He is an unlawful enemy combatant, captured on foreign soil while engaged in hostilities against the United States. He belongs in the military justice system and detention facility established by Congress in accordance with the Constitution and the Supreme Court. Yet President Barack Obama has brought Sulaiman Abu Ghaith, son-in-law of Osama bin Laden, to face a civilian trial on U.S. soil in federal court in New York City.
In so doing, President Obama has defied the express will of Congress, which already refused to transfer foreign terror suspects from the Guantánamo Bay prison to the U.S. at the beginning of Obama’s first term. The decision to bring Abu Ghaith to New York is just the latest in a series of executive actions taken by President Obama that contradict the explicit intent of the legislature. It is also an action in pursuit of a policy doomed to fail.
The extreme left has continued to resist the idea of separate military and civilian justice systems in the war on terror (a term the Obama administration long since abandoned). The Obama administration’s embrace of that view led it to propose that Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 plot, be tried in New York City in 2009.
That plan was scrapped, but Obama remained so committed to that radical view that his administration chose to accelerate the targeted killing of terrorists abroad rather than detaining, interrogating, and trying them in the manner established during the George W. Bush administration. Now, emboldened by his re-election, President Obama seeks to use the Abu Ghaith trial to establish a new precedent for future administrations–without regard to the consequences, both for our national security and our system of justice.
President Obama and Attorney General Eric Holder seem to believe that they will set a moral example for the world by showing that our civilian justice system is robust enough to try the most notorious terrorists. It will do precisely the opposite, because there is no possible way Abu Ghaith will receive a fair trial. He will never be presumed innocent and the Obama administration will never free him in the unlikely event that he is acquitted.
The last time the U.S. faced this debate, in the Khalid Sheik Mohammed case, Obama and Holder essentially guaranteed that Mohammed would be found guilty and would not be released. Such proclamations do not demonstrate the virtue of the justice system; they make a mockery of it. Only in the military justice system, where an unlawful enemy combatant can be held while hostilities continue, can the rule of law truly be upheld.
In addition, there are many problems with civilian trials for foreign terror detainees. They cannot be questioned without counsel present and they can use the Fifth Amendment to avoid answering questions. The prosecution must also provide them with access to all of the evidence against them, potentially revealing intelligence secrets and sources. The public nature of a civilian trial can also allow terror suspects to rally their supporters.
Abu Ghaith is due to appear in federal court in New York on Friday. Sens. Lindsey Graham (R-SC) and Kelly Ayotte (R-NH) protested on Thursday that the administration had brought him to the U.S. without notifying Congress. Though a report in the New York Times suggested that Abu Ghaith “has not had an operational role in Al Qaeda for years,” he remained part of the group and had encouraged attacks against the U.S.
Perhaps President Obama had hoped to regain some of the moral high ground he once enjoyed on civil liberties, and which he lost to Sen. Rand Paul (R-KY) this week after the latter staged a dramatic filibuster on the floor of the Senate to protest Holder’s refusal to offer a clear statement that using drones to target non-combatant U.S. citizens on U.S. soil would be unconstitutional. Regardless, his decision will come at a very high cost.
According to reports, Abu Ghaith had spent most of the last several years in Iran. He might have been able to provide information about Iranian links to Al Qaeda. Now, with prosecutors having read Abu Ghaith his Miranda rights, that information may remain secret. President Obama is creating a kangaroo court, compromising national security, and degrading Congress–all to re-open an argument he already lost four years ago.
Update: Abu Ghaith has pleaded not guilty to conspiracy charges in federal court.