As Katie reported on Friday, the Obama administration has chosen to prosecute Osama bin Laden's son-in-law in a Manhattan civilian courtroom, rather than a military tribunal in a secure location. Sulaiman Abu Ghaith, an Al Qaeda spokesman, was captured in Jordan last week. The White House sprung its decision on the legal and political community unexpectedly, and Republicans are scrambling to denounce the reckless, political plan:
The Obama administration’s decision to try former al Qaeda spokesman Sulaiman Abu Ghaith, a relative of Osama bin Laden, in a New York federal court has sparked an uproar that it could compromise classified intelligence. Republicans say he should be held at the Guantanamo Bay prison camp and tried by a military tribunal, not a federal civilian court. They say the administration is putting New York at risk of terrorist attack by holding the trial there and warn security costs will run in the millions of dollars....[Rep. Trey] Gowdy (R-SC) said a military tribunal would offer distinct advantages over a civilian jury trial, namely that military courts are made up of military officers and don’t require unanimous jury verdicts for conviction. But Gowdy said his bigger concern is the difference in the discovery process between military and civilian courts. In a federal court, Abu Ghaith could gain insights into the sources of methods of classified operations by demanding a thorough accounting of the evidence in discovery, Gowdy said.
Republican senators have also criticized the administration’s decision. “We are disturbed by the Administration’s decision to bring Sulaiman Abu Ghaith—a foreign member of al Qaeda charged with conspiring to kill Americans – to New York for trial in federal court,” Sens. Lindsey Graham (R-S.C.), Kelly Ayotte (R-N.H.) and John McCain (R-Ariz.) said in an updated statement Friday. “The Obama Administration’s lack of a war-time detention policy for foreign members of al Qaeda, as well as its refusal to detain and interrogate these individuals at Guantanamo, makes our nation less safe,” the said. ? Senate Republican Leader Mitch McConnell (R-Ky.) blasted the administration’s decision. “At Guantanamo, he could be held as a detainee and fulsomely and continuously interrogated without having to overcome the objections of his civilian lawyers,” McConnell said in a statement Friday.
The White House brushes off these criticisms, claiming that a "broad consensus" exists among the national security community in support of civilian trials for foreign terrorists. There's little doubt that this supposed consensus isn't nearly as far-reaching as the administration would have us believe. There's also the minor detail that Congress -- the federal branch most directly accountable to the people -- conducted a painstaking, judicially-reviewed process of constructing a legal apparatus for prosecuting terrorists in military tribunals, off of American shores. The resulting military commissions regime achieves due process and justice without affording terrorists a full panoply of constitutional rights. It also spares American taxpayers the expense (and the peril) of trying dangerous jihadists in places like downtown Manhattan. Former federal prosecutor Andrew McCarthy, who convicted the "Blind Sheikh" for his role in the 1993 World Trade Center bombing, is galled by the administration's actions:
In the blink of an eye, the second Obama term has turned the clock back to the pre-9/11 days, when al-Qaeda was a law-enforcement problem, not a national-security challenge. Remember the great ruckus over the administration’s attempt to give Khalid Sheik Mohammed & Co. a civilian trial in lower Manhattan? In what would, in effect, reward their savagery in killing nearly 3,000 Americans a few blocks from the federal courthouse, the administration proposed to endow them with all the constitutional rights and peacetime civilian due process protections of American citizens, despite the fact that the American people’s representatives in Congress — having authorized wartime combat operations against our jihadist enemies — had fashioned a military-commission system for the trial of alien enemy combatants. The administration gambit was unsuccessful because the public, even in blue, blue New York City, rose up in protest, spurring congressional outrage and, eventually, legislation barring the executive branch from using public funds to transfer terrorists from Gitmo to the U.S. for civilian prosecution. The message could not have been clearer: For enemy combatants, it is military commissions or no trials at all, not civilian due process. Well, the administration has never forfeited its goal of returning to the Clinton-era counterterrorism, when all terrorists were deemed defendants presumed innocent, not enemies to be quelled.
McCarthy believes the president is deliberately acting to undermine a military commissions system he's never supported. This White House was hamstrung by strong public sentiment and Congressional action in its first term. Now all bets are off. Here's McCarthy building the case that the administration may be angling to shift 9/11 mastermind Khalid Sheikh Mohammed's trial back into the civilian column, as well:
Was this high-ranking member of the enemy forces shipped to Gitmo for long-term detention and interrogation in the hope of gleaning fresh intelligence? Of course not. Because Abu Ghayth was not detained at Gitmo, he was not subject to the statutory prohibition against using government funds to transfer enemy combatants into the U.S. So, while no one was paying attention, the administration whisked him into lower Manhattan, where his indictment in civilian court was promptly announced. He thus promptly received legal representation — so much for interrogation — and is enjoying all the protections of the Bill of Rights ... Understand what this means. Other than the relative notoriety of the culprits, bringing Abu Ghayth to New York is no different from bringing KSM to New York for a civilian trial. The Obama administration’s intention is to try the same case against Abu Ghayth that it planned to present against KSM. This is a bold presidential decision to undermine military commissions and to proclaim that the civilian courts are the government’s venue of choice for all terrorism cases — even those against wartime enemy combatants. Moreover, as Attorney General Holder must know, by proceeding with this civilian prosecution in New York at the very moment when KSM and the other 9/11 defendants are facing a military commission at Gitmo, he has given KSM & Co. an exquisite legal argument that proceeding with their military commission would be arbitrary and unjust in light of the grade-A due process Abu Ghayth is getting. That is, the government is virtually inviting the federal courts to invalidate military commissions — which was a top goal of many Obama administration lawyers back when they were in private practice, volunteering their services to terrorist detainees.
The bipolarity of the Obama administration's counter-terrorism posture is confounding. On one hand, they cling to the goal of treating terrorism as a law enforcement proposition -- replete with risky civilian trials, shuttering Gitmo, and strict limits on interrogation methods. On the other, they've substantially expanded a lethal drone campaign that completely short circuits any notion of due process. So either we capture terrorists, extend them rights and legal protections, and treat them like common criminals, or we summarily execute them. This ill-conceived dichotomy forfeits a messy and difficult, but crucial, middle ground: The apprehension, detention, robust interrogation, and special prosecution of the enemy in a time of war.
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