Gavel Grab

The capture of Sulaiman Abu Ghaith, a son-in-law of Osama Bin Laden, has rekindled debate over prosecuting terror suspects in civilian courts versus military tribunals.

On Friday, Mr. Abu Gaith pleaded not guilty in a federal court in lower Manhattan to charges of plotting terror against Americans, the Associated Press reported. U.S. authorities said he was a spokesman for al-Qaida.

The Wall Street Journal reported that some Republicans think Mr. Abu Ghaith belongs before a military tribunal at Guanatamo. ”Al Qaeda leaders captured on the battlefield should not be brought to the United States to stand trial,” said Rep. Mike Rogers, chairman of the House Intelligence Committee. “We should treat enemy combatants like the enemy.”

Sen. Kelly Ayotte, R-N.H., said that the terror suspect would become entitled to the rights of a U.S. citizen — including a speedy trial — by being in New York, Politico reported. 

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Five accused 9/11 terrorists including admitted architect Khalid Shaikh Mohammed are facing charges before a military commission system that is improved, but that “simply doesn’t afford the defendants the gold standard of American justice,” a Los Angeles Times editorial said.

The editorial was entitled “Justice and the 9/11 defendants: A military tribunal is not the best way to demonstrate America’s commitment to the rule of law.”

The revised military commission system, improved over that established by the George W. Bush administration, remain less protective of defendants than does a civilian trial, the editorial said. In addition, the commission system falls under the aegis of the same military that locked up the defendants and held them for almost a decade.

“[B]oth substantively and symbolically, it is an unacceptable alternative to a civilian trial of the kind that has successfully convicted other terrorists,” the editorial added. It placed blame on both Congress for blocking earlier plans for a civilian trial and the Obama administration for important errors in handling the matter.

Earlier this month, the defendants were arraigned at a proceeding before the military commission at Guantanamo Bay, Cuba (see Gavel Grab).

Since the terrorist attacks of 2001, the USA PATRIOT Act and other policies have weakened the historic power of courts to protect our rights and check possible government abuses, Justice at Stake says on its web site. To learn more, see Justice at Stake’s “Courting Danger” report.

The American Civil Liberties Union has formally asked that the American public be allowed to hear testimony from five accused 9/11 codefendants about their experiences at the hands of CIA captors in secret prisons overseas. The defendants, including Khalid Shaikh Mohammed, are to be arraigned Saturday at Guantanamo Bay.

Under the system to be used by the tribunal, a 40-second delay is employed. That is time enough, according to a Miami Herald article, for an intelligence official to punch a white noise button if any of the defendants describe what CIA agents did to them between their capture in Pakistan and their arrival at Guantanamo, several years later. Spectators view the courtroom proceedings from a soundproofed, glassed-in booth.

The challenged practice amounts to censorship, the ACLU contended, saying it was premised on  “a chillingly Orwellian claim” that the accused “must be gagged lest he reveal his knowledge of what the government did to him.”

Five accused 9/11 terrorists including admitted architect Khalid Shaikh Mohammed will be arraigned Saturday at the Guantanamo Bay Naval Base in what some have called the “prosecutions of the century.” The proceedings are renewing debate over the removal of the case to a military tribunal from a federal courtroom.

A Reuters article previewing the upcoming proceedings noted that “the tribunals have been criticized as a second-class system, rigged to convict, since they were first authorized in 2001.”

Charges lodged against five codefendants  were dropped in 2009 when the Obama administration planned to close the military detention facility in Cuba, eliminate the military commission process for trying terror suspects and prosecute the five in civilian courts in New York. Under a backlash of bipartisan opposition, however, that plan was withdrawn (see Gavel Grab). The charges were refiled last June.

A lengthy and ardent criticism of the upcoming military tribunal proceeding in Salon this week was written by Morris Davis, a retired U.S. Air Force colonel who was chief prosecutor for the military commission at Guantanamo Bay from 2005-2007.

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In Brooklyn, a trial is unfolding in federal court for a man accused of plotting to blow up New York City’s subway system in 2009. The trial hasn’t gotten much attention, one scholar said on NPR, considering it has been “an occasion for a convention of terrorism suspects.”

Andrew Rosenthal, editorial page editor for the New York Times, points to the trial for another reason in the newspaper’s Loyal Opposition blog.

He suggests it shows faulty thinking by those politicians who effectively blocked a trial in civilian court of Khalid Shaikh Mohammed, the accused mastermind of the Sept. 11, 2001 terror attacks, and four co-defendants. Next month, the five will be tried before a military commission at Guantanamo. Rosenthal assails the politicians who opposed a New York City trial:

“There is no good reason to believe that the criminal justice system can handle an alleged terrorist who plotted to destroy the subway, but not an alleged terrorist who plotted to destroy the World Trade System. No good reason. The obvious bad reason is politics. Opposing the Mohammed trial was a publicity bonanza for tough-on-terrorism Republicans and a bipartisan group of cowardly members of the New York Congressional delegation.”

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A New York Times editorial decries the steps leading up to a planned trial of the accused 9/11 terrorists before a military tribunal as “The Road We Need Not Have Traveled.”

