The Right Call: Benghazi Suspect to be Tried in Civilian Court
The E. Barrett Prettyman U.S. Courthouse in Washington, DC [Wikimedia, accessed 6/30/14]
On Saturday, Ahmed Abu Khatallah, the alleged mastermind behind the Benghazi attack, appeared in a Washington, D.C., court to plead not guilty to charges of conspiring to support terrorism. Khatallah’s arraignment in an Article III federal court has prompted outrage from conservatives who claim Khatallah should be tried as an enemy combatant or war criminal, argue that he should be detained at Guantanamo Bay, and suggest he was insufficiently interrogated. But these complaints ignore the facts of the case. Legal experts have noted that Khatallah could not have been tried as an enemy combatant, as he has not been part of any armed conflict in a legal sense. He was also interrogated by the nation’s elite interrogation unit, which specializes in terrorist suspects, and will now be tried in a court system that has a strong track record of convictions in terrorism cases. Advocates of incarcerating Khatallah at Guantanamo Bay not only ignore the legality of doing so, but perpetuate the fiction that the “expensive and unnecessary” facility makes the United States safer, when in fact it undermines the nation’s principles and national security.
Khatallah is a criminal, not an enemy combatant from the point of view of the law, and alleged thugs do not have the right to be treated as warriors. Jack Goldsmith of Harvard Law School explains, treating Khatallah as an enemy combatant and using “military detention does not appear to be an option because the United States does not appear to believe that Abu Khattala and the others who perpetrated the Benghazi attacks fall within the [2001] AUMF…Joint Chiefs Chairman General Martin Dempsey stated: ‘The individuals related in the Benghazi attack…They don’t fall under the AUMF authorized by the Congress of the United States.’” Goldsmith continues, “What about trial in a military commission?…Section 948c of the Military Commission Act [MCA] of 2009 provides (my emphasis): ‘Any alien unprivileged enemy belligerent is subject to trial by military commission as set forth in this chapter.’” However, Goldsmith explains, “Abu Khattala is an alien and not a privileged belligerent. It might appear that he is an unprivileged belligerent because he has (or is alleged to have) ‘engaged in hostilities against the United States.’ However, the MCA defines ‘hostilities’ to mean ‘any conflict subject to the laws of war,’ i.e., probably, an armed conflict. While the Benghazi attacks were horrific, they might not – indeed, almost certainly don’t – rise to the level of a stand-alone armed conflict.”
NSN Senior Advisor Maj. Gen. Paul Eaton (Ret.) adds, “There is an ideological split in the United States where there are those who would award warrior or combatant status to terrorists. From my perspective as a retired soldier, shared by many, many of my flag rank colleagues, men like the Benghazi terrorist Khatallah are thugs and criminals who warrant disposition in our federal court system, not in a military court.” [Jack Goldsmith, 6/18/14. Paul Eaton, 6/30/14]
Before being arraigned in a federal court, Khatallah was interrogated by the nation’s elite interrogation unit. While it’s too soon to know what information was gleaned from Khatallah, he was interrogated for 10 days by the High-Value Detainee Interrogation Group (HIG) aboard a U.S. Navy vessel. According to the FBI, “the mission of the HIG is to deploy the nation’s best available interrogation resources against detainees identified as having information regarding terrorist attacks against the United States and its allies.” The HIG has the most relevant experience for such interrogations, having interrogated Abu Anas al-Libi, who is charged with the bombings of U.S. embassies in Kenya and Tanzania, Faisal Shahzad, the attempted Times Square bomber, and Dzhokhar Tsarnaev, who with his brother perpetrated the Boston Marathon bombing. [FBI Fact Sheet, accessed 6/18/14]
Civilian courts are a vital national security tool with a proven record of convicting terrorists. Even if Khatallah could be tried as an enemy combatant, it is unclear what the benefit would be. Article III courts have demonstrated time and time again their reliability in counterterrorism cases. According to the Center on Law and Security at the NYU School of Law, “Approximately 300 prosecutions, from 2001 to 2011, resulted in indictments related to jihadist terror or national security charges. Of the several hundred resolved cases in this category, 87% resulted in convictions, roughly the same conviction rate that we find for all federal criminal indictments. The indictments remained relatively steady from 2003-2007, during the Bush years, with an average of 27 per year. During 2009 and 2010 . . . the numbers of indictments per year nearly doubled. So, too, the proportion of serious charges increased appreciably.” As Sen. Patrick Leahy (D-VT) told reporters when Khatallah was captured earlier this month, “We’ve shown the rest of the world our system works…I like our justice system. I’m not afraid to try these people.” [Terrorist Trial Report Card, 2011. Patrick Leahy via Roll Call, 6/17/14]
As a matter of national security, the U.S. government should close the Guantanamo Bay detention facility, not send more prisoners there. Despite calls to detain Khatallah at Guantanamo Bay, his capture and arraignment demonstrate that the prison is unnecessary – but not only that, it’s financially wasteful and a threat to U.S. national security. Of the 149 prisoners still detained at Guantanamo Bay at a cost of $2.7 million annually per detainee, 78 have been cleared for release, by both the Obama and Bush administrations. U.S. prisons have demonstrated that they are perfectly capable of holding convicted terrorists: Richard Reid (the shoe bomber), Ramzi Yousef (1993 World Trade Center bomber), Faisal Shahzad (Times Square bomber), and Sulaiman Abu Ghaith (Osama bin Laden’s son-in-law) are all incarcerated domestically. Moreover, as long as the Guantanamo Bay prison remains in operation, it will continue to damage U.S. national security and its diplomatic relations with the world. As Secretary of State John Kerry wrote to Sen. Robert Menendez (D-NJ) in November 2013, “The continued operation of the Guantanamo facility damages U.S. diplomatic relations and our standing in the world. It undermines America’s indispensable leadership on human rights and other critical foreign policy and national security matters. In particular, the Guantanamo detention facility impedes joint counterterrorism efforts with friends and allies.” [John Kerry, 11/13/13]
