Trying terrorists

President Obama made closing the prison at Guantanamo Bay a campaign talking point and a policy initiative since he was elected president. Now, six years later, Guantanamo is still open. While it does not appear any of the detainees will receive a trial in the near future, maintaining the legal-limbo status quo, the United States has two more opportunities to prove that the justice system can handle high profile terrorism trials in civilian courts: Dzhokhar Tsarnaev, the Boston Marathon bombings suspect, and Ahmed Abu Khattala, one of the alleged ringleaders of the terrorist group accused of killing four Americans in the attacks at the U.S. Special Mission Benghazi compound on Sept. 11, 2012.

One of the major legal fights over the detainees in Guantanamo is how they will be tried. Some have suggested military tribunals, which have so far proven to be slow and ineffective. On the other hand, some scholars have suggested trying these terrorists in civilian courts on U.S. soil. However, Congress has been highly skeptical about transferring detainees to U.S. soil. Pundits such as Marc Thiessen, a fellow at the American Enterprise Institute, stated at an event hosted by the Council on Foreign Relations that trying someone such as 9/11 mastermind Khalid Sheikh Mohammed in New York in civilian trials would be "a propaganda tool," for such terrorists. "It's an opportunity for [Khalid Sheikh Mohammed] to stand up on his soap box, and rally jihadists from around the world ... to preach the jihad in an American courtroom, in front of the international media and use that trial — as a recruiting tool," said Thiessen.

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Those who disagree with Thiessen cite the inefficiency of military commissions or tribunals and cite the high success rate of civilian trials of terror and terror-related suspects. According to one study by New York University School of Law, 523 out of 593 suspects of terrorism or related charges were convicted between 2001 and 2009. According to Lyle Denniston, a longtime Supreme Court reporter, from a constitutional standpoint, "If the civilian courts were open and functioning during wartime, trials of civilians charged with crimes of war should be tried in those courts, not in military tribunals." Attorney General Eric Holder stated after the conviction of Osama bin Laden's son-in-law in a New York City court that "The verdict has proven that proceedings such as this can safely occur in the city." However, a recent profile of Holder recounted his intent to try Khalid Sheikh Mohammed in New York City — even garnering the support of then-Mayor Michael Bloomberg (I) — though the failed Times Square bombing attempt raised questions concerning a high-profile terrorism trial in Manhattan.

The Boston Marathon bombings were the first successful terrorist attacks on American soil since 9/11, which is why the government is taking a hard line against Tsarnaev. The U.S. government has sought the death penalty for Tsarnaev, citing "substantial planning and premeditation," "betrayal of the United States," "encouragement of others to commit acts of violence and terrorism," and "lack of remorse" for his actions, to name a few. Despite Tsarnaev's young age of 20, the government asserts that he became self-radicalized with propaganda published by al Qaeda and even urged others to wage jihad against the government which, in Tsarnaev's words, "is killing our innocent civilians."

The capture of Abu Khattala has been praised as a victory for U.S. justice and triggered comments from the president such as: "It's important for us to send a message to the world that when Americans are attacked, no matter how long it takes, we will find those responsible and we will bring them to justice." The issue surrounding Abu Khattala is slightly more complicated than Tsarnaev's, as he was a foreign national captured by U.S. Armed Forces and held on a ship. (Additionally, his actual involvement in the attacks in Benghazi are suspect. On the issue of his status as an enemy combatant, "he lacks the required nexus to al Qaeda or an associated force to trigger ... detention" under the law).

Despite semantic debates concerning Tsarnaev and Khattala’s classification as "war criminals," the United States must still demonstrate that it is up to the challenge of continuing to try high-profile terrorists in the American justice system. This is a very important nexus in the War on Terror. Issues of concern such as the delayed reading of Miranda rights under the "public safety" exception and the interrogation and transport aboard naval vessels must be taken with the utmost care of the law so as not to jeopardize this or future opportunities (the judge in the Abu Khattala case has granted additional time in between the next status hearing as to allow enough time to properly and thoroughly review all evidence). With the conviction of bin Laden's son-in-law, and an Egyptian cleric soon after, the administration must not squander these new opportunities.

Pomerleau is a freelance journalist based in Washington covering politics and policy.

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