March 10 (Bloomberg) -- As Sulaiman Abu Ghayth, son-in-law of Osama bin Laden, was pleading not guilty to charges of terrorist conspiracy in a federal court in New York, several congressional Republicans were accusing the Barack Obama administration of going easy on terrorism.
“We should treat enemy combatants like the enemy -- the U.S. court system is not the appropriate venue,” said Representative Mike Rogers of Michigan. “The president needs to send any captured al-Qaeda members to Guantanamo.”
Actually, the administration made the right call in a tough situation, which has been needlessly complicated by elected officials of both parties.
What were the other options for handing Abu Ghayth, who was captured in Turkey this year and taken into custody Feb. 28 by U.S. officials in Jordan?
Well, placing him into the military tribunal system at the U.S. naval base in Guantanamo Bay, Cuba, was a nonstarter for two reasons.
First, Abu Ghayth’s alleged offense, conspiring with al-Qaeda members to harm American citizens, isn’t recognized internationally as a war crime. Recall that the conviction in a military tribunal of Salim Ahmed Hamdan, a Yemeni who worked as bin Laden’s chauffeur, was overturned by a federal court last year because the charge, “material support for terrorism,” wasn’t a recognized war crime at the time. Why step back into that trap?
What’s more, the Hamdan reversal apparently played a large role in the decision by Brigadier General Mark Martins, the chief prosecutor at Guantanamo, to drop conspiracy charges against Khalid Sheikh Mohammed and four others awaiting trial for the Sept. 11 attacks. If conspiracy is the best we can do with Abu Ghayth (and, given the hazy nature of his al-Qaeda past, it may well be), civilian court is the venue to try him. In fact, civilian prosecutors favor a conspiracy charge because it is a broad blanket that doesn’t require linking the suspect to any individual plot.
Second, the stalemate between Obama and Congress over Guantanamo’s prison, which the president pledged to close in his first week in office, continues. Congress has made it impossible for the people held there to be brought to the U.S. by refusing to appropriate any money, and Obama refuses to allow any new suspects to be brought to Cuba.
This has left the U.S. with a number of unpalatable options, including annihilating suspects with drone attacks -- the current default option, it seems -- “renditioning” them to the custody of foreign allies or hacking into the criminal legal system.
Something has to give: Best would be for Congress to open a detainment center in the U.S. If not, Obama has to consider reopening Guantanamo to new inmates.
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