Why Bin Laden’s Son-In-Law is in New York City, Not Gitmo

By law, Abu Ghaith should have been transferred to military detention.

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GAMMA-RAPHO / GETTY IMAGES

Al Qaeda spokesman Suleiman Abu Ghaith, left, and Osama bin Laden in a photo taken from a video and released by Al Jazeera in 2001.

The arrest and detention of Osama Bin Laden’s son-in-law, Suleiman Abu Ghaith, has reopened the question of whether top al Qaeda figures captured by the U.S. should be tried in civilian courts or in military commissions at Guantanamo Bay.

By law, Abu Ghaith should have been transferred to military detention under the provisions of the Fiscal Year 2012 National Defense Authorization Act, which requires all members of al Qaeda or associated forces to be taken into military custody at least temporarily. But the NDAA provides a wide carve out for the commander-in-chief’s discretion in war time. And the President is authorized to waive the requirement entirely if he certifies to Congress that end-running the law is in the national security interests of the United States.

Several senior administration officials tell TIME Obama exercised the waiver in Abu Ghaith’s case after consulting his top aides, opting to send Ghaith to trial in the Southern District of New York rather than to Gitmo. “The President’s national security team – including the Defense Department and members of the Intelligence Community, the Department of Homeland Security, the State Department, and the Department of Justice – unanimously agreed that prosecution of Ghaith in federal court will best protect the national security interests of the United States,” one senior official said.

Congressional leadership was informed of the decision, the administration officials say. Why did the administration choose civilian courts? “The Administration is seeking to close Guantanamo, not add to its population,” says one administration official. Says another, “There was no reason to try him anywhere but an Article III Court. That’s the best and most efficient way to bring him to justice, and that’s why there was unanimity in the government on that point.”

The history of civilian vs. military trials for al Qaeda figures has been politically difficult for the administration. In late 2009, Attorney General Eric Holder announced that the U.S. would transfer the mastermind of 9/11, Khalid Sheikh Mohammad to the Southern District of New York for trial. After months of political pushback from Congress, Obama relented and KSM remained at Guantanamo Bay. Despite Obama’s promise to close the prison at the base, it’s use as a terrorist jail has been prolonged indefinitely.

In the case of Abu Ghaith, the administration seems to have avoided the political trap by presenting Congress with a fait accompli. Abu Ghaith had been wanted by the U.S. since he emerged as the face of al Qaeda days after the attacks on the U.S. on Sept. 11, 2001, appearing frequently in videos with Bin Laden and his deputy Ayman al Zawahiri.

In 2002, after the U.S. invasion of Afghanistan, Ghaith was smuggled successfully into Iran, according to the indictment filed early this month in the Southern District of New York and unsealed Thursday. There he remained in circumstances that are unclear: some reports say he was under house arrest, others under more direct detention.

In early February, the CIA tipped off Turkish authorities that Ghaith was in Ankara, staying at a luxury hotel, according to the widely-read Turkish newspaper Hurriyet. Turkish media first reported Abu Ghaith’s arrest.

Turkish authorities arrested Ghaith, and the U.S. worked through intelligence channels in an attempt to arrange Ghaith’s handover to the U.S., a senior administration official tells TIME.

But things were not so easy. Reports Hurriyet:

A Turkish court decided to release Abu Ghaith after 33 days in detention on the grounds that he had not committed any crime in Turkey.

Ankara considered Ghaith a “stateless” person, as he was stripped of his Kuwaiti nationality after appearing in videos defending the 9/11 attacks and threatening further violence.

Turkish police also found no criminal record for Abu Ghaith, who entered the country illegally from Iran; he could therefore be deported to Iran or to another country of his choice. After Iran did not accept him, Turkey decided to send him to Kuwait via Jordan. Abu Ghaith was sent to Jordan on March 1, the same day U.S. Secretary of State John Kerry visited Turkey.

The Kerry visit was a coincidence, according to a senior administration official. The credit for arranging the transit through Jordan belongs to U.S. intelligence officials who helped negotiate it, a senior official tells TIME. The CIA has close relations with Jordan’s intelligence services, which made snatching him there possible.

Ghaith was flown from Jordan to New York where he will appear before a district judge Friday.

