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Examining the Decision to Put Sulaiman Abu Ghaith on Trial

March 8, 2013 at 12:00 AM EST
Security was heavy at the courthouse where Sulaiman Abu Ghaith was charged with conspiring to kill Americans, a charge based on threatening statements and his close relationship with Osama bin Laden. Margaret Warner talks with Jess Bravin of the Wall Street Journal, and the New York Times' William Rashbaum, who was in the court.
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MARGARET WARNER: For more on today’s hearing and the decision to try Abu Ghaith in federal court, I’m joined by Jess Bravin, a reporter with The Wall Street Journal and author of the book “The Terror Courts,” and New York Times reporter William Rashbaum, who was in the courtroom today.

Welcome, gentlemen.

William Rashbaum, beginning with you, tell us what it was like in court today. How did it unfold?

WILLIAM RASHBAUM, The New York Times: Well, Mr. Abu Ghaith was brought into the courtroom in handcuffs. Security was pretty heavy.

There were probably about a dozen marshals in there. He was uncuffed, sat down. He looks quite different than he did when he appeared with Osama bin Laden. His beard is trimmed. It’s gray. His — most of his hair is gone. And the proceeding was brief. And they took care of some limited business. His lawyer entered a not-guilty plea for him.

And they set a conference date about a month out.

MARGARET WARNER: Did the defendant say anything? How did he act?

WILLIAM RASHBAUM: He was — appeared calm. He responded yes two or three times to questions put to him by the judge, who summarized the charges, explained his rights to him, appointed three lawyers to represent him.

MARGARET WARNER: And …

WILLIAM RASHBAUM: But he — he seemed calm.

MARGARET WARNER: … on what basis, from what you could tell from what unfolded in court, is he being charged with conspiracy to kill Americans? I mean, he’s not alleged, or is he alleged to have taken part in any specific attacks?

WILLIAM RASHBAUM: No, he’s not.

The indictment is relatively brief, and in large measure focuses on statements that he made. He essentially made threatening statements about the United States, said that there would be additional attacks. I think the indictment cites statements he made on Sept. 12th and some subsequent statements he made as well.

MARGARET WARNER: Jess Bravin, you cover the Supreme Court. You have written a lot about courts. How would you explain the basis on which they’re finding conspiracy here, or they’re alleging conspiracy?

JESS BRAVIN, The Wall Street Journal: Well, they’re alleging conspiracies because he was very close to Osama bin Laden.

Osama bin Laden was the organizer, the patron of the 9/11 attacks. He’s with bin Laden when those attacks take place. He’s making statements for bin Laden afterwards. And conspiracy is a way that the government that the government can impute to one defendant the offenses of another. So, this crime basically says he was in on the plot and he is therefore responsible for many of the outcomes, even if he didn’t pull the trigger himself.

MARGARET WARNER: Now, this is the same federal courthouse that originally the Justice Department wanted to try Khalid Sheikh Mohammed in, but backed down.

What you can tell us about why the Justice Department, nonetheless, despite the outcry last time, has gone forward to try Abu Ghaith here?

JESS BRAVIN: Well, I think there are a number of reasons.

One is practical. They sort of learned their lesson that — a lesson they might have picked up from the Bush administration, which was it’s a lot easier to just do it and then announce it, instead of announce it in advance, and wait for the political blowback. During the Bush administration, they would take controversial actions and then announce them.

That is what has happened here. They brought him to New York and then they said, he’s in New York and we are going to bring him to his arraignment tomorrow. So that is one reason. Another reason, though, is that there would be some problems, at least potential problems, if he was sent to a military court at Guantanamo or anywhere.

Military commissions have jurisdiction over crimes of war and military offenses. And there are a couple things here that lawyers may have thought would have been problematic, one even being, is he a combatant if he’s been on the run for 10 years?

MARGARET WARNER: William Rashbaum, back to you.

The prosecutor, I gather, had something to say about what Mr. Abu Ghaith has told them, has told investigators, that he has given quite an extensive statement. What you can tell us about that?

WILLIAM RASHBAUM: Well, the — one of the prosecutors said that he had talked extensively after he was arrested. We understand that he spoke both before he had a lawyer. Then he requested a lawyer and continued to make statements after he was represented by a lawyer.

The statements are detailed in a 22-page document that the prosecutor referred to when he talked about the information, evidence that was going to be turned over to the defense lawyers.

MARGARET WARNER: And, Jess, back to you.

You heard — well, Senate Majority Leader Mitch McConnell said today, other Republicans, that the government was forfeiting a great opportunity to really interrogate him at length for intelligence information. What’s the government’s response for that? Are they saying, well, he’s already talked; he’s given his 22 pages worth of info?

JESS BRAVIN: They certainly pointed that out.

And also, though, there are questions about how — how deeply the government could continue to interrogate him anyway. If they took him to Guantanamo Bay, we wouldn’t be lawyerless there. He does have a right to a lawyer under a Supreme Court decision issued in 2004. So there would immediately be some contest over whether or not he could even be held there and whether or not the government could make him talk.

And President Obama has forsworn the coercive interrogation methods that the last interrogation used, so the chances of all the kinds of enhanced or coercive things, that might be lessened.

MARGARET WARNER: The White House deputy spokesman said today that the civilian courts are, I think it was, efficient way for us to deliver justice, as he put it, to terrorists.

What is the record on that between military tribunals and civilian courts?

JESS BRAVIN: Well, there have been since President Bush first authorized the use of military commissions seven convictions. Most of those were plea bargains. Two of them were recently vacated by the D.C. Circuit Court of Appeals. So there are now five.

It has been a very slow process and it’s been encumbered by a lot of internal disarray and political intervention and what has gone on in the Office of Military Commissions. At the same time, the Justice Department has racked up a fairly consistent record of getting convictions. They have had dozens and dozens of terror suspects convicted in the same period.

And the advantage, I guess the advocates would say, of using federal court is that there won’t be any battles about the legitimacy of the courthouse itself. At Guantanamo Bay, almost all the proceedings are heavily affected by challenges to whether or not the trial itself is a lawful exercise of government power.

MARGARET WARNER: Well, Jess Bravin of The Wall Street Journal, William Rashbaum of The New York Times, thank you both.