Restoring the courts in America

Karen Greenberg in The Hill, July 11, 2014

Media Source

By Karen J. Greenberg

Two weeks ago, U.S. special forces entered Libya surreptitiously and abducted Abu Khattala, the alleged ringleader of the attack on the U.S. Embassy in 2012 that led to the killing of Ambassador Chris Stephens and three others. Abu Khattala has now been brought to the federal courthouse in Washington D.C. where he will be prosecuted. Khattala’s arrival is one of the more significant events that has happened in the war versus crime debate since 9/11, bringing with it answers to questions that have hovered – unanswered until now.

1. Guantanamo is history. First and most directly, the capture of Ahmed Abu Khattala is a validation that Guantanamo has no future beyond the detainees who have been there in indefinite detention since the Bush years.  Khattala fits the profile of the Guantanamo detainee- a foreigner, affiliated with a terrorist group, apprehended abroad, and accused of conducting terrorist activities oversees. After 9/11, these individuals in this category were brought to Guantanamo. No longer, it seems.

2. The military commissions are history. The move to federal courts is evidence of the renewed trust this administration has placed in the federal court system – rather than military commissions - as the go-to venue for trying terrorists. President Obama and Attorney General Holder have moved consistently in this direction. Or, rather, they have tried to move in this direction. In 2009, they pledged to bring the mastermind of 9/11, Khalid Sheikh Mohammed to federal court for trial, but eventually succumbed to political pressure for KSM to be tried by military commissions at Guantanamo instead, where, its worth pointing out, his trial has yet to begin. Over the course of the past year, the administration has quietly engineered the extradition of eight individuals from abroad to federal courts, making it clear that the future of terrorism prosecutions is not with the military commissions.

3. Courts are preferable to drones; drone warfare need not be a substitute for capture. One of the more unsettling aspects of the U.S. targeted killing drone program has been the administration’s insistence that drones are used where capture is not feasible. Just what made capture infeasible was never explained clearly but it led to the suspicion that killing was preferable to trial.  Abu Khattala’s capture could easily have been described as politically infeasible. He was abducted from a foreign country, without the cooperation it seems of the host country, a clear violation of international law. The capture of Khattala has at least for the moment opened the door for a category of individuals who are feasible to capture even where circumstances make it difficult.

4. Special terrorism or national security courts are not necessary. The courts can handle national security cases. Since 9/11, the Department of Justice has pledged itself to creating a robust and nation-wide system for terrorism prosecutions. Prior to 9/11, Manhattan held the portfolio for terrorism cases trying more high profile terrorists than any other court in the country. Over the past decade, with Department of Justice headquarters in Washington increasingly involved in the prosecutorial strategies, other federal courthouses were home to terrorism trials - Brooklyn Arlington, Virginia took the lead but Boston, Chicago, Miami, and San Diego and other federal courts have had their own cases to try, cases that involved both American citizens and foreigners. Abu Khattala’s trial adds the DC court to the roster of courts with major jihadi-related terrorism prosecutions. Slowly but surely, with Main Justice in Washington serving as the umbrella for these prosecutions, the federal system has come into its own.

5. Courts trump politics in when it comes to reliability and integrity. It is possible now to know much more about what happened at Benghazi. One of the major purposes of any trial is to bring out the truth – the facts of the crime. In a public prosecution, the who, what, when, where and why is put on display through physical evidence, witness statements, and the competing narratives of the prosecution and defense teams. Up until now, the disputed facts of the attack on the US embassy in Benghazi has been fodder for partisan hacks on both sides of the aisles.  If this case goes to trial (rather than a guilty plea at the outset), the truth of Benghazi may come to the fore – a not inconsequential event in an election year where the leading candidate– Hillary Clinton –the Secretary of State at the time of the attack, has been blamed for ignoring warnings and failing to protect the embassy. 

Khattala’s arrival in the U.S. carries with it a symbolic message for the future.  And the message is this: The U.S. Courts are the last bastion against all that undermines democracy – unlawful detention, secret court proceedings, kill lists, and the politicization of fact.  The federal courts are the most transparent, legitimate, and just system we have.  Civilian courts instead of military courts.  Courts instead of indefinite detention. Courts instead of drones. Courts instead of politics.  Above all, courts. The indictment of Abu Khattala has given the Obama administration a platform for making this statement. Hopefully, it will resonate into the future.

Greenberg is the Director on the Center on National Security at Fordham Law School and author of The Least Worst Place: Guantanamo’s First 100 Days.