Sulaiman Abu Ghaith is a high-profile member of al Qaeda. But his trial, which began Monday (03.03.2014), is taking place in federal court in New York and not before a military tribunal at the Guantanamo prison camp.
Sulaiman Abu Ghaith is Osama bin Laden's son-in-law and was also his spokesman. He is seen as the highest ranking member of the al Qaeda terrorist network to ever be in an American court.
The fact that Kuwait-born Ghaith does not have to appear in military court at Guantanamo Bay, but rather in a federal court in New York, was a cause of dispute in the US. "I think we're creating a precedent here that will come back to haunt us later," South Carolina Senator Lindsey Graham (Rep) criticized. He and other conservative politicians would have preferred it if military judges in Guantanamo Bay had presided over the terror suspect's trial.
Military court not the relevant authority
According to Daphne Eviatar, a law expert with the NGO "Human Rights First", US authorities did not have any other choice.
"They could not really bring [the case] before a military court because of the charges of conspiracy and material support for terrorism," Eviatar told DW. Neither of these charges can be tried in a military court, which are for war crimes, she added, saying it's a legal gray zone whether terror suspects can be tried and sentenced by military judges.
Federal prosecutors accuse Abu Ghaith of being an accomplice of "shoe bomber" Richard Reid.
In December, 2001, Reid attempted to blow up a plane on the way from Paris to Miami with explosives in his shoe, but was caught just in time and overpowered by flight attendants and passengers.
Abu Ghaith warned of an "airplane storm" in a fall 2001 video. The prosecution views this as proof that he knew about the failed shoe bomb attempt.
Abu Ghaith became known after appearing in video messages alongside Osama bin Laden. After 9/11, he defended the attacks, threatened additional terrorist attacks and called for an assault on the United States.
He was arrested in Turkey in February 2013 after years spent in Iran under unknown circumstances and later brought to New York.
Terror trials in civil courts are routine procedure
The fact that his trial is now taking place in a civilian court in New York is nothing unusual, Daphne Eviatar told DW. Federal courts in the US have held more than 500 terror trials since 2001, she noted. "There have been many terror trials in New York and in other courts in the United States," Eviatar said, "and they're all in some sense a model for how this first civilian case could be brought against a 9/11 defendant."
New York has experience with trials against alleged al Qaeda terrorists: In 2010, Ahmed Ghailani was sentenced to life in prison here, for supporting the attacks at the US embassies in Kenya and Tanzania in 1998. Andrea Prasow, law expert with Human Rights Watch, was present at the trial and calls it a "non-event." According to Prasow, no great fuss was made about it and "New York faced no existential threat."
"Each time a terrorism suspect is brought before a federal court instead of Guantanamo, it's a reminder that that is the appropriate forum," she said. The Obama administration did publicly commit to civil trials for terror suspects. "But this doesn't appear to be the case for prisoners already at Guantanamo," Prasow criticized.
One argument, besides the legal one, that strongly speaks for federal courts in such cases, according to Daphne Eviatar is obvious: "There are clear-cut rules. It is clear how to deal with intelligence sources, what the defense and its clients are allowed to see and what not, how witnesses who wish to remain anonymous are interviewed. Many problems crop up when dealing with international terrorism," Eviatar said.
Military courts with "disastrous" results
Military courts, on the other hand, have hardly any comparable experience, since they are a "completely new system," according to Andrea Prasow.
The Human Rights Watch law expert calls them a "newly created, flawed court system" which has had "disastrous" results in practice. She says that so far, military courts have issued all of seven verdicts, some of them still contentious today.
After the 9/11 attacks, President George W. Bush had created the military court system with a "military order" in November 2001, encountering strong opposition by lawyers and some politicians.
The unclear legal positions in Guantanamo also play a part in Abu Ghaith's trial. The defense, for example, sees Khalid Sheikh Mohammed, an alleged mastermind behind the 9/11 attacks, as a witness who could exonerate Ghaith. But he is being held in Guantanamo and cannot simply be visited and questioned. So now there will be a written exchange of questions and answers.
For US security agencies, there's a big advantage to this procedure: they can read along. "As long as both parties agree to that, I think it's acceptable," Andrea Prasow said. "But the only reason that they have to come up with this agreement is because Khalid Sheik Mohammed is held at a secret part of Guantanamo and not allowed to speak to the public for fear that he may describe details of the [alleged] torture that he experienced, which the US government doesn't want anyone to know about."