The Obama administration’s expected decision to try suspected al Qaeda operative Nazih Abdul-Hamed al-Ruqai in federal court in New York City as opposed to a military tribunal has relaunched a heated debate over the prosecution of suspected terrorists.
Ruqai, known by his alias as Abu Anas al-Libi, is currently being interrogated on a Navy ship in the Mediterranean. Though administration officials say no decision has been made on the type of court they will provide Libi, anonymous officials have told several media outlets that he will be sent to New York for criminal prosecution. Responding to those articles, a string of hawkish Republicans have come out against the idea of treating Libi as anything but an enemy combatant — with some calling for his immediate detention in Guantanamo Bay, Cuba.
"I believe the most responsible course of action would be to hold him as an enemy combatant at Guantanamo Bay for intelligence gathering purposes," said Republican Senator Lindsey Graham in a statement. "U.S. Navy ships were never intended to be confinement and interrogation facilities in the War on the Terror. The use of ships, instead of Guantanamo Bay, will greatly compromise our ability to gather intelligence from captured terrorists."
In a separate statement, New Hampshire Sen. Kelly Ayotte echoed her opposition to treating Libi as a criminal. "As an al Qaeda leader who is suspected of involvement in deadly terrorist attacks against American embassies in Africa, al-Libi should be treated as an enemy combatant, detained in military custody, and interrogated to gather information that will prevent future attacks and help locate other al Qaeda terrorists," she told The Cable in a statement.
Republican Mike Rogers, chairman of the House Intelligence Committee, said he was "profoundly concerned" that prosecuting al-Libi in a civilian court would prevent authorities from obtaining "the intelligence we need from him to help prevent future attacks and to break up terrorist networks." He added: "Enemy combatants should be tried in a military commission."
Other members of Congress urged the administration to disregard GOP calls for a military tribunal. "I support a civilian prosecution and hope that the Administration will resist any call to bring al-Libi before a military commission," said Democratic Congressman. Adam Schiff, in a statement. "The Justice Department has demonstrated a far greater ability to successfully prosecute terrorists in federal courts than the military commissions have thus far been able to show."
Congressional efforts to derail civilian trials for terror suspects have had some success in the past, particularly in the case of 9/11 mastermind Khalid Sheikh Mohammad. In 2009, after Attorney General Eric Holder announced that Mohammad would be tried in New York, a wave of Congressional scrutiny and public consternation led him to reverse course and opt for a military commission.
On Monday, White House spokesperson Caitlin Hayden ruled out Guantanamo as an option of Libi. "The Administration is seeking to close Guantanamo, not add to its population," she said. She added that the ultimate decision on how to try Libi is with the Justice Department and the Pentagon.
In response to complaints by the Libyan government that the seizure of Libi on the streets of Tripoli amounted to a kidnapping, Secretary of State John Kerry noted Libi’s indictment by a U.S. court. "An indictment is an accusation," Kerry said Monday. "In our legal system the defendant is presumed innocent until proven guilty, but he will now have an opportunity to defend himself and to be appropriately brought to justice in a court of law."
Libi, in particular, is believed to have a windfall of intelligence for officials due to his expansive knowledge of al Qaeda from the early days with Osama bin Laden in Sudan to its current state of decentralized affiliates. A suspect in the deadly bombings of U.S. embassies in Kenya and Tanzania, Libi has been on the FBI’s Most Wanted List for almost two decades. "Al-Libi is likely to be a treasure trove of valuable intelligence information," said Graham.
Interestingly, GOP hawks are not as unified as they were back in 2009 in offering a legal solution for the administration.
Graham, for instance, is open to a civilian trial after Libi is interrogated in Gitmo. "We can hold Libi as an enemy combatant, interrogate, gather intelligence, and then turn him over for trial in federal district court," he said.
Rogers, meanwhile, is not advocating that Libi be detained in Guantanamo like he did with Osama bin Laden’s son-in-law with Sulaiman Abu Ghaith last year.
Publicly, the White House is leaving the door open to prosecuting Libi in a military commission while defending the administration’s success-rate of prosecuting terrorists in federal courts.
"Article III courts have a long track record of success, proving that federal prosecutions can often be the most effective mechanism for gathering useful intelligence, neutralizing a threat, and keeping a dangerous individual behind bars," Hayden said. "We also fully support the use of the military commissions system in appropriate cases."