or trial, or simply detain them under the laws of war, without charges, for the duration of hostilities.
The Obama administration has not disclosed how it made the decision to bring Abu Ghaith into the United States. In the Bush administration, participants in the National Security Council interagency process worked to reach a consensus recommendation for the president. At times the interagency struggle to control the disposition of an enemy combatant was fierce. The views of the Department of Defense and the Central Intelligence Agency carried significant weight obviously.
Whether they did so in this case is unclear. It is possible President Obama made this decision during a period of uncertainty at each agency. Both Secretary of Defense Chuck Hagel and CIA Director John Brennan recently survived tough confirmation battles. The possible absence of the judgments of senior leaders at the Department of Defense and CIA may have contributed to the president’s decision.
I have always believed that circumstances and timing should dictate the appropriate disposition of high-profile detainees. Having said that, I recognize that there are challenges to a criminal trial of someone like Abu Ghaith. For example, because he was captured overseas our government may have problems introducing certain physical evidence and incriminating statements in court.
Under our Constitution, Abu Ghaith is entitled to confront witnesses. He is likely to try to force the U.S. government to make tough choices by subpoenaing senior military and intelligence officers away from their duties on the front lines, and demanding access to detainees at Guantanamo Bay.
Security for a criminal trial will be extensive and costly for New York City and the federal government.
Finally, a trial near Ground Zero affords this defendant a unique stage and ironic opportunity to put the United States on trial. He may allege war crimes on the basis of enhanced interrogation techniques and drone killings in order to incite hatred against the United States, embarrass our government and recruit more jihadists. These are principally the same reasons President Obama was forced to reconsider his plans to try Khalid Sheikh Mohammed in a criminal court.
The U.S. has successfully tried hundreds of terrorism related cases in our criminal courts, but an overwhelming majority of these cases were prosecuted prior to 9/11, well before we were at war. In an ongoing conflict, military necessity and national security concerns limit options and discretion for prosecutors.
The conviction of other terrorists, such as Zacarias Moussaoui, demonstrates the ability of our federal government to use our criminal courts to bring a high-profile detainee to justice. However, Moussaoui in essence represented himself and pled guilty. Yet it still took our government several years, at the cost of millions of dollars, to send him to prison.
Obtaining a guilty verdict here will be significantly more difficult if Abu Ghaith is represented by a high-profile legal team and decides to fight his conviction at trial.
The military commission for Khalid Sheikh Mohammed is proceeding at Guantanamo Bay, but at times it appears that some members of the Obama administration believe that only criminal trials will show the world our commitment to the rule of law.
I do not know what I do not know about the government’s case against Abu Ghaith, and whether a criminal trial is the best course for our country to bring him to justice, or even whether now is the best time to do so.
I do know that trying him by military commission under procedures approved by Congress would also be consistent with the rule of law. I also know detaining him for the duration of hostilities would likewise be consistent with the rule of law.
Perhaps this decision was made after a careful and full vetting in the interagency process; perhaps Abu Ghaith has low intelligence and symbolic value, and the timing and circumstances require a criminal trial; and although the White House apparently no longer has the funds to give White House tours, perhaps the costs of an expensive criminal trial are no longer an overriding concern.
It is my hope that all this is true, and that the administration has elected to pursue this present course because it is the best way to bring Abu Ghaith to justice consistent with our national security. If so, this is how we best honor the rule of law.
Alberto R. Gonzales is the former U.S. Attorney General and White House Counsel in the George W. Bush Administration. Presently he is the Dean and Doyle Rogers Distinguished Professor of Law at Belmont University College of Law.