Fordham Law


Osama Bin Laden's Son-In-Law Turns War On Terror Into War On Confusion

Thane Rosenbaum in Forbes, March 15, 2013

Media Source

Written by: Thane Rosenbaum

The War on Terror, a phrase that President Obama has not favored, now looks more like an internal war of confusion when it comes to America’s handling and prosecution of suspected terrorists.

Osama bin Laden’s son-in-law, Sulaiman Abu Ghaith, was recently arrested in Jordan and arraigned in Manhattan federal court where he was charged with conspiracy to kill Americans. Prosecutors do not believe that he served in an operational capacity with al Qaeda, nor did he participate in the 9/11 attacks. Yet, as a promoter of violence against Americans and as a propagandist for Bin Laden, he will become the highest-ranking Qaeda figure to face a civilian trial.

His mere presence in an America courtroom, however, places him in rarefied company. When it comes to al Qaeda operatives more recently discovered in Pakistan or Yemen, President Obama has not hesitated to dispense with civilian trials and has instead ordered assassinations—timely justice of a different sort.

To be sure, unlike Abu Ghaith, his father-in-law received no day in court—in Manhattan or elsewhere. He was assassinated in May 2011 during a helicopter raid in Islamabad. Given the scant security that existed at his compound, Bin Laden could have been abducted and taken back to America to stand trial. Yet few complained that the President, a former constitutional law professor, decided to treat Bin Laden to the accelerated due process of a bullet to the head rather than allow him to argue his case and subject his accusers to cross-examination. Similarly, in September 2011, Muslim cleric Anwar al-Awlaki was killed by a drone strike in Yemen, authorized by the country of his birth and without the filing of any criminal charges.

Of course, Abu Ghaith would not be the first post-9/11 terrorist to find himself in a New York courtroom. Back in May 2012, a Brooklyn jury convicted an American citizen, Adis Medunjanin, of conspiracy to stage suicide attacks in New York subways. He was sentenced to life in prison. In November 2010, Ahmed Khalfan Ghailani, the only former Guantanamo Bay detainee to have received a civilian trial, was acquitted on 281 charges related to the 1998 bombing of U.S. embassies in Kenya and Tanzania, which killed 224 people, including a dozen Americans. He was convicted of only one count of conspiracy to destroy government buildings and was sentenced to life in prison.

Meanwhile, Khalid Shaikh Mohammed, the professed mastermind of 9/11, continues to languish in Guantanamo, his military trial finally commencing in May 2012, nearly ten years after he was first captured in Pakistan and then subjected to enhanced interrogation. Now he has become the grizzly poster child for the terrorist who proved to be too hot to receive a civilian trial, too difficult to prosecute in a military commission (the case is still unresolved), too dangerous to release and, because he was captured in the pre-drone age, it was too late for him to be assassinated.

Which leaves us with no consistent policy on how to prosecute and punish terrorists, whether they be American citizens or foreign born? It’s a dizzying game of Three-card Monte, with disparate choices not always consistently applied: military commissions, of which there have been fewer than ten, and thus suspected terrorists are detained indefinitely without any resolution; civilian trials, of which there have been many with a nearly 90 percent conviction rate, but these proceedings are predictable, lack transparency, and the verdicts don’t necessarily match the severity of the crimes; and, of course, targeted assassinations, which guarantee finality and might ultimately achieve just deserts, but provide little in the way of due process or historical justice, since drone strikes yield no truth-seeking or findings of fact.

Abu Ghaith will doubtless be found guilty in Manhattan federal court. The fact that the verdict is predestined makes it, to some degree, resemble the justice given to his father-in-law—sans Navy Seals and the bullet. But like the Ghailani verdict, the trial against Abu Ghaith might prove to be both unsatisfying and legally inconsistent. Why is Ghailani spending the rest of his life in prison if he was acquitted of 281 counts of mass murder and was convicted only of conspiracy to blow up buildings? Due to constitutional objections, the jury never heard the evidence that emanated from the harsh interrogation techniques to which he was admittedly exposed. The prosecution contended that this evidence amounted to a confession.

Indeed, so much of the evidence in these civilian trials is classified, which undermines their purported transparency. If Ghailani was, in fact, guilty of far more than what the jury had found, then the lesser punishment he received—albeit arising from a civilian trial—isn’t necessarily just. Yes, civilian trials may yield more actual convictions, but neither truth nor justice is assured. And if these civilian trials are not transparent, their outcomes are predetermined, and their verdicts are often lacking in both legal consistency and common sense, are they really then that much different from military commissions?

If we’re still fighting a war on terror, then enemy combatants are subject to indefinite detention until the end of hostilities, and they are not entitled to the full panoply of constitutional protections. The murder of U.S. Ambassador Christopher Stevens in Libya on September 11, 2012 was surely no indication that al Qaeda’s jihadist fantasies have abated and the war is over. Enemies of America, as opposed to our common criminals, seek not merely to break our laws but to destroy our society. And that’s why the justice they receive ought to look different from the garden-variety civilian trial.