Khalid Sheikh Mohammed's 2008 arraignment took 13 hours. That case is still pending in pre-trial hearings at a "state of the art" facility in Guantanamo Bay with four other alleged co-conspirators where legal experts say there is no end in sight.
By comparison, the son-in-law of Osama bin Laden was in a New York federal court on Friday for only 17 minutes. Judge Lewis Kaplan, who has presided over the cases of other alleged al Qaeda operatives, explained to Sulaiman Abu Ghaith his rights regarding federal charges of conspiracy to kill Americans. He appointed defense counsel, read the charges and registered Abu Ghaith's plea of "not guilty."
There were no security problems or disturbances of any kind, reports Daphne Eviatar, senior counsel with legal advocacy group Human Rights First, who witnessed the public proceeding.
"This case is a perfect example of why all terrorism cases should be held in civilian U.S. federal courts and not in Guantanamo military commissions," she says. "Federal court judges are far more experienced in handling these complex cases, they have life tenure so they're not subject to political persuasion, and the law and legal procedures are all perfectly clear."
"In fact, the government this morning said it's already turned over the bulk of the unclassified evidence in this case to the defense. In the 9/11 case, the lawyers are still arguing over what evidence the defense is entitled to see, and the judge is nowhere near setting a trial date," says Eviatar.
The arrest, extradition, detention and upcoming trial of Abu Ghaith is the latest reminder of the complicated process of dealing with America's 21st century enemies. Previous detainees have been housed in foreign countries, or even on U.S. Navy vessels in open waters to avoid having to hold these combatants on sovereign soil.
President Barack Obama's campaign promise of closing the Guantanamo Bay detention facility was interrupted by Congress in 2011, citing concerns over sending these prisoners to the U.S. or elsewhere. Republican Sen. Saxby Chambliss of Georgia spoke about the issue at the American Enterprise Institute last week.
"I have never seen a courtroom that compares to the courtroom we have now built at Guantanamo Bay. It is state of the art," he said. "These guys we took to Guantanamo, and particularly the guys who are still there, are the meanest, nastiest killers in the world."
"We're still gleaning information from those individuals today because of the rules of war," said Chambliss.
A discrepancy in applying these rules of war is precisely why one military lawyer believes the American legal system is losing credibility.
Navy Cmdr. Walter Ruiz represents Mustafa al-Hawsawi, one of the four men charged with Khalid Sheikh Mohammed. His client is accused of helping to finance the training of Sept. 11 hijackers and contributing to other attacks against Americans. Ruiz believes political motivations limited the charges against Abu Ghaith to conspiracy, a federal offense, which is why this man is not in the same detention facility as his client.
"The question is, are we at war? Are we not at war? Is this an armed conflict? Is this not an armed conflict?" he says. If this is an armed conflict and if the U.S. is at war, then Abu Ghaith's case should follow the same path as Mohammed's, he says.
Because of this, Ruiz says the U.S. government has "watered down our most basic and most cherished protections" to put Mohammed and his co-defendants into the Guantanamo Bay justice system. "At the same time, we take somebody who under that rationale, at least arguably, should be in that same command structure. We send him to a domestic court with a criminal process and we charge him with crimes that are not law of war crimes," Ruiz says. "The overall and greatest harm to the system of justice and to the rule of law is this inconsistency, this picking and choosing, and playing fast and loose with where we're going to prosecute these types of crimes."
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.
- Photos: Guantanamo Bay
- Guantanamo Judge Mutes Mics After Defense's Spying Claims
- Most Pressing Question at Guantanamo: When Will It End?
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.