Under the U.S. Supreme Court: Gitmo or the U.S. courts for terror suspects?

MICHAEL KIRKLAND, Senior UPI Legal Affairs Correspondent

WASHINGTON, March 17 (UPI) -- Republicans ripped the Obama administration when earlier this month it brought the son-in-law of Osama bin Laden to New York for trial instead of to Guantanamo and a military commission.

The theory is that trial by a military commission at the detention center in Guantanamo Bay, Cuba, gives a defendant fewer rights and subjects him to more rigorous interrogation, and a military commission will admit evidence even if it was obtained by questionable methods.


In contrast, in a civilian federal court in the United States, a terror suspect retains all of the civil rights of any defendant.

Sulaiman Abu Ghaith, one of bin Laden's many sons-in-law, pleaded not guilty in a Manhattan federal courtroom March 8 to plotting to kill Americans.

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Abu Ghaith is married to Fatima bin Laden and is an al-Qaida propagandist. Following the Sept. 11, 2001, terror attacks, Abu Ghaith appeared in online videos praising the attacks and warning of more. After the attacks, Abu Ghaith lived under house arrest in Iran with the at least tacit approval of the Iranian regime.


He left Iran for Turkey where he was detained last month, taken to Jordan and transferred to U.S. custody Feb. 28.

"Sulaiman Abu Ghaith held a key position in al-Qaida, comparable to the consigliere in a mob family or propaganda minister in a totalitarian regime," said FBI Assistant Director George Venizelos, in charge of the bureau's New York Field Office. "He used his position to persuade others to swear loyalty to al-Qaida's murderous cause. He used his position to threaten the United States and incite its enemies. His apprehension is another important step in the campaign to limit the reach of al-Qaida and enhance our national and international security."

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An indictment against Abu Ghaith was unsealed in Manhattan March 7. The indictment charges Abu Ghaith with participating in a conspiracy to kill U.S. nationals. If convicted, Abu Ghaith faces possible life in prison.

U.S. Sen. John Cornyn, R-Texas, was among the Republicans critical of Abu Ghaith's detention in the United States, The New York Times reported.

"Rather than issuing doomsday predictions about sequestration, the president should be notifying Congress that he's planning a U.S. civilian court trial for a terrorist who took credit for 9/11 and is on video threatening to blow up more U.S. buildings and planes," Cornyn said. "Gitmo is still up and running. And as long as it is, it's the only place where we should be detaining America's most dangerous enemy combatants, period."

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Senate Minority Leader Mitch McConnell, R-Ky., said the decision to try Abu Ghaith in Manhattan shows "a stubborn refusal" to hold additional terrorists at the Guantanamo Bay facility and could hinder intelligence collection, The Washington Times reported.

McConnell said Abu Ghaith has "valuable knowledge of al-Qaida's activities within Iran."

Sen. Kelly Ayotte, R-N.H., said bringing Abu Ghaith to New York entitled him to the same rights as a U.S. citizen, including a speedy trial and Miranda rights, Politico reported.

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"We don't want him to come to America before he has been fully interrogated -- before he comes to America and hears the words, 'You have the right to remain silent.' ... This man should be in Guantanamo Bay," Ayotte said.

Sen. Lindsey Graham, R-S.C., was equally critical.

"We believe the administration's decision here to bring this person to New York City, if that's what's happened, without letting Congress know is a very bad precedent to set," the Christian Science Monitor reported. "We're putting the administration on notice. We think that sneaking this guy into the country, clearly going around the intent of Congress when it comes to enemy combatants, will be challenged."

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The White House pushed back.

Asked why Abu Ghaith was being tried in a civilian court, principal deputy press secretary Josh Earnest said: "The simple answer ... is that there is broad consensus across the United States government. At the Department of Defense, the Department of Justice, the Department of Homeland Security, the intelligence community agrees that the best way to protect our national security interests is to prosecute Abu Ghaith in an Article 3 court."

Federal courts are established in Article 3 of the Constitution.

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"There is a pretty strong track record of the success of Article 3 courts in handling these kinds of trials," Earnest told reporters March 8. "Faisal Shahzad, the Times Square bomber, was tried in an Article 3 court. He's currently serving a life sentence. [Umar] Abdulmutallab, also known as the 'underwear bomber' faces a similar fate.

"Article 3 courts have shown that they are, in many ways, a more efficient way for us to deliver justice to those who seek to harm the United States of America," Earnest argued. "And that is the consensus view of the president's national security team and of agencies all across the federal government that this is the best way to handle bringing Abu Ghaith to justice."


