Last week, Osama bin Laden’s son-in-law, Sulaiman Abu Ghaith, was convicted in a New York City federal court on conspiring to kill Americans and other charges related to terrorism. While the outcome is a just result, given the undisputed fact that Abu Ghaith is an enemy of the State and we are in a state of war, the choice of venue raises questions for those of us who feel that the domestic criminal courtroom isn’t the place to determine the fate of an al-Qa’eda enemy combatant.
In the New York Times’ coverage of the conviction, Attorney General Eric Holder praised the outcome, noting, “It was appropriate that this defendant, who publicly rejoiced over the attacks on the World Trade Center, faced trial in the shadow of where those buildings once stood.”
While there’s certainly symbolic value in holding a trial near Ground Zero, I wouldn’t call the Obama dream of using the federal court system to prosecute enemy combatants to be “appropriate.” As satisfying as this verdict might be for Americans who want justice served for all responsible in the 9/11 attacks, it should be troubling to Americans that the Obama Administration insists on using federal courts to do what military commissions should be doing. It is confusing.
Back in 2002, for Jurist, I wrote about the legal provisions that make military commissions not only Constitutional, but more appropriate for prisoners of war than the courtroom. The Obama Administration, bowing to political correctness and pressure from those who are conflating the military commission vs. court debate with the controversy over keeping detainees at Guantanamo Bay, seem to believe that these public trials are creating greater transparency and a better track record on this issue, compared to the George W. Bush Administration.
Yet the Obama Administration fails to factor in that we’re dealing with enemy combatants whose public convictions serve a far great propaganda value for terrorist organizations than military commissions do. Earlier this month, I was interviewed by a number of Fox News Radio affiliates on Inspire Magazine’s recent call for aspiring jihadists in the U.S. and other Western countries to make car bombs — complete with instructions on which materials to use and suggestions on which public targets to strike.
It’s a chilling reminder that al-Qa’eda — using its own publication to specifically prescribe individuals to carry out terrorist attacks — won’t rest in its fight, and won’t be deterred by its members being convicted in domestic criminal court. It should also be a reminder that the War on Terror is, despite being an unconventional war, still a war, and enemy combatants should be treated as such until we can declare victory. Federal criminal courts are appropriate for those inspired by the virus of radical Islam, but not for the special class deemed enemy combatants.