It has been a dramatic week in a federal courtroom just off Foley Square in southern Manhattan, where the trial of Sulayman Abu Ghayth has been taking place. The Kuwaiti preacher and one-time confidant of Osama bin Laden was pulled off a plane while transiting through Jordan last year under mysterious circumstances and handed over to the FBI.
Abu Ghayth unexpectedly took the stand himself Wednesday, admitting under oath that he took direction from bin Laden in recording televised statements praising the September 11, 2001 attacks. But he also denied membership in the group as well as any advance knowledge of its armed operations, assertions that Khalid Shaikh Muhammad — the self-proclaimed mastermind of the September 11 attacks, currently detained in Guantánamo — corroborated in a statement released earlier this week. The jury trying Abu Ghayth is unlikely to hear this evidence, however, as the presiding judge denied a defense motion to seek Muhammad’s testimony in the case.
Much of the drama around Abu Ghayth’s trial for conspiracy to murder and charges related to material support for terrorism has revolved around the question of what he knew and when, especially whether he had advance knowledge of the “shoe bomber” plot. This week’s headlines dwelled on his dramatic testimony about meeting bin Laden in a cave shortly after the September 11 attacks and his warning the Saudis of disastrous consequences to come.
Yet what is most striking has been the relative ordinariness of the Abu Ghayth trial: For over a decade, the idea of bringing Guantánamo detainees to the United States has been a third rail in Congress, conjuring the notion that civilian courts would be paralyzed by legal technicalities, provide defendants with a platform for making a mockery of the justice system, and invite more attacks. The Abu Ghayth trial exposes these arguments for the scaremongering they have always been. Indeed, it has been the military commissions that have instead been mired in constitutional challenges and beset by detainee refusals to cooperate. The real issue, of course, has been that trying Guantánamo detainees in civilian courts would impose on judges the unappetizing choice of either rubber-stamping statements obtained through torture or tossing them out and thereby provoking a clash with the executive branch.
For many war-on-terror liberals, the Abu Ghayth trial shows that the criminal justice system is “up to the task” of handling such trials. After all — though most liberals may not put it this way — if US courts can shovel millions of people into what is arguably the largest ever racialized mass incarceration complex in the history of humanity, putting a few universally reviled Islamists behind bars seems a trivial task. Federal criminal prosecutions have a conviction rate of over 90 percent. The laws on the books are incredibly broad: In 2010, the Supreme Court held that even NGOs advising “terrorists” on how to conform to international law could be prosecuted for providing material support to terrorism. And in recent years, the government has convicted dozens of American Muslims for alleged “plots” that were instigated by paid informants.
While unwilling to invest domestic political capital in closing Guantánamo, the Obama administration has quietly brought a few foreign suspects to the US, although, to be sure, the vast majority of detainees in the global war on terror continue to be held by proxies or clients abroad. The handful of trials involves high-profile “catches” against whom prosecutors feel they can build a case without using statements obtained through torture. Aside from Abu Ghayth, the Obama administration has prosecuted two such men using pre-September 11 indictments stemming from the 1998 bombings of US embassies in east Africa: Ahmad Khalfan Ghaylani, the only former Guantánamo and CIA “black site” detainee to be tried inside the US, was sentenced to life in prison in 2011; and Nazih al-Ruqay‘i (Abu Anas al-Libi), abducted by US forces in Libya last fall (video), is currently awaiting trial in New York.
Finally, there is the strange case of Ahmed Warsame, a Somali captured in the Red Sea in 2011 and interrogated aboard a US navy vessel for two months without access to a lawyer. Warsame’s subsequent guilty plea was kept under seal for over a year; my guess is that the government brought him in to testify against Somali-Americans suspected of fighting overseas.
This use of domestic courts to prosecute a handful of detainees captured overseas represents less a move toward an imaginary “rule of law” and more a refinement in America’s global carceral network. Detainees continue to be held in and shuttled between the prisons of client states, military bases (Bagram, Guantánamo), and makeshift holding centers in naval vessels, safe houses and hotel rooms, with varying degrees of US involvement.
Legally integrating domestic courts into this network is the Ker–Frisbie doctrine articulated by the Supreme Court, which essentially holds that the manner of a defendant’s capture — including overseas abduction in violation of international law — has no bearing on his or her case. Thus, Abu Ghayth’s mysterious transfer from Iranian to Turkish to Jordanian to American hands remains outside the parameters of the trial. And in Ghaylani’s case, judges ruled that the five years spent in CIA and military custody without charge did not violate his constitutional right to a “speedy trial.” For war-on-terror liberals desperately clinging to civilian courts as an alternative to Guantánamo, such injustices are a small price to pay for what they see as a step toward restoring the rule of law.
When viewed as part of a global network of carceral sites, however, what’s most striking is that “good” domestic civilian courts and “bad” extraterritorial military ones can not only coexist, but they can even reinforce one another. Khalid Shaikh Muhammad may be allowed to deliver lengthy statements from offshore in the military commission explaining his casus belli against the United States but cannot testify in Abu Ghayth’s trial in New York, where his words may actually help decide a case. The US is happy to afford him enough speech in a courtroom to confirm the menace he allegedly poses but not enough to assist in the pursuit of justice.