One wonders why this is such a "big deal" to the hard line political advocates of either position, i.e., whether to prosecute in federal court or a military commission. In short, Sulaiman Abu Ghaith should be prosecuted in the best forum—the one that maximizes the policy objectives of the prosecution in the first place. In other words, once the decision is made to prosecute a terrorist, the next decision is where best to do it.
Above all, prosecutors want convictions—and the forum chosen should be the one that has the best chance of one. This means that the evidence against the accused must be overwhelming if the Sulaiman case is to be tried in front of a civilian judge and jury—which it will be. Also, we can assume that the evidence against the accused is without serious problems. This means:
•Witnesses are available and willing to testify
•Incriminating documents are clear and convincing
•Logistics of the trial are manageable
•The probabilities favor the imposition of a significant sentence
In addition, we are hopefully at a sufficient stage in the war on terrorism that we can begin to try more of the less significant actors we catch and put them in our regular prisons. And, hopefully imprison them for a long time, like the "Blind Sheik"—Omar Abdel-Rahman—who is doing life in federal prison as a result of investigations arising from the 1993 World Trade Towers bombing. Recall that he was successfully prosecuted in federal court in 1995.
On the other hand, military commissions should continue to be an available alternative to try terrorists when the policy objectives require it, and there are a number of circumstances when the military commission is preferable to a trial in federal court. So, while terror-related prosecutions are increasingly routine in civilian courts, the military commission remains a necessary and, by definition, a more flexible response to the unpleasant and perhaps permanent reality of the worldwide threat from terrorism.
Bottom line: Our policy makers need to have the option of both forums, while the prosecutorial objective is the same in either.
About Daniel J. Gallington Senior Policy and Program Adviser at the George C. Marshall Institute
Daphne Eviatar Senior Counsel Associated with Human Rights First's Law & Security Program
Andy Worthington Freelance Investigative Journalist
Danny Gonzalez Director of Communications for Move America Forward
Sterling Thomas Defense Counsel for 9/11 Defendant Ammar al Baluchi
Stephen Vladeck Professor of Law at the American University Washington College of Law
Mike Rogers Chairman of the House Permanent Select Committee on Intelligence