Last week, a senior Pentagon official authorized the trial for Khalid Shaikh Mohammed, the accused mastermind of the terror attacks, and four co-defendants. It likely will be held at Guantánamo Bay (see Gavel Grab).

The editorial labels the military tribunal as “constitutionally flawed” but devotes more attention to what it considers the mistakes of the George W. Bush and Obama administrations, as well as Congress passing a law “prohibiting the use of federal money to try any Guantánamo prisoner in federal court.” The editorial concludes with a references to a speech delivered last week by Brig. Gen. Mark Martins, the chief military prosecutor:

“We hope General Martins’s commitment to justice will persuade a highly skeptical world to accept the legitimacy of these trials; convicting and executing the prisoners after a tainted trial would be a disaster. But after all that has happened, even the best-managed trial will not be able to change the fact that this country has in the last decade accepted too many damaging and unnecessary changes to its fundamental principles of justice and human rights.”

Since the terrorist attacks of 2001, the USA PATRIOT Act and other policies have weakened the historic power of courts to protect our rights and check possible government abuses, Justice at Stake says on its web site. To learn more, see Justice at Stake’s “Courting Danger” report.

Khalid Shaikh Mohammed, the accused mastermind of the Sept. 11, 2001 terror attacks, and four co-defendants will face murder and terrorism charges at a new trial before a military commission, likely to be held at Guantanamo Bay.

The trial was authorized by a senior Pentagon official on Wednesday, according to a Washington Post article.

Charges lodged against them earlier were dropped in 2009 when the Obama administration planned to close the military detention facility in Cuba, eliminate the military commission process for trying terror suspects and prosecute the five in civilian courts in New York. Under a backlash of bipartisan opposition, however, that plan was withdrawn (see Gavel Grab). The charges were refiled last June.

There has been a protracted, and heated, debate over trying the five men in civilian courts versus military tribunals.

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President Obama abandoned a veto threat of a massive defense bill that was nearing final passage in Congress Thursday, after the measure was revised by House and Senate negotiators. Critics still protested certain provisions that they said could imperil U.S. citizens’ rights.

“The two popularly-elected branches of government this week have collaborated on a new law that likely infringes upon the core constitutional rights of U.S. citizens — the right to due process as determined by a federal civilian court judge,” wrote analyst Andrew Cohen in The Atlantic. “And it will now be up to our independent judiciary to determine whether this effort is legal or not.”

According to an Associated Press article about the legislation, it “would require that the military take custody of a suspect deemed to be a member of al-Qaida or its affiliates who is involved in plotting or committing attacks on the United States. There is an exemption for U.S. citizens … The bill also says the president can waive the provision based on national security.”

The Senate had passed a version of the bill that would deny a right to trial and subject to indefinite detention suspected terrorists, even U.S. citizens, who are seized in this country (see Gavel Grab). According to a New York Times blog post by Andrew Rosenthal, “The bill [nearing passage] no longer explicitly bans the use of civilian courts to prosecute Qaeda suspects, but it does authorize indefinite detention—not just for suspected members of Al Qaeda but also its allies.”

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Sen. Rand Paul of Kentucky, a tea party-favored Republican, is warning against provisions passed by the Senate that would permit indefinite imprisonment of American citizens without trial if they’re suspected of terrorism crimes.

“Detaining citizens without a court trial is un-American,” Paul writes in a Washington Times commentary, entitled “War on terror doesn’t justify retreat on rights.”

The Senate passed Thursday a $662 billion defense bill that would allow the military to hold terror suspects tied to Al Qaeda or its affiliates, even if they were captured in the U.S., and detain them indefinitely, according to an Associated Press article. It would deny a right to trial and subject to indefinite detention suspected terrorists, even U.S. citizens, who are seized in this country. Paul is sharply critical of the provision:

“There is one thing and one thing only protecting innocent Americans from being detained at will by the hands of a too-powerful state: our Constitution and the checks it puts on government power. Should we err and remove some of the most important checks on state power in the name of fighting terrorism, well, then the terrorists will have won. Detaining citizens without a court trial is un-American.”

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The Senate voted to give the military a greater role in imprisoning suspected members of Al Qaeda and its allies, according to a New York Times article. A waiver in the same bill would leave open an option to use civilian courts, as opposed to military tribunals, for prosecuting some terrorism cases.

The bill’s most contentious provision would require military custody for suspects arrested both outside and inside the United States. American citizens would be exempted, yet Sen. Mark Udall, D-Colo., warned that the measure could deny U.S. citizens their due process rights. His effort to strip the detainee provisions from the overall defense bill was defeated.

President Obama’s administration has opposed the bill’s mandatory military custody provision, and the legislation was still under debate Thursday. Another provision would create a federal law stating the government has legal authority to keep terrorism suspects in military custody, indefinitely and without trial. The provision included no exception for a U.S. citizen.

Since the terrorist attacks of 2001, the USA PATRIOT Act and other policies have weakened the historic power of courts to protect our rights and check possible government abuses, Justice at Stake has stated on its web site. To learn more, see Justice at Stake’s “Courting Danger” report.