Lessons from Abu Ghaith — 11 March 2013

Sulaiman Abu Ghaith is going to face a judge and jury.  This man, son-in-law to Osama bin Laden, was part of the 9-11-era al Qaeda leadership, and was seated next to OBL in the video in which the latter claimed credit for the worst terrorist strike on American soil.

The fact of this one man’s arrest and indictment is not terribly important.  He was by now a bit player in the al Qaeda cast, living under house arrest in Iran for much of the past few years.  However, the tendrils that snake out of this story are interesting to follow, and add up to utter policy incoherence on the part of the Obama administration.

In the first place, it is worth noting that he was arrested a month ago by Turkey, where he had gone for undisclosed reasons from Iran.  Ankara refused for a month to release him to the US, opting instead at the end to deport him to Kuwait.  At a stopover in Jordan, US agents boarded his plane and took him into custody.  Point one: what kind of dividend is our President’s vaunted “reset” with the Islamic world paying, when we can’t even get the most Westernized country of the lot – and a NATO ally to boot – to assist us with the capture of a sworn enemy?

Secondly, Attorney General Eric Holder intends to try SAG in lower Manhattan – the same court in which he had earlier ambitions to try Khalid Sheikh Mohammed, the alleged (by his own boasts) mastermind of the 9-11 attacks.  That plan, readers will recall, was scotched when bipartisan outrage rose up against the idea of giving an al Qaeda big shot a global stage from which to spout his venomous rhetoric.  Not to mention the security nightmare, and the temptation to every half-crazed zealot who might want to stage a spectacular event to try to spring him.

But the worst thing about the criminal-trial idea is that, if it’s the least bit of a fair trial, there has to be some chance of the accused going free.  Holder was practically guaranteeing a guilty verdict for KSM, and I’m sure they have similar confidence with SAG, but a good defense lawyer ought to be able to find some kind of technicality to argue and possibly win.  If the court process is a mere formality, and the fix is in, doesn’t that make a mockery of the notion that we’re being true to our ideals by submitting him to a trial?

Of course, KSM did not go to trial in Manhattan’s Southern District Court.  He is going to undergo a military tribunal in Guantanamo.  Which begs another question: if that’s good enough for one al Qaeda leader, why not another?  Why US criminal justice for SAG but military tribunal for KSM?  The jumbled standards indicates that the administration has no real legal policy to distinguish the cases, but is improvising on the basis of what it thinks it can get away with.

While we’re on the subject of Guantanamo, it’s worth asking why we didn’t send SAG there.  That’s precisely why it was built, and the military tribunals being held there are precisely the right venue to try illegal combatants and sworn enemies.  Abu Ghaith will be according full civil protections in our court system, when in fact he does not merit even the protections of the Geneva Conventions. Al Qaeda routinely breaks the rules of war – indeed, their strategy is built upon violating civilized standards – so there’s no justification for affording him habeas corpus and all the rest.

One of those protections is, of course, the right to remain silent.  Apparently SAG gave investigators an extensive statement after his arrest, but one can be sure that’s the limit to any intelligence we’ll get from him once he gets lawyered up.  Is that wise?  One of the keys to assembling intelligence is to be able to go back to prisoners with new bits of information so they can – either by affirmation or by avoiding the question – confirm its validity.  That’s how we identified the courier that led us to bin Laden.  That’s gone with Abu Ghaith.

Not that our administration seems all that interested in intelligence these days anyway.  Our current chosen method of dealing with terrorist targets is the antiseptic method: vaporize them with a Hellfire missile from a passing drone.  That suits President Obama right down to the ground.  It enables him to look tough on terrorists, without putting at risk our own troops by making them do the unpleasant work of hunting down the bad guys to kill or capture.

What you don’t get when you dispatch the enemy that way is any opportunity to interrogate them, and find out what they can tell you about the next attack – on a consulate in eastern Libya, for example – or any other pertinent data point.  Mr. Obama appears willing to dispense with intelligence like that; it gives me the sense that we are eating our seed corn – blowing up the sources that could help us catch the next generation of Islamic fanatics.  They’ll still be out there, but we’ll just have less chance to figure out who they are.

One thing the civil liberties folks should mind much more than they do is that these drone strikes inevitably kill not just the target – at which they are very good, make no mistake – but also anybody else who has the misfortune to be standing or riding in the vicinity of the target, including the terrorist’s children.  I can only imagine the storms of criticism if George W. Bush had that cavalier an attitude toward collateral damage.

While we’re on the subject of drone attacks, it’s worth mentioning Rand Paul’s old-fashioned filibuster in protest of Holder’s evasive answer to a simple question: does the administration think it can decide unilaterally, as prosecutor, judge and jury, to attack a US citizen on US soil from a drone if he is not engaged in war against the US?  That question might seem far-fetched; after all, while the President’s war-making powers are vast, Holder’s rules of drone engagement specifically state that one condition is that normal methods of capture are not available.  As Holder said, that situation is hard to imagine in our country.

Until you think of Waco.  Is it beyond imagination that the US government might have used a drone strike to settle that standoff?  After all, their chosen method of resolution led to the deaths of 76 men, women, and children.  Or the one at Ruby Ridge, in which one of the first victims was a fourteen-year-old boy shot in the back by a Federal agent?  It gives one pause.

So the case of Sulaiman Abu Ghaith gives us an opportunity to reflect on a government that a) has utterly failed to improve our standing in the Muslim world; b) doesn’t have a coherent policy about how, when and where to try captured terrorists; c) gives illegal combatants legal rights that should inure only to US citizens; d) by giving those rights, explicitly foregoes the ability to conduct lengthy interrogations of high-value prisoners; e) still doesn’t know what to do with Guantanamo; f) is enamored of drone strikes as a counter-terrorist weapon, despite the inevitable deaths of bystanders and the loss of intelligence value.

And the Attorney General still isn’t sure if the President can declare you a combatant and drop a Hellfire on your head.

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