Keep terrorism trials in U.S. courts

This is a crosspost from Reuters.

On Friday morning in downtown Manhattan, Osama bin Laden’s son-in-law appeared in a federal courtroom to be charged with conspiring to kill Americans. In a sober, orderly proceeding that lasted a total of 17 minutes, Judge Lewis Kaplan explained to Suleiman Abu Ghaith his rights, appointed his defense lawyers, read the charges against him, recorded his plea of “not guilty,”ordered the prisoner’s continued detention and announced that he would set a trial date for the case in 30 days.

Prosecutors have already turned over the bulk of their unclassified evidence against the defendant. Abu Ghaith, who was transferred to New York from Jordan on March 3, is reportedly cooperating with federal authorities and providing important information about al Qaeda.

It was, in others words, an ordinary, orderly federal court arraignment in an international terrorism case. Almost 500 such defendants have been convicted in U.S. federal courts on U.S. soil since the terrorist attacks of September 11, 2001.

But if senators like John McCain (R-Ariz.), Lindsey Graham (R-S.C.) and Kelly Ayotte (R-N.H.) had their way, it never would have happened. Instead, observers would likely have been treated years hence to something like what we saw in Guantanamo Bay with the case of the five alleged September 11 co-conspirators: a 13-hour fiasco at which the defendants alternately ignored and yelled at the judge, prayed on the floor, refused to enter a plea and threatened to commit suicide.

On Friday, Graham, Ayotte and McCain issued a public statement saying they were “disturbed” that the Obama administration brought “a foreign member of al Qaeda” to court in New York rather than to a military commission in Guantanamo Bay, saying it “makes our nation less safe.”

That’s nonsense.

No terrorism case brought in the United States since 9/11 has created security problems. Sixty-seven were foreigners captured abroad. At the hearing in New York on Friday, courthouse security operated smoothly and efficiently. Those of us in the courtroom didn’t see a single disruption in the proceedings. The handcuffed defendant was brought into the room by security guards, was seated next to his lawyers and addressed the court respectfully.

Indeed, the stark contrast in the arraignment proceedings in these two complex international terrorism cases heard in New York is typical of the differences in the way cases proceed in civilian federal courts in the United States and the way they proceed in the makeshift military commissions plodding along on a remote U.S. military base in Cuba.

I’ve been attending the military commission proceedings at Guantanamo Bay for several years now, and they’re usually spectacles of the absurd, characterized by detainee outbursts and a bewildered military judge, with no experience in trying terrorism cases, struggling to apply confusing laws and procedures to a brand-new court system with no legal precedents.

Since the arraignment of the 9/11 defendants, for example, the pre-trial hearings in that case have been dominated by unanswered questions about whether the government is eavesdropping on defense lawyers and unlawfully confiscating privileged attorney-client communications; problems created by an overly complicated audio security system that even the judge doesn’t understand; and defense lawyers’ complaints about the extraordinary challenges of communicating with their clients due to the prison’s remote location.

In federal court on Friday morning, it was clear none of those would be problems in this case. Kaplan – the judge who presided over the trial of Ahmed Ghailani, whom he sentenced to life in prison for the 1998 bombings of the U.S. embassies in Kenya and Tanzania – was in complete control of his courtroom. Only the usual  guards were in the courtroom, and security was never an issue.

As for concerns about protection of classified evidence, Kaplan acknowledged the Classified Information Procedures Act would govern the handling of classified evidence. The government prosecutor promised to report back within 30 days whether it intends to use any.

Unfortunately, since President Barack Obama’s election in 2008, his opponents have claimed he is “soft on terror” because of his faith in the federal court system to do the job it’s been successfully doing for more than two centuries. In the rush to score political points, Obama’s critics ignore that the Guantanamo military commissions, now in their third iteration since the Supreme Court ruled the first version unconstitutional, have been a colossal failure.

In 12 years, the military commissions have convicted only seven individuals. One conviction, of Osama bin Laden’s driver, was recently reversed on appeal. It was overturned for exactly the same reason that a conviction in the Abu Ghaith case would likely be reversed if it were brought in a military commission.

Salim Hamdan, the driver, was convicted for “material support for terrorism” – not traditionally considered a war crime. Since the military commissions only have jurisdiction over war crimes, the D.C. Circuit Court of Appeals in October ruled that the commissions didn’t have the authority to convict Hamdan. Similarly, in this case, Abu Ghaith is charged with conspiracy to kill Americans in 2001 and 2002. Conspiracy has never before been considered a war crime. So any conviction on that charge by the commissions would likely face the same fate in an eventual appeal.

McCain, Graham and Ayotte surely know this. The D.C. court opinion received a significant amount of attention last fall. The claim that Abu Ghaith should have been brought to Guantanamo Bay instead of New York is simply political posturing.

Sadly, this action is again dangerously politicizing a serious matter that goes to the heart of U.S. national security: Whether we use a fair and credible justice system to try suspected terrorists.

Because the military commissions operate offshore and are not publicly accessible, the American public may not realize what a fiasco they’ve been. But like all civilian federal courts in the United States, Kaplan’s courtroom is public – open for all the world to see.

What we saw Friday was something we all can be proud of.


Published on March 11, 2013


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