The spokesman said the administration disagreed with McConnell that trying Abu Ghaith in a civilian court would impede intelligence gathering.

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"With all due respect to Senator McConnell, that's not the assessment of the intelligence community," Earnest said. "It's not the assessment of the Department of Justice. It's not the assessment of the Department of Defense. So he's certainly welcome to his opinion, but that's not the assessment of the people who are responsible for protecting the national security of the United States of America."

Sen. Patrick Leahy, D-Vt., also backed the administration's decision, saying U.S. prosecutors have had "tremendous success" in convicting al-Qaida terrorists.

"In contrast, it is not clear whether a conspiracy case against Abu Ghaith could even be sustained in a military commission at Guantanamo Bay," The Washington Times quoted Leahy as saying. "Sending another detainee to Guantanamo would have been a serious mistake, and it is clear to me that President Obama and his national security team made the right choice."

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An online evaluation by Peter Bergen, CNN's national security analyst, also approves of the administration's decision.

In 2002, Abu Ghaith said in a video, "Al-Qaida has the right to kill 4 million Americans, including 1 million children, displace double that figure, and injure and cripple hundreds and thousands." But Bergen said the former high school teacher was never an operational leader.


Berger points out the New America Foundation "maintains a database of all the jihadist terrorism cases in the U.S. since 9/11. Of the 39 cases in New York state since 9/11, 20 defendants pleaded guilty and 15 were convicted while four await trial."

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In contrast, the military commission system in Guantanamo "is largely untested," Berger said. "The operational commander of 9/11, Khalid Sheik Mohammed, was arrested in Pakistan a decade ago but still has yet to face trial in Guantanamo. It's quite possible that the process may take many more years before his trial even begins.

"Indeed, of the 779 prisoners who have been held at Guantanamo," he said, "only six have been convicted according to a recently released study by the Congressional Research Service, which performs research on behalf of members of Congress."

The Congressional Research Service report, released Feb. 28, compares trial in the civilian courts to trial before a military commission in Guantanamo.

"Some who oppose the use of federal criminal courts argue that bringing detainees to the United States for trial poses a security threat and risks disclosing classified information, or could result in the acquittal of persons who are guilty," the report said. "Others have praised the efficacy and fairness of the federal court system and have argued that it is suitable for trying terrorist suspects and wartime detainees, and have also voiced confidence in the courts' ability to protect national security while achieving justice that will be perceived as such among U.S. allies abroad.


"Some continue to object to the trials of detainees by military commission, despite the amendments Congress enacted as part of the Military Commissions Act of 2009 [MCA] ... because they say it demonstrates a less than full commitment to justice or that it casts doubt on the strength of the government's case against those detainees. Others question the continued viability of military commissions in light of the recent appellate court decision invalidating the offense of material support of terrorism as to conduct occurring prior to the [superseded] 2006 enactment of the MCA."

The report added: "One issue that has been raised by proponents of the use of military commissions is the concern that federal criminal courts would endow accused terrorists with constitutional rights they would not otherwise enjoy. The MCA does not restrict military commissions from exercising jurisdiction within the United States, and the Supreme Court has previously upheld the use of military commissions against 'enemy belligerents' tried in the United States under procedural rules that differed from the federal rules [of criminal procedure].

"The Supreme Court has not settled the question regarding the extent to which constitutional guarantees apply to aliens detained at Guantanamo, making any difference in rights due to location of the trials difficult to predict," the report said. "Some view the unpredictability of the Supreme Court's acceptance of the military commission procedures as a factor in favor of using civilian trial courts."


The report adds later, "The Supreme Court has ruled al-Qaida fighters are entitled at least to the baseline protections applicable under Common Article 3 of the Geneva Conventions, which includes protection from the 'passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. ... Evidence derived from impermissible interrogation methods is not barred."

The main fly in the Guantanamo ointment, of course, is 2008's Boumediene vs. Bush, when a 5-4 U.S. Supreme Court majority ruled Guantanamo detainees, even though they are not on U.S. soil, have the right to habeas -- constitutional -- review in the federal courts in the United States.

The "suspension clause" in Article 1 of the Constitution says, "The privileges of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it."

The Boumediene majority said Guantanamo detainees "have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the suspension clause's protections because they have been designated as enemy combatants or because of their presence at Guantanamo."


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