Latest Al Qaeda Conviction Again Proves Federal Court Best Venue for Terrorism Cases
On Friday, al Qaeda operative and American citizen Muhanad Mahmoud Al Farekh was convicted of nine counts, including conspiracy to murder U.S. nationals, conspiracy to use a weapon of mass destruction, and providing material support to terrorists for his part in the 2009 truck bombing of a U.S. Army base in Khost, Afghanistan. Al Farekh was captured by Pakistani authorities in 2014 and extradited to the United States to face trial. He was tried and convicted in the Eastern District of New York federal court in Brooklyn.
This terrorism case is the latest in a long line completed quickly, quietly, and effectively in federal courts—a notable contrast to those in the military commissions at the U.S. military base at Guantanamo Bay.
There are similarities between Al Farekh’s trial and the military commissions. The same black and gray suits worn by defense attorneys and prosecutors (though at Gitmo, some attorneys also wear their military uniforms), the same wheeled trays of legal files and evidence bags, the same hushed tones and respectful decorum.
The similarities end there, however. Although I have observed numerous Gitmo military commission hearings both at the remote island base and from a viewing station at Ft. Meade, Maryland, I have never actually observed a trial. Its current cases—the 9/11 trial, the USS Cole bombing case, and that against alleged al Qaeda commander Abd al Hadi al Iraqi—have been in pre-trial hearings for years. This is partially due to the prison’s remote location on the tip of Cuba, and partially due to the procedural confusion and government interference that have plagued the commissions, a patchwork trial system that falls short of international legal standards for fair trials.
By contrast, the Eastern District of New York court where Al Farekh’s trial took place was a 20-something minute trip from our offices, and largely proceeded without any hiccups. This is unsurprising, given U.S. federal courts’ decades of experience trying terrorism-related crimes and clear precedent on how to handle these cases. In fact, the U.S. government has used to the federal courts to win convictions in over 600 terrorism-related cases in 63 district courts across the country since 9/11. In 17 percent of these cases, the defendant was arrested or captured overseas, like Al Farekh. In the same time period, the military commissions have produced all of eight convictions, with three overturned entirely and one partially.
Federal courts can also deal with interruptions or irregularities, which regularly confound the military commissions. The one major complication the trial faced was that Al Farekh’s father was able to talk to some of the jurors on the day their deliberations started, pleading to see his son. Al Farekh’s attorneys requested a mistrial, but Judge Brian Cogan denied this, choosing instead to dismiss the jurors and replace them with substitutes. The disruption caused only an additional two days of jury deliberation. Something similar would undoubtedly derail military commissions proceedings for an extended period of time, as many other issues have.
Advocates of military commissions often claim that traditional law enforcement investigations are complicated by battlefield chaos, but Al Farekh’s case disproved this talking point. The court saw testimony regarding every stage of the investigation in Afghanistan, from the bomb tech who collected the evidence to the chemical/explosives analyst who pinpointed the explosive chemicals used in the bombs to the forensic investigator who identified hairs and handprints on the tape from the bomb package to a soldier who witnessed the bombing. The court also heard from investigators who tracked Al Farekh and his co-conspirators from Canada to Pakistan to Afghanistan.
Al Farekh, as an American citizen, could not have been tried in military commissions. But his crimes are similar to those allegedly committed by Gitmo detainees, and unlike the vast majority of those detainees, Al Farekh got his day in court. The case, which lasted a little over two weeks, was largely orderly and by the book. Al Farekh received an aggressive defense and was convicted by a jury.
Al Farekh’s case—like the one against Osama bin Laden’s son-in-law Suleiman Abu Ghaith, whose 2014 conviction was upheld last week—shows that federal courts can handle complex cases involving major terrorist figures. As the Trump Administration weighs how it will approach terrorism trials, these cases speak volumes.
