Federal Courts v. Military Commissions: The Debate Isn’t Over

After last week’s conviction of Bin Laden’s son-in-law Sulaiman Abu Ghaith in Federal Court, Attorney General Eric Holder issued a statement praising the trial as a demonstration that Federal Court is the proper venue for high-profile terrorism cases. As I cited in a post earlier this week, Holder said of the trial:

“We never doubted the ability of our Article III court system to administer justice swiftly in this case, as it has in hundreds of other cases involving terrorism defendants. It would be a good thing for the country if this case has the result of putting that political debate to rest. This outcome vindicates the government’s approach to securing convictions against not only this particular defendant, but also other senior leaders of al Qaeda.” Continue reading

Abu Ghaith Trial Postponed Due to the Sequester

It seems as though the already controversial Federal trial of Usama Bin Laden’s son-in-law, Sulaiman Abu Ghaith, may be in jeopardy- at least temporarily.

Abu Ghaith’s trial began on March 8 when he pled not guilty to conspiracy charges based on intelligence pointing to possible connections with Al-Qaida and the 9/11 attacks.  Prior to Monday, Abu Ghaith’s trial was scheduled to begin as early as September.  However, the recent sequester that has slashed federal government spending will now push proceedings back as far as 2014.

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Abu Ghaith’s public defenders argued that blanket budget cuts of 5.1 per cent would not allow them to adequately defend their client, especially given the gravity of the charges against him.  In addition, the budget cuts will force the defense team to take at least a five-week unpaid furlough this fall.  The prosecutors also requested a postponement, agreeing with the defense that the sequester will place a heavy burden on both sides during trial preparation.  Judge Lewis Kaplain called the delay “troublesome,” noting that it was difficult to contemplate that such a high-profile case would be delayed due to budget difficulties.  Still, he agreed and set the trial date for January 7, 2014.

In addition to pushing the trial back, the defense also moved to strike a 22-page statement made by Abu Ghaith shortly after he was turned over to U.S. forces in Jordan.  They also said they will seek a venue change, partly due to the close proximity to the Manhattan federal courthouse to the former site of the World Trade Center, which they believe may have an effect on the jury’s verdict.

Chris Whitten, Research Fellow
Center for Policy and Research

Ramifications of Federal Court Trials vs. Military Commission

 

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

Sulaiman Abu Ghaith Prosecution Begins in NYC

This morning Sulaiman Abu Ghaith, a son-in-law of Usama Bin Laden, pleaded not guilty to the charge of conspiracy to kill Americans. Interestingly, this took place not in a military commission at Guantanamo Bay, but in federal court in lower Manhattan, just a few blocks from the site of the 9/11 attacks.

While Abu Ghaith’s connection to the 9/11 attacks is disputed, he is charged with publicly praising the 9/11 attacks and supporting al Qaeda/UBL for nearly 15 years. Numerous sources cite him as being the most senior al Qaeda member to be tried in the United States.

Not surprisingly, the decision to hold his trial in federal court has drawn significant criticism from the press, politicians, and the public- and it was just announced yesterday. NYC Mayor Michael Bloomberg is quoted as saying “Would I prefer to have it [the prosecution of Abu Ghaith] elsewhere? I’m not going to get involved in that because I don’t want to make the president’s job any more difficult.” Other political leaders were not so diplomatic, Republican Senators Lindsey Graham and Kelly Ayotte described the Obama administration’s decision to prosecute Abu Ghaith in federal court as “sneaky” and contradictory to the will of Congress.

Today was just a simple 20-minute arraignment, but given the press and publicity Abu Ghaith has received thus far, his prosecution seems like it will be a lengthy and contentious process.

Kelly Ann Taddonio, Research Fellow
Center for Policy and Research