Osama bin Laden's son-in-law and former al-Qaida spokesman Sulaiman Abu Ghaith is expected to appear in a New York courtroom Monday afternoon.
Abu Ghaith was captured by U.S. officials in February, and his arrest is considered important not just because he was so close to bin Laden, but also because the Obama administration has decided to try him in a federal court instead of using a military commission at Guantanamo Bay, Cuba.
On the surface, Abu Ghaith, 47, would appear to be a perfect candidate for a trial at Guantanamo. He is affiliated with al-Qaida, and he is a foreigner. He may be best known for his frequent appearances in al-Qaida propaganda videos, sitting alongside his father-in-law, calling for more violence against the West generally and the United States specifically.
But instead of sending Abu Ghaith to a military prison, the Obama administration decided to try him in a federal court. And that, analysts say, is significant.
"The Abu Ghaith case is important for a lot of reasons," says Karen Greenberg, the director of the Center on National Security at Fordham Law School. "And one of the things that is interesting is that this case turns away from Guantanamo.
"If we were going to bring foreign terror suspects who are involved with al-Qaida at allegedly high levels to military trial, he'd be an obvious person to expand the Guantanamo population."
But, as Greenberg sees it, the Obama administration decided against that because it wanted to send a message.
"They have clearly decided that foreign terrorists the U.S. captures will go where officials think they have the best case, and that's not necessarily at Guantanamo," she says.
Matthew Waxman, a professor at Columbia Law School, used to be a Pentagon adviser on detainee issues during the Bush administration. He says he thinks Congress' efforts to force the Obama administration's hand on detainees have backfired.
Congress passed legislation in 2011 that limited the president's ability to bring detainees to the U.S. for trial. Waxman says the move has almost guaranteed that the president would do anything to avoid sending new suspects to the military base.
"I think any president will be very, very reluctant to send detainees to Guantanamo because their flexibility is then substantially diminished," Waxman says. That's why, he says, the population at Guantanamo is likely to stay exactly where it is. (There are 166 detainees behind bars there now.)
That lack of flexibility is at least part of the reason why bin Laden's son-in-law has ended up in New York. While there has been a lot of focus on his case, over the past six months, with little fanfare, the Justice Department has introduced more than a dozen other foreign terrorism cases into the federal court system in New York. There has been a definite pattern to the charges the administration has filed against those defendants.
"Nearly all of these cases include either material support statutes or conspiracy charges," Greenberg says, "both of which are now not permitted at Guantanamo."
Material support and conspiracy are common terrorism charges in U.S. courts. But they have been problematic at Guantanamo because there is some question as to whether they are war crimes. The military commissions at Guantanamo are supposed to try defendants who have broken the laws of war.
Bin Laden's son-in-law is now balding and has slimmed down from his pudgy days in early al-Qaida videos. He is being charged with conspiring to kill Americans, and he has pleaded not guilty.
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Transcript
DAVID GREENE, HOST:
Osama bin Laden's son-in-law is expected to appear in a New York courtroom today. His case is considered important, and not just because he was so close to bin Laden. It's also significant because the Obama administration chose to try him in federal court, and not in a military commission at Guantanamo Bay, Cuba.
Here's NPR's Dina Temple-Raston.
DINA TEMPLE-RASTON, BYLINE: On the surface, Sulaiman Abu Ghaith, bin Laden's son-in-law, would appear to be the perfect candidate for a trial at Guantanamo Bay.
(SOUNDBITE OF VIDEO)
SULAIMAN ABU GHAITH: (Foreign language spoken)
TEMPLE-RASTON: That's him in a video that al-Qaida produced more than a decade ago. Over the years, he often co-starred with his father-in-law in al-Qaida's propaganda videos. His affiliation with the group, and connection with bin Laden, would have been enough to qualify him for a trial before a military commission. But it didn't turn out that way. Instead, the U.S. brought him to a federal courtroom in New York.
KAREN GREENBERG: The Abu Ghaith case is important for a lot of reasons.
TEMPLE-RASTON: Karen Greenberg is the director of the Center on National Security, at Fordham Law School.
GREENBERG: What's interesting about this case is the turn away from Guantanamo. Abu Ghaith is a person who would have gone to Guantanamo in any iteration of - if we were going to bring foreign terrorist suspects who are involved with al-Qaida at allegedly high levels; but who we, for some reason, are not going to bring in the federal court system. He's an obvious person, if you're going to expand the Guantanamo population.
TEMPLE-RASTON: But Greenberg says the Obama administration decided against that because it wanted to send a message. And that message is, foreign terrorists the U.S. captures will go where officials think they have the best case - not necessarily Guantanamo.
MATTHEW WAXMAN: This is Matthew Waxman, professor at Columbia Law School.
TEMPLE-RASTON: Waxman used to be a Pentagon adviser on detainee issues, during the Bush administration. Congress passed legislation in 2011 that limited the president's ability to bring detainees to the U.S. for trial. Waxman says that almost guaranteed that the president would do anything to avoid sending new suspects to Guantanamo.
WAXMAN: I think any president will be very, very reluctant to send detainees to Guantanamo because their flexibility is then substantially diminished.
TEMPLE-RASTON: That's at least part of the reason why bin Laden's son-in-law has ended up in New York. There's been a lot of focus on his case but over the past six months, with little fanfare, the Justice Department has introduced more than a dozen other foreign terrorism cases into the federal court system in New York. Karen Greenberg says there's been a pattern to the charges the administration has filed against these defendants.
GREENBERG: Nearly all of these cases include either material support statutes or conspiracy charges.
TEMPLE-RASTON: Both of which are not permitted at Guantanamo.
GREENBERG: Both of which are now, not permitted at Guantanamo.
TEMPLE-RASTON: Not permitted because material support and conspiracy, which are common terrorism charges in U.S. courts, have been problematic at Guantanamo. There's some question whether material support and conspiracy are war crimes. The military commissions at Guantanamo are supposed to be trying defendants who break the laws of war.
Bin Laden's son-in-law is 47 years old now. He's balding, and has slimmed down from his pudgy days in al-Qaida videos. He's being charged with conspiring to kill Americans, and he has pleaded not guilty.
Dina Temple-Raston, NPR News, New York. Transcript provided by NPR, Copyright NPR.
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