Federal court for terror suspects is the American way

What’s the best way to bring terrorists to justice? The U.S. government’s handling of Ahmed Abu Khattala is shaping up to be a model.

Khattala allegedly played a lead role in the 2012 attack on the U.S. consulate in Benghazi, Libya that killed four Americans. In June, U.S military commandos and FBI agents captured him in a pinpoint raid without firing a shot and swiftly brought him to a U.S. Navy warship for interrogation. After being advised of his Miranda rights, Khattala reportedly provided valuable intelligence. He was arraigned this week in a U.S. federal court in Washington DC. Though there remain important questions about whether the delay in transferring him to a federal court was reasonable, this framework is the way to detain and prosecute terrorism suspects consistent with both U.S. national security and American ideals.

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Some politicians aren’t satisfied, however. “Ahmed Abu Khattala should be held at Guantanamo as a potential enemy combatant,” tweeted Sen. Lindsey Graham (R-S.C.) mere minutes after his capture. Likewise, Sen. John McCain (R-Ariz.) told reporters that “Guantanamo [is] where we put terrorists, where we apprehend them.”  

 A federal courtroom—and not a military commission at Gitmo—is, in fact, the appropriate venue to try him. For one thing, U.S. federal courts are more effective at convicting terrorists. Since 9/11, the U.S. government has used federal courts to secure more than 500 convictions in terrorism-related cases, including 67 involving people captured overseas. By contrast, military commissions have produced only 8 convictions since 9/11, and two of those were recently overturned on appeal. To try terrorist suspects at Gitmo is to choose a rickety makeshift vehicle when a rock-solid, time-tested one is available.

In addition, the U.S. civilian justice system has common sense rules that ensure public safety. For example, Wednesday’s pre-trial detention hearing established under the Bail Reform Act that Khattala would remain in custody until the trial.

It’s important to recognize that the United States is not a party to an armed conflict in Libya. Our country was the target of a vicious terrorist attack whose perpetrators should be brought to justice. However, because there was no armed conflict, the perpetrators are not enemy combatants entitled to the protections of the Geneva Convention; they are criminals. Declaring people like Khattala to be combatants can actually have the unintended effect of legitimizing their actions. In general, it is not a criminal act for a combatant to kill another combatant in wartime. However since the U.S. is not in an armed conflict in Libya, killing any U.S. personnel, be they a diplomat, security contractor, or even a soldier, is a criminal act.

The United States is a nation of laws. Under our system, criminal suspects are granted certain rights. Khattala, despite allegedly committing a terrorist act, will benefit from the protections of U.S. domestic law; however he is also subject to the severe penalties associated with terrorism. This is significant when one considers that combatants are typically released at the end of conflict.

Khattala, if convicted, will spend many years behind bars in a federal prison. So while Graham is correct that “we should have some quality time with this guy – weeks and months” to interrogate him, this isn’t incompatible with prosecuting him in federal court. On the contrary, the threat of a lengthy prison sentence can be used as leverage to garner increased cooperation from Khattala.

By prosecuting terrorist suspects in federal courts, the U.S. government both stays true to its ideals and increases the chances of convicting them. A clearer win-win is hard to find.

Quigley is a senior fellow for National Security at Human Rights First, and a member of the Defense Council at the Truman National Security Project. He is a naval intelligence officer and has served two combat tours in Iraq, including one with Joint Special Operations Command. His opinions are his own and are not endorsed by the U.S. Navy or the Department of Defense.