Former Military Prosecutor: Try Benghazi Suspect in Federal Court


In a New York Times op-ed, Morris Davis, who served as chief prosecutor for the military commissions at Guantánamo Bay, Cuba, from 2005 to 2007, strongly states that Ahmed Abu Khattala should be tried in civilian court.

Khattala is suspected of leading the 2012 attack on the United States Mission in Benghazi, Libya, and his capture was disclosed this week (see Gavel Grab). Some have criticized the Obama administration’s plans to prosecute him in federal court.

Davis cites the record of controversy following military prosecutions at Guantánamo Bay, compared to “hundreds of terrorism-related cases prosecuted successfully and without adverse incident in federal courts during the same period.” He adds: (more…)

Discord Over Venue for Trying Benghazi Attack Suspect

The U.S. capture of Ahmed Abu Khattala, suspected of leading the 2012 attack on the United States Mission in Benghazi, Libya, sparked renewed debate over the issue of prosecuting terror suspects in civilian or military court.

“The [Obama] administration’s policy is clear on this issue,” said National Security Council spokeswoman Caitlin Hayden, according to the Washington Post. “We have not added a single person to the [Guantanamo] population since President Obama took office, and we have had substantial success delivering swift justice to terrorists throughout our federal court system.” The government plans a federal trial for the suspect in Washington, D.C. (more…)

New Legal Approach Needed on Gitmo Detainees, U.S. Judge Says

Judge Harry T. Edwards of the federal appeals court in Washington, D.C. suggested in an opinion this week that Congress and President Obama find a new legal approach to the cases of detainees held at Guantanamo Bay, Cuba.

Judge Edwards went along with his colleagues in an opinion by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. It rejected a detainee’s challenge to his detention on grounds of legal precedent from the D.C. Circuit Court, according to an Associated Press article. But Judge Edwards went further to say the challenge actually deserved to be granted.

“[W]hen I review a record like the one presented in this case, I am disquieted by our jurisprudence,” Judge Edwards wrote. “The time has come for the president and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases.”

Detainee Abdul al Qader Ahmed Hussain brought the legal challenge.

JAS: President Affirms Constitution's Protections in War and Peace

Justice at Stake said on Thursday it was encouraged by President Obama’s affirmation, in a speech on on national security and counterterrorism policy, that the Constitution’s protections define us as a nation and do not vanish in a time of war.

“For over two centuries, the United States has been bound together by founding documents that defined who we are as Americans, and served as our compass through every type of changes.  Matters of war and peace are no different,” Obama said.

Some highlights of Obama’s remarks as they involve the courts and judicial review are found in an earlier Gavel Grab post. Praveen Fernandes, JAS director of federal affairs and diversity initiatives, responded to these remarks in a statement.

JAS  commended Obama’s commitment to review proposals to extend oversight of lethal actions outside of warzones. “The President acknowledged that the targeting of American citizens raises significant constitutional concerns,” Fernandes said. “Leaders from both parties and all three branches of government need to grapple seriously with what the Constitution demands in terms of due process and other protections.” (more…)

Obama Invites Congress to Consider Lethal Strike Oversight Options

In a key speech on counterterrorism policies and drone strikes, President Obama invited Congress on Thursday to consider ways for “increased oversight” of lethal action outside warzones, including creation of a secret court or an executive branch panel. He said each option “poses difficulties in practice.”

Here are Obama’s specific remarks on the topic, taken from a text of his speech as prepared for delivery:

“Going forward, I have asked my Administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress. Each option has virtues in theory, but poses difficulties in practice. For example, the establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial (more…)

Op-Ed: Ship U.S. Judges to Hold Guantánamo Detainee Trials

With the U.S. military commissions system for trying terror suspects at “a point of no return,” why not send federal district judges to Guantánamo Bay to resolve the detainee trials that remain?

Bruce Ackerman and Eugene Fidell, who teach at Yale Law School, make that proposal in a New York Times op-ed entitled “Send Judges to Guantánamo, Then Shut It.”

