On March 8, 2013, Sulaiman Abu Ghaith was arraigned in federal district court in the Southern District of New York on the charge that from May 2001 to 2002 he participated in a conspiracy to kill United States nationals. Abu Ghaith cannot be tried for conspiracy in a military commission like the one currently underway at Naval Station Guantanamo Bay, Cuba.
Why? Because, at least here in the United States, "the rule of law" still has meaning. In January 2013 the D.C. Circuit court, which has appellate jurisdiction over the Guantanamo military commissions, ruled what most legal observers already knew: that conspiracy was not a crime under the law of war before 2006. Thus, the Guantanamo military commissions have no jurisdiction over the 2001-2002 conspiracy charge that Abu Ghaith faces. Bringing Abu Ghaith to federal court was the government's only viable option that incorporated the rule of law.
It should come as no surprise, as higher courts continue to strike down and overturn decisions of the Guantanamo military commissions, that the federal courts have again become the preferred method of trying those accused of terrorism. Some cheerleaders for the Guantanamo military commissions have questioned the federal courts' ability to handle high-profile terrorism cases because of concerns about physical security or handling of classified information. Yet, federal courts routinely handle terrorism cases large and small every day while following ancient legal principles like due process, equal protection under the law, and the right to privileged communications with an attorney. The Guantanamo military commissions have sacrificed these values and diminished our standing in the world without making anyone safer.
About Sterling Thomas Defense Counsel for 9/11 Defendant Ammar al Baluchi
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
Stephen Vladeck Professor of Law at the American University Washington College of Law
Daniel J. Gallington Senior Policy and Program Adviser at the George C. Marshall Institute
Mike Rogers Chairman of the House Permanent Select Committee on Intelligence