Bin Laden son-in-law's trial in New York reignites Guantánamo debate

Sulaiman Abu Ghaith, a son-in-law of Osama bin Laden, is charged with conspiring to kill US nationals and will be tried in a civilian court in New York. Some say he should be sent to Gitmo.

Sulaiman Abu Ghaith, a son-in-law of Osama bin Laden, pleaded not guilty to charges of conspiring to kill US citizens in an arraignment in a New York federal courtroom Friday morning, an appearance that has revived controversy over whether terror suspects should be tried in civilian or military courts.

According to the Department of Justice, Mr. Abu Ghaith was the spokesman for Al Qaeda and a top propagandist in the terror network who appeared in two videos, one alongside Mr. bin Laden, lauding the 9/11 attacks and promising there would be more. As such, his appearance Friday in federal court makes him one of the highest-ranking Al Qaeda officials to face civilian trial on US soil.

In an indictment released Thursday, Abu Ghaith was charged with one count of conspiring to kill US nationals. If convicted, he faces life in prison. 

“Among other things, Abu Ghaith urged others to swear allegiance to bin Laden, spoke on behalf of and in support of al Qaeda's mission, and warned that attacks similar to those of September 11, 2001 would continue,” according to the indictment.

Abu Ghaith’s capture – he was taken into custody in Turkey and deported to Jordan, where he was captured this past week by Jordanian and US officials and brought to the United States – marks a major coup for counterterrorism officials.

“No amount of distance or time will weaken our resolve to bring America's enemies to justice,” Attorney General Eric Holder said Thursday. “This arrest sends an unmistakable message: There is no corner of the world where you can escape from justice because we will do everything in our power to hold you accountable to the fullest extent of the law.”

“The significance of this capture is that he was an individual who is alleged to have engaged in pretty significant organizational affiliation with Al Qaeda and Osama bin Laden … and maybe some plots as well,” says Raha Wala, advocacy counsel in the Law and Security Program at Human Rights First, a nonprofit organization. “Somebody who was captured overseas in Jordan in an area in which we have some law enforcement officials present.… That’s a big deal.”

It also marks a major success for the Obama administration, which has fought a legal and public relations battle to charge foreign terror suspects in American federal courts rather than military tribunals. Abu Ghaith is one of the first top Al Qaeda officials to go on trial on US soil.

“The first thing Obama did when he was sworn into office was sign an executive order to close Guantánamo Bay,” says Brian Carso, director of the program in government law and national security at Misericordia University in Dallas, Pa. “This is an effort to get away from that kind of detention.”

But the decision to arraign Abu Ghaith in downtown Manhattan, blocks from the site of the World Trade Center, has angered some lawmakers, like Sens. Lindsey Graham (R) of South Carolina and Kelly Ayotte (R) of New Hampshire, who say the Al Qaeda spokesman should be considered an enemy combatant and tried in a military tribunal at the detention center in Guantánamo Bay, Cuba.

“The trick about giving this gentleman a civilian trial means he gets to lawyer up, we give him certain rights under the Constitution when we bring him to the US and put him in an American court,” says Professor Carso. “The reason we haven’t done this typically with Al Qaeda operatives is because when we capture foreign combatants on enemy soil they don’t have rights under the Constitution. We have a lot more options in terms of interrogation and imprisonment if we don’t put them in an American courtroom.”

Mr. Raha of Human Rights First calls a civilian trial a “practical solution” and says civilian courts have been handling terror cases for three decades.

“Since 9/11 nearly 500 individuals, 67 of whom were captured overseas, have been convicted of international terrorism offenses in civilian court…. It is not unprecedented,” he says.

Carso disagrees.

“I think we’d be better off treating this individual as an enemy combatant and detaining him offshore,” he says. Trying Abu Ghaith in civilian court “has the potential of providing this individual with a forum to promote the Al Qaeda agenda in an open courtroom, there are still are security concerns in New York, and I don’t see the rationale for treating enemy combatants as criminals in a civilian court.”

He adds that in a criminal case there is a high standard of evidence.

“What if he doesn’t get convicted under that standard?” he asks. “It a roll of the dice.”

Raha calls military trial in Guantanamo a “non-option.”

“For the most part, military trials there have not moved forward, and when they have, have been hit with one legal or policy problem or another,” he says. “There have been only seven convictions since 9/11, two of which have been overturned. It’s not surprising to me that security officials trying to make a practical decision would pick a venue that works over one that doesn’t.”

As pretrial proceedings continue, controversy over the decision to try Abu Ghaith in civilian court is likely to mount, potentially overshadowing key evidence that emerges against the Al Qaeda operative.