Earlier this month, on March 8, Sulaiman Abu Ghaith, Usama Bin Laden’s son-in-law, pleaded not guilty to a charge of conspiracy to kill Americans in a federal courthouse in Manhattan. Although his connections with the infamous 9/11 attacks are disputed, he is charged with publically praising the attacks and providing support to Al Qaeda for roughly 15 years. This will undoubtedly be one of the most high-profile terrorist-related trials to take place since the beginning of the War on Terror given the Abu Ghaith’s alleged ties with Bin Laden, but the circumstances surrounding it have already given rise to harsh criticism from politicians and the general public.
In particular, the main cause for concern is the curious decision to try Abu Ghaith in a federal court rather than a military commission trial at Guantanamo Bay, as is normally the course of action in terrorism-related cases. Lawmakers argue that this decision could have far-reaching implications not only for the Abu Ghaith trial, but for future terrorism-related trials as well.
But what are these implications? For starters, the Abu Ghaith trial begins a new chapter in a fight between President Obama’s administration and Congress. In 2009, President Obama announced that he would transfer five Guantanamo detainees to the United States to face criminal charges in federal court. Opponents of Obama’s plan argued that transferring suspected terrorists to U.S. soil would compromise national security and could lead to wrongful acquittals of guilty parties. Those in favor of the plan countered by pointing out the efficiency and fairness of the American justice system.
Congress ultimately responded by enacting legislation that froze the funds needed to make those transfers happen. The Obama administration has seemingly found a loophole in the Congressional act, which only covers Guantanamo detainees, by bringing suspected terrorists to the United States without first holding them at Guantanamo.
Beyond policy considerations, there are legal implications at the heart of the discussion. In regard to the Abu Ghaith trial, critics argue that Abu Ghaith will be granted rights under the Due Process clause of the Constitution during his trial in federal court that would not exist if he were tried at Guantanamo Bay. For instance, a military commission does not grant the right to a speedy trial that would be applicable in federal court. However, the Supreme Court has yet to voice its opinion on whether these rights would also be applicable in a military court, which leaves some uncertainty as to whether these concerns are legitimate.
The type of evidence allowed also differs between military commissions and federal courts. While both would allow coerced testimony obtained at the point of capture, military commissions typically allow hearsay evidence, which will be barred in federal court. This will be a significant difference, especially because the federal prosecutor will have a higher burden of proof than a military commission would require. However, this burden may not pose problem that critics cite, as federal courts have had a 91% conviction rate in terrorism-related cases since the 9/11 attacks.
Along those same lines, defendants in the federal court system may have greater access to witnesses than in military commissions. In military commissions, the defendant would have no right to subpoena witnesses. Also, although the judge in a military commission has the power to compel witnesses to appear, he does not have to do so depending on the circumstances. During the course of his trial, Abu Ghaith will have a better opportunity to call witnesses in support of his defense. Critics argue that these differences may lead to a wrongful acquittal of a suspected terrorist. However, the extra burden may not pose the problem that critics cite, as federal courts have had a 91% conviction rate in terrorism-related cases since the 9/11 attacks.
The human rights group Human Rights First points out that a trial at federal court will protect defendants from being convicted ex-post facto. In other words, defendants will not be convicted of crimes that were not articulated by the legislature at the time they were allegedly committed. Military commissions allow such convictions, meaning that a defendant may have no prior notice that he is committing a criminal act at the time of his actions.
Finally, the process of selecting the judge and jury are much different in federal court than in a military commission. In a military commission, the U.S. military handpicks the judge and selects the panel (the equivalent of a jury) from the enlisted military. In federal court, judges are appointed for life before hearing any cases and the jury is picked from the general public. Those in favor of federal court trials argue that these procedural steps will lead to a fairer trial for defendants.
As the son-in-law of Usama Bin Laden, Sulaiman Abu Ghaith’s trial will naturally catch the public’s eye. The publicity will only be heightened by the controversy surrounding the Obama administration’s decision to try Abu Ghaith in federal court rather than in a military commission, the type of trial Guantanamo Bay was created specifically for. With so many differences in procedural, evidential, and political matters, it will be interesting to see how the Abu Ghaith trial plays out.
Christopher Whitten, Research Fellow
Center for Policy & Research