Abu Ghaith should be subject to an Article 5 hearing under the Geneva Conventions, Ruiz says, which would determine the status of a prisoner of war or enemy belligerent.
Critics argue that charges such as conspiracy are designed to keep these kinds of defendants out of a military court. The D.C. Circuit court overturned a conviction against Osama bin Laden's driver, Salim Hamdan, for "material support for terrorism." Like conspiracy, this has never been a war crime and thus it could not be decided by a military commission.
"Between the ongoing legal challenges at Gitmo and the long record of success with these kinds of cases in the federal courts, any prosecutor interested in winning a conviction would pick the federal courts any day," says Deborah Pearlstein, law professor at Yeshiva University and an expert on national security law.
Abu Ghaith's arrest and extradition remains hazy. He was reportedly arrested in Turkey in January, but released after authorities determined he had not broken any local laws. Turkey decided to extradite him back to Kuwait via a stop in Jordan, where local authorities detained him. He was turned over to American officials and sent to New York on Thursday, reports the Arab Times Online.
This story was corrected on 3/10/2013 to change the description of charges against Mustafa al-Hawsawi, as well as Navy Cmdr. Walter Ruiz's description of the conflict and crimes.