Terror Trials Test Prosecutors

Karen Greenberg in The Wall Street Journal, March 02, 2014

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NEW YORK—The trial of Osama bin Laden son-in-law Sulaiman Abu Ghaith is set to open Monday in Manhattan federal court, kicking off what looks to be one of the biggest years for terrorism prosecutors since the Sept. 11, 2001, attacks.

The trial of the alleged al Qaeda spokesman—who appeared alongside bin Laden in a video the day after the attacks on the World Trade Center and the Pentagon—is the first of three marquee terrorism cases slated for the federal courthouse in coming months.

The others include prosecutions of Abu Anas al-Libi, grabbed by U.S. forces in Libya last year, for allegedly planning the 1998 bombings of U.S. embassies in Kenya and Tanzania that killed 224 people, and Abu Hamza al-Masri, the firebrand preacher from London who stands accused of plotting to open a terrorist training camp in Oregon and kidnapping Americans in Yemen. All three men have pleaded not guilty.

The trials will refocus attention on terrorism as the U.S. winds down military operations in Afghanistan and fall's elections loom. They also are a major test for prosecutors in the U.S. attorney's office in Manhattan.

Speedy trials that result in convictions would further the case for using civilian courts rather than the military commissions set up to try detainees at Guantanamo Bay, Cuba. The U.S. attorney's office was slated to try alleged 9/11 mastermind Khalid Sheikh Mohammed in 2009, but protests by New York officials and many in Congress forced the Obama administration to reverse course. He remains in Guantanamo Bay awaiting a trial by a military commission.

Prosecutors face a number of hurdles in the cases. Mr. Libi is set to be tried in November along with co-defendants Khaled Fawwaz and Adel Abdel Bary, who also pleaded not guilty, for their alleged roles planning the embassy bombings in Africa.

U.S. commandos nabbed Mr. Libi, 49 years old, from his home outside Tripoli in a dawn raid last October. They whisked him to a U.S. warship and spent a week interrogating him before handing him off to federal authorities in New York.

The shipboard interrogations took place before Mr. Libi was read his Miranda rights or granted access to a lawyer. Only later did a "clean team" from the Federal Bureau of Investigation question him, abiding by legal rules and procedures customarily afforded a suspect after arrest.

Such "two step interrogations" are relatively new and haven't been fully litigated in terrorism cases, legal experts said. The admissibility of potentially significant evidence could hang in the balance depending on how the court rules, they said.

Though there have been numerous successful terrorism trials in U.S. courts in recent years, very few 9/11-era al Qaeda suspects captured abroad have been brought to trial. Those cases are more complicated because of potential restraints on witnesses and admissible evidence.

In 2010, Manhattan prosecutors brought alleged al Qaeda operative Ahmed Khalfan Ghailani to trial, the only Guantanamo Bay inmate to face trial in the U.S. The judge ruled against allowing a critical witness for the prosecution to testify because the government acknowledged it had learned of the witness during interrogations of Mr. Ghailani at a Central Intelligence Agency-run detention center overseas.

Mr. Ghailani was convicted by a federal jury in New York of one count of conspiracy in the 1998 embassy bombings but was acquitted of 281 other counts, including every count of murder, though he was still sentenced to life in prison.

"There is so much trepidation after the Ghailani trial that maybe the system can't handle these cases," said Karen Greenberg, director of the Center on National Security at Fordham Law School in New York.

The case of Mr. Abu Ghaith, the bin Laden son-in-law, is the one most closely linked to 9/11. He gained notoriety when he appeared in the Sept. 12, 2001, video sitting alongside bin Laden and bin Laden's deputy, Ayman Zawahiri. In the months that followed, Mr. Abu Ghaith became a leading spokesman and recruiter for al Qaeda, according to federal prosecutors. The charges against Mr. Abu Ghaith, 48, hinge largely on statements he made, not on terrorist actions or plots, and don't accuse him of having any role in plotting 9/11 or subsequent attacks. "It raises the issue of where and to what extent do words constitute criminal activity," said Mr. Abu Ghaith's lawyer, Stanley L. Cohen. U.S. district courts have ruled that speech can cross over into material support, but it is a legal gray area and potentially a more difficult charge to make stick.

Defense attorneys for Mr. Abu Ghaith have said they want to call on Mr. Mohammed to testify remotely from Guantanamo Bay, which would be a first.

Mr. al-Masri, the 55-year-old preacher whose real name is Mustafa Kamel Mustafa, is accused of conspiring in 1998 to kidnap Americans in Yemen, of taking part in an attempt to set up a terrorist training camp in Bly, Ore., in 1999 and 2000, and of providing material support to al Qaeda. Prosecutors successfully secured the conviction of Mr. al-Masri's co-conspirator, Oussama Kassir, in 2009.

Mr. al-Masri was convicted of criminal charges in the U.K. in 2006 of using his sermons at a London mosque to incite murder and racial hatred. He had been serving a seven-year sentence in a U.K. prison before he was brought to the U.S. with four other terrorism suspects in October 2012. His trial in Manhattan is set for April.

In the decade after 9/11, the Justice Department brought about 300 terrorism cases and boasted a conviction rate of 87%, roughly the same rate for all federal indictments, according to a 2011 study by the Center on Law and Security at New York University. But critics of civil prosecutions aren't appeased.

"These are people engaged, not in civilian crimes, but in terrorist crimes in a war against us and to be giving them constitutional rights, to be making evidence available to them, it's to me something that they're not entitled to," said Rep. Peter King (R., N.Y.).

Much of the controversy that surrounded past terrorism trials in Manhattan has faded. New York officials have dismissed security concerns. And military commissions face delays; the military trial of alleged 9/11 mastermind Mr. Mohammed still hasn't begun.

It was one of numerous hang-ups that have dogged the commissions since their inception. A federal appeals court in Washington threw out two military convictions, most recently in the case of Ali Hamza al-Bahlul, accused of making propaganda videos for al Qaeda. That decision is being appealed.

Such uncertainty over the commissions prompted U.S. Attorney General Eric Holder to come out last November and say he regretted the decision to pull those cases out of federal courts.