Judge Lewis Kaplan in the Southern District of New York has been keeping busy. In just the last week, Judge Kaplan issued three decisions in the case of Osama bin Laden’s son-in-law, Suleiman Abu Ghayth, an alleged al Qaeda propogandist charged with conspiring to kill Americans and materially supporting terrorism. First, the judge delayed the trial by just 20 days, following the defendant’s request for a continuance. Abu Ghayth is now scheduled for trial starting February 24 — less than a year since his arrest on Feb. 28 of last year.
Then, Judge Kaplan decided he’d allow the government to have an unnamed cooperating witness, convicted on a terrorism offense in the United Kingdom in 2003, testify via a video link from the U.K. He also granted defense lawyers’ request for permission to call as a witness Salim Hamdan, the convicted former driver of Osama bin Laden.
The government’s witness, described in court documents as having been arrested and convicted in the U.K. in connection with “an al-Qaida plot to detonate a shoe bomb on a transatlantic airplane,” is widely believed to be Saajid Badat, an alleged co-conspirator of Richard Reid, the so-called “shoe bomber” who pleaded guilty to eight counts of terrorism and is serving a life sentence in a Supermax prison in the United States. (Reid was convicted for his failed attempt to bomb an American Airlines flight headed from Paris to Miami by detonating a device hidden in his shoe.) Abu Ghayth’s lawyers had objected to the testimony on the grounds that the government refused to identify the witness and would not bring him to the United States to testify. The government says he’s refused to come to the United States because he’s under indictment in Massachusetts.
Demonstrating his even-handedness, Judge Kaplan this week also agreed to allow the defense to call its own controversial witness: Osama bin Laden’s former driver. Convicted in 2008 of providing material support for terrorism by a U.S. military commission at Guantanamo Bay, Salim Hamdan will be allowed to testify by video link from Yemen on Abu Ghayth’s behalf.
Brought to Guantanamo by U.S. forces in 2002, Hamdan served a total of five and a half years at the Guantanamo detention facility and was transferred to Yemen in 2008 after receiving credit for time served. He was released from Yemeni custody two months later. In 2012, the D.C. Circuit Court of Appeals overturned his conviction on the ground that “material support” for terrorism, which was not considered an international war crime when Hamdan was working for bin Laden, is therefore not a legitimate charge in the military commissions. The full D.C. Circuit has since decided to review that decision en banc.
While Hamdan’s case and the cloud of uncertainty still hanging over it is typical of how the military commissions have operated since their creation after the September 11 terrorist attacks, the Abu Ghayth case is typical of federal court prosecutions. Since September 2001, more than 500 individuals have been convicted on terrorism-related charges in U.S. federal courts. The military commissions have completed only seven cases; two of those convictions have been vacated and remain on appeal.
The experience, efficiency and even-handedness now on display in Judge Kaplan’s handling of Abu Ghayth is exactly how cases in the U.S. justice system are supposed to work. It should be the model for all future terrorism cases going forward.
Unfortunately, Congress has made that impossible for any of the 155 detainees left at Guantanamo by blocking their transfer to the United States for trial. And the Obama administration has signaled it is considering adding to the embarrassing legacy of military commissions by sending a Russian man now imprisoned in its detention facility in Afghanistan to a military commission in the United States. That would be a terrible mistake, and would signal a tacit approval of the fiasco that the U.S. military commissions have become.
The administration should instead be working with Congress to lift the restrictions on transfers to the United States for trial in next year’s National Defense Authorization Act. That would send the message that the United States government really takes terrorism seriously — by letting only experienced jurists in a credible judicial system bring its perpetrators to justice.