Senators Kelly Ayotte and Lindsey Graham immediately decried Abu Ghaith’s transfer to New York as a breach of the spirit of the 2011 law that required all senior Al Qaeda figures to be tried in military commissions. “The Congress has tried to tell the administration that when it comes to people like this we want them to go to Gitmo to be held for interrogation purposes,” Graham said at a press conference Thursday after news of the arrest broke.

But other Republicans have been muted in their criticism and some, like GOP New York Rep. Peter King, have come out in support of the administration’s handling of the case. “I commend our CIA and FBI, our allies in Jordan, and President Obama for their capture of al-Qaeda spokesman Sulaiman Abu Ghaith,” King said in a statement. “I trust he received a vigorous interrogation, and will face swift and certain justice.”

25 comments
ihk888
ihk888

some politicians are eager to get publicity at the expense of tax payers money. hundreds of millions dollars, to be wasted. NYC, already strained with budget. needs more theatrical shows like this one to spend. does any New Yorker care whether this guy's trial to be shown at the Broadway, so we can go watch with a paid ticket? who are the main politicians behind this stupidity to get TV time , so he or she, can jump to the next higher political ambition and we, American tax payers have to pay for it?

StephenSwain
StephenSwain

One wonders how so little clarity could be delivered relative to such an important topic.  Doubtless this guy will be found guilty.  If they didn't want to find him guilty, which he probably is in point of fact, they would have just shot him and dumped his body in the desert somewhere, saving the tax payers a huge boatload of time, money and bother.  But as OBL's son-in-law he provides some sort of symbol, one supposed with which to destabilize or demoralize al Qaeda.

But the question is:  what is the overriding national security interest that would best be preserved by trying him in New York.  That the article did not make clear.

KountyKobbler
KountyKobbler

The simple answer is best Conviction rates are higher in NY than  on the island and with the recent supreme court ruling  he had a better chance of loop hole dodging the results of a military trial.  This is one place that Lindsey Graham ideals  just prove ineffective  and most of what could be legitimately leanee in questioning  is likely  known now.  Look at the Court records of what has been the result of  both methods and this appears to be more likely better venue  for the national interest of the disposition of Justice for his part in the war  ( Too bad  that the Court of Public Opinion  has already judged the man with  only News conjecture as circumstantial evidence  is obvious)   If the Reports are truth hes guilty as sin  but if they are  not then  Nowhere in this nation would be a safe place IF people Knew  who he was His scarlet letter would condemn him  regardless where he was as the nature of the beast.


ARTRaveler
ARTRaveler

As I understand it, the man had and has no operational experience.  He is just a spokesperson.  The charge is comnspuiracy.  Conspuiracy is not covered in the rules for war crimes.  It is a civil issue and best handled by civilian courts.  Tribunals can not handle a case of conspiracy under accepted rules for war crimes.

Just becaause there are a bunch of scarity cat Congress critters doesn't change the rules of the court. The US mainland court system had tried over 200 terrorists and there are over 200 jailed in the US at present.

Palerider1957
Palerider1957

It is because this guy (bin laden) is one of pResident Obama's close personal friends. No other reason.

auronlu
auronlu

I still find it appalling that Republicans have so much contempt for the United States of America and its laws that they don't believe in its courts or legal system and would prefer an extralegal court with no jury.

Do they really think these terrorists are so guiltless that a U.S. court of law wouldn't be able to find anything to pin on them? 

fred.fries6
fred.fries6

If I remember correctly, the US did declare war on terrorists, to further that point, when I was on a vessel in the North Pacific one night a year and a half ago, I distinctly heard a US Naval Vessel, over the ship-shore radio, declare itself a US War Ship.  That is only done when the US is at war.  All other times it declares  itself a US Naval Vessel, correct me if I'm wrong.  I believe the US is still at war with terrorism.  Having said that, then these terrorist should all be taken to Gitmo where they will be treated accordingly.

Stephen_M_St_John
Stephen_M_St_John

Military Commissions or Federal Court..... it's a crap shoot for justice either way.  Both institutions have ignored my July 2009 discovery that the purported 9/11 "Dulles Airport" surveillance video is a complete fraud perpetrated by the US Department of Justice under Ashcroft and Chertoff.  Anyone accused of the horrific crimes committed on 9/11 has the right to be apprised of this exculpatory evidence.  This is just the tip of the iceberg!  Show trials stand on walls of silence and of shunning so the real perpetrators walk free.  Stalin would have loved it!  For details please see www.show-the-house.com/id107.html

PaulDirks
PaulDirks

This was no problem up until Obama. There are several terrorist located in prisons on US soil.

