The decision to try al Qaeda spokesman Sulaiman Abu Ghaith in a New York courtroom has reignited the debate about the disposition of terrorist suspects on American soil. On Thursday, Republican lawmakers — ranging from Sen. Lindsey Graham to Sen. Kelly Ayotte to Rep. Mike Rogers — criticized the president for setting a "very bad precedent" by affording a so-called "enemy combatant" the legal rights of a U.S. citizen.
But the Obama administration’s decision becomes clearer after inspecting the unsealed indictment on Abu Ghaith, who has just pleaded not guilty. Prosecutors apparently cannot link Osama bin Laden’s son-in-law to any war crimes or specific terrorist operations. NPR’s counterterrorism correspondent Dina Temple-Raston explained the rationale on the radio this morning:
On the surface, Abu Ghaith would appear to be a perfect candidate for the military commissions tribunal at Guantanamo Bay. That is where the alleged 9-11 defendants – Khalid Sheikh Mohammed and four other men – are on trial … But from the charges that were unsealed today it may be that the administration decided that the only alternative was federal courts and that’s because they appear to be charging him with this conspiracy charge and this material support charge and those are the kinds of charges that aren’t internationally recognized as war crimes but are very common in federal courts in the United States.
Reiterating that point, Bob Chesney, a law professor who specializes in national security at the University of Texas, writes in a blog post for Lawfare that "it is of course quite uncertain at the moment that the [military] commission system has the capacity to charge conspiracy in this instance." The indictment says Abu Ghaith urged others to swear loyalty to bin Laden, joined top al Qaeda leaders in condemning the United States, and warned of impending attacks. That makes Abu Ghaith a terrible person but not necessarily a war criminal, which is an important distinction for officials weighing the proper jurisdiction.
On a purely logistical level, trying Abu Ghaith in New York will also be much easier than Khalid Sheikh Mohammed’s anticipated trial, New York city officials tell the New York Times. For the KSM case, police commissioner Raymond Kelly planned to transform a part of Lower Manhattan into an "armed camp, blanketed with checkpoints, vehicle searches, rooftop snipers and canine patrols," reports the newspaper. "But should Mr. Abu Ghaith go to trial, officials said, the proceedings would most likely draw far less attention and create far fewer problems."