The Trial of Bin Laden’s Son-in-Law and Why Not to Torture a Terrorist

This blog is a cross-post from Huffington Post.

Sniping between lawmakers and the CIA over a report on the U.S. torture of terror suspects reached a fever pitch this week, as Senator Dianne Feinstein accused the CIA of spying on her intelligence committee as it was investigating the agency’s activities. But even as the infamous Senate torture report remains classified, a story unfolded in a U.S. federal court this week that provides a powerful example of why the Bush administration’s torture tactics were such a bad idea.

For the last two weeks, Suleiman Abu Ghaith, a Kuwaiti imam and alleged “spokesman” for al Qaeda, has been on trial in a New York courtroom. A son-in-law of Osama bin Laden, Abu Ghaith is allegedly the most senior leader of al Qaeda ever to face charges in the United States. When he was arrested last year, administration critics such as Senator Mitch McConnell complained Abu Ghaith was “an enemy combatant and should be held in military custody,” where he could have been “fulsomely and continuously interrogated without having to overcome the objections of his civilian lawyers.”

This week, we heard testimony that demonstrates exactly why the Obama administration was absolutely right not to do that.

On Thursday, FBI Special Agent Michael Butsch told a federal jury how he treated Abu Ghaith “with respect” and “advised him of his Miranda rights” — his right to remain silent, to speak to an attorney, and to have an attorney present at the interview. Abu Ghaith, Butsch recounted, then immediately “indicated he waived those rights and did not need an attorney to speak with us.” Abu Ghaith went on to speak to Butsch and his FBI colleagues for hours while on a plane from Jordan, where he was apprehended, to the United States. In the process, Abu Ghaith admitted his connections to bin Laden and al Qaeda and explained the work he did for them, both before and after the 9/11 attacks.

To an American observer, that may sound astonishing. Why would he just confess? In fact, that happens all the time in these cases. The key, it seems, is in according the captive respect — conveying an acknowledgement of his humanity and his right to humane treatment.

“I treated Mr. Suleiman Abu Ghaith like a gentleman,” Butsch told the court in downtown Manhattan on Thursday, explaining he referred to the defendant as “Sheikh” as he questioned him, to acknowledge his status as a Muslim religious figure. Butsch also told his captive he could take breaks to use the bathroom, drink some water or pray, anytime he wanted. Abu Ghaith took him up on the offer, and the Arabic translator would help him wash his hands and feet for prayer. As a result, Butsch said, “it was a respectful, relaxed conversation.” Each time after a break, Butsch said, Abu Ghaith repeated that he was happy to continue talking.

Indeed, he seemed eager to talk. “He said, ‘you will hear things of al Qaeda that you never imagined,'” Butsch testified. Abu Ghaith proceeded to explain that he left Kuwait and traveled to Afghanistan in 2001 to learn about the Taliban and jihadi movements. Shortly after arriving in Afghanistan he met bin Laden, who took a liking to him. Abu Ghaith said that at bin Laden’s request, he preached to recruits at al Qaeda training camps, and eventually moved his family with him to Afghanistan, Butsch testified. Although he said he did not pledge “bayat” — an oath of loyalty — to bin Laden, he agreed to work as a “religious scholar and orator” for him and for al Qaeda.

The FBI agent’s testimony was damning. Prosecutors had already repeatedly shown photos and videos of Abu Ghaith sitting next to bin Laden and giving speeches for public broadcast praising the 9/11 attacks and warning of more to come. This was the first testimony, however, demonstrating that he gave those speeches for al Qaeda voluntarily. Butsch testified that Abu Ghaith told him bin Laden gave him a list of points he should make in the speech, but made clear that he agreed to make those speeches and act as an orator for al Qaeda. That’s critical to the charges against him — material support for terrorism and conspiracy to kill Americans.

The trial is continuing in the Manhattan federal courthouse, just blocks from where the 9/11 attacks occurred. While much of the testimony about al Qaeda inside has been disturbing, the existence of the trial has caused barely a ripple outside on the streets of New York. Although we’ve seen additional police officers and news cameras outside and an extra level of courtroom security in the already heavily-fortified building, we haven’t seen any of the sort of chaos or commotion that Obama critics have long predicted would accompany trying an “enemy combatant” in a U.S. court.

In comparison to the military commission cases proceeding at a snail’s pace at Guantanamo, this trial has been orderly and efficient. Judge Lewis Kaplan, a senior judge with decades of experience handling complex criminal cases, is a tough taskmaster: he’s making sure the lawyers present their case efficiently and according to the clearly established federal court rules. Started just a year after the defendant’s arrest, the trial is expected to wrap up by the end of this month. By contrast, the military commission judge, Col. James Pohl, is still holding pre-trial hearings for the trial of the five alleged masterminds of the 9/11 attacks, though they’ve all been in U.S. custody for about a decade. The glacial pace of those proceedings is due in part to the lack of clear rules and precedent governing the military commissions, first created in 2001, and the fact that Guantanamo Bay was never intended as a pre-trial detention center, but as an offshore interrogation facility. Exactly how those detainees were interrogated and the conditions of their confinement have created enormous complications in bringing them to justice. It doesn’t help that Judge Pohl has no experience trying complex international criminal conspiracies and seems baffled as to even which laws apply in his courtroom. We still don’t know if the U.S. Constitution applies.

This week, in one small bit of good news on the counterterrorism front, an Algerian prisoner at Guantanamo Bay, Ahmed Bin Saleh Bel Bacha, was repatriated to his home country. That leaves 154 more men still imprisoned at Guantanamo. Thirty of them, including two remaining Algerians, were recommended for prosecution by an interagency task force President Obama created to evaluate the remaining detainees in 2009. If the administration wants to make any progress on bringing terrorists to justice and on finally closing the Guantanamo Bay detention center, it should be sure not to bring any more prosecutions in Cuba.


Published on March 16, 2014


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