There is historical precedent for creating federal civilian courts in lands under U.S. military control, they argue. They say the remedy they propose is appropriate since Congress has barred bringing Guantánamo detainees to the U.S. mainland for prosecution in federal courts.

Amid a prisoner hunger strike and a potential for suicide attempts, the authors write, “Presidential speeches will not suffice to cut short the series of tragic episodes that loom ahead. Only dramatic action will induce the prisoners, and the larger world, to take seriously America’s determination to end this legal nightmare.” President Obama recently renewed his pledge to close the detention facility (see Gavel Grab).

Amid Prisoner Hunger Strike, Obama Renews Close-Gitmo Vow

With prisoners at Guantánamo Bay engaged in a hunger strike, President Obama renewed on Tuesday a pledge to close the prison.

“It’s not sustainable,” Obama said at a news conference, according to the New York Times. He continued, according to a transcript of the news conference:

“I mean, the notion that we’re going to continue to keep over a hundred individuals in a no man’s land in perpetuity, even at a time when we’ve wound down the war in Iraq, we’re winding down the war in Afghanistan, we’re having success defeating al-Qaida core, we’ve kept the pressure up on all these transnational terrorist networks, when we’ve transferred detention authority in Afghanistan — the idea that we would still maintain forever a group of individuals who have not been tried — that is contrary to who we are, it is contrary to our interests, and it needs to stop.” (more…)

Book Review: Terror Court System 'Has Floundered'

Wall Street Journal reporter Jess Bravin’s book, “The Terror Courts: Rough Justice at Guantanamo Bay,” details the  military tribunal system that was established after 9/11 to prosecute and convict those accused of terrorism. Now a New York Times review prominently highlights the disturbing questions the book raises about the tribunal system:

“Supporters portray them as the tough-minded way to handle terrorism cases and civilian courts as weak. Yet in those civilian courts federal prosecutors have repeatedly demonstrated an almost ruthless effectiveness, winning severe sentences without grounds for successful appeal. Meanwhile the military tribunals experiment started by the Bush administration and now continued, after some reforms, by the Obama administration, has floundered; to date the only two guilty verdicts won at trial were vacated by an appeals court, leaving a handful of plea deals in which defendants gave up their right to appeal in exchange for brief sentences.”


Article: Terror Case a 'Template' for Federal Court Prosecution

The decisions made in 2011 by Obama administration officials in connection with interrogating a Somali national terror suspect aboard a Navy ship overseas, and then prosecuting him in federal court, come under the microscope in a lengthy Washington Post article.

Handling of the case of Ahmed Abdulkadir Warsame (see Gavel Grab), coming at a time of debate about federal courts vs. military commissions as the best venue for prosecuting terror suspects,has become something of a template for other terrorism suspects captured overseas,” the Post reported.

Warsame provided information to his interrogators about Muslim cleric Anwar al-Awlaki, who became an important target for the United States. Only a few weeks after Warsame was brought to the United States from the Navy ship, an armed drone kill al-Awlaki in Yemen.

Editorial: Terror Trial Rightly Belongs in Federal Court

The case of Sulaiman Abu Ghaith, a son-in-law of Osama Bin Laden who is charged with plotting terror against Americans, squarely belongs in federal court instead of before a military tribunal, a Santa Rosa (Ca.) Press-Democrat editorial declared.

While some lawmakers contend that he should face a military tribunal at Guantanamo Bay, the editorial said that “federal courts have ably handled hundreds of terrorism cases, safely and publicly, without compromising national security or creating a threat to public safety.”

The editorial also said that Mr. Ghaith is charged with conspiracy, which is not a war crime; that President Obama has not given up on plans to close Guantanamo; and that Mr. Ghaith would face a life term in prison if convicted in the federal court system, where he now faces charges. It concluded:

“Military tribunals and indefinite detentions at Guantanamo without any legal proceedings have damaged the United States’ reputation around the world. Trying this case in federal court would demonstrate the capability and legitimacy of the criminal justice system, reflecting more than two centuries of American legal traditions.” (more…)