Don't forget that there's still a tremendous amount of pressure in place to justify waterboarding after the fact. The whole push to avoid the criminal justice system is the fact that evidence acquired under duress is inadmissible. In fact, Bush's interrogation program made the prosecution of detainees impossible. 

Most of the effort now in place is an effort to hide this fact.




Ivy_B
Ivy_B

I heard on the radio this morning that there have been something like 67 convictions in federal court and only 7 in the military tribunals.

If Graham (I'm a reserve JAG, doncha know) and his ilk had not stirred up all the fuss over bringing the GITMO prisoners to this country we would have done even better and GITMO could have been closed by now. We have SuperMax prisons that people just don't escape from and the big brave Republicans (and some dumb Democrats) were just skeered to have these people on American soil. 

As I have said before, when did the Republicans become such wimps?

MrObvious
MrObvious

This was no problem up until Obama. There are several terrorist located in prisons on US soil.

Senators Kelly Ayotte and Lindsey Graham immediately decried Abu Ghaith’s transfer to New York as a breach of the spirit of the 2011 law that required all senior Al Qaeda figures to be tried in military commissions. “The Congress has tried to tell the administration that when it comes to people like this we want them to go to Gitmo to be held for interrogation purposes,” Graham said at a press conference Thursday after news of the arrest broke.

Then this happened. A couple of our congress critters started wailing, bawling and shrieking.

And what brought on the 'spirit of the 2011 law'? The very same congress critters who filled diapers over seeing terrorists in our prison system (something we already have) when our prisons are filled with even worse cases of human scum. People that killed their neighbors with their teeth and such.


forgottenlord
forgottenlord

The other reality is that it's easier for the Administration to move him back to military custody (with some political capital hit) than it is the other way (which I believe is technically illegal).  If they can get him to trial, get him convicted, maybe this entire Gitmo debate will end and we can finally try these guys under proper American justice.

tnazar
tnazar

Graham and his sock puppet Kelly Ayotte apparently do not trust the civilian judiciary. That is more of a slippery slope than the idea that people do not need 30 round clips to look cool.

meddevguy
meddevguy

It's political. The President has been criticized by Republicans during the political campaign that passes for an Administration for not fulfilling his promise to close Gitmo. It has nothing to do with rules, laws, best places for trials, etc.

StevenHAhle
StevenHAhle

@ARTRaveler I guess you are unfamilar with jurice prudence as you are with morals.  Circumstantial evidence can be ruled inadmissable in a court, especially since most NY judges are liberals.  He can easily beat the charges.

StephenSwain
StephenSwain

@Palerider1957 You've been out in the sun too long, fellah.  Go back to the fridge, get another cold one, and chill out.  Your comment is totally irrational.

Palerider1957
Palerider1957

@auronlu You wish to castigate Republicans for showing contempt for the United States and our laws and Constitution.
This coming from somebody that has no problems with a President saying that the "Constitution is fundamentally flawed and remains so to this day", or "I can't wait for Congress to act", or how about, "Congress voted my plan down 3 times (Dream Act and Cap and Trade) and I don't like that, so I will issue an Executive Order doing it anyway".
You seem to have no problem with the utter secrecy of Pufnstuf's past, like whether he is Natural Born or not (He isn't and the Birth Certificate is a DISTRACTION READ the Constitution IT IS IN THERE!).
You have NO PROBLEM with Pufnstuf making void our Bill of Rights with his NDAA and his ability to now kill anybody he wants for any reason he wants, which is a VIOLATION OF LAW AND THE CONSTITUTION.
So, maybe you should educate yourself and stop being a mindless, kool-aid drinking, rhetoric pushing dolt.

gysgt213
gysgt213

@Ivy_B And Gitmo costs a lot of money to keep operational.  You and I will probably never find out the true costs, but whatever it is 7 convictions does not seem worth it since this farce has been around for over a decade now.

JeffLaz
JeffLaz

You are weird and stop yelling...

simbo52
simbo52

Another damn Birther must be Louie Gohmert and Michelle Bachman's illegitimate love child.