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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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.”