It's become almost routine -- the prosecutions of alleged al Qaeda operatives and spokespeople, men picked up halfway across the world brought to downtown Manhattan, where they're tried for acts they're alleged to have committed years ago in cahoots with Osama bin Laden. After a complex but orderly federal trial, they're convicted and sentenced to long stints in prison -- usually the rest of their lives.
On Thursday, a leading federal prosecutor who's brought many of those successful terrorism prosecutions once again made a compelling argument for why a man who, among other things, allegedly facilitated Osama bin Laden's interviews with international media in which the al Qaeda founder publicly launched his campaign for violent jihad against the United States, deserves to be convicted and remain behind bars. Under federal law, helping al Qaeda in this way would make the defendant, Khalid al Fawwaz, a co-conspirator of the group and its goals. And that would make him responsible for all of the murderous acts it's committed. It's a very broad law.
Some members of Congress have vehemently opposed trying suspected al Qaeda terrorists in federal courts, claiming they should be sent to Guantanamo Bay for trial there instead. But it's worth noting that this broad conspiracy law, and the crime of providing "material support" for a terrorist organization, as a practical matter aren't available for a crime like this in the Guantanamo military commissions, where the "material support" charges have been vacated and the conspiracy charge remains subject to hot legal dispute. Already three Guantanamo military commission cases brought based on such charges have been overturned.
That's not going to be a problem in the al Fawwaz case that started up today, because the federal courts have repeatedly affirmed convictions based on conspiracy charges, in many cases for al Qaeda assistants alleged to be operating at much lower levels in the organization. In this case, the government claims al Fawwaz was actually a leader of al Qaeda in the 1990s who participated in, supported and disseminated its declaration of war, led one of its original terror training camps and "participated in its conspiracy to kill Americans," including the 1998 bombings of two U.S. Embassies in East Africa.
Of course, that's not the defense team's view. In the downtown Manhattan courtroom today, defense attorney Bobbi Sternheim argued that her 52-year-old Saudi Arabian client knew Osama bin Laden only because he was a fellow Saudi dissident who wanted to reform the ways of the Saudi monarchy. Because dissidents were often imprisoned in Saudi Arabia, al Fawwaz moved to London and with other Saudis, including bin Laden, founded what Sternheim described as a peaceful group dedicated to Saudi government reform, not to any sort of violent Jihad against the United States. Her client, she insists, did not share bin Laden's other views: "he is not violent," she said of Fawwaz, "he is quite the opposite: calm, serene, peaceful and pious." Although Fawwaz acknowledges he was approached by reporters seeking interviews with bin Laden, Sternheim claimed he never shared bin Laden's views and never sought journalists out to publicize them.
Whatever the truth of the matter, watching the opening arguments today left me confident that the jury, which listened intently, will hear plenty of evidence from both sides and will be well-positioned to reach a fair verdict. (The court has also taken pains to keep the jury safe: their names are not being released and they're all secretly brought to and from court by federal marshals each day.) Among the evidence the government described were recordings of the defendant's telephone conversations with al Qaeda military leader Mohammed Atef, copies of declarations of war against the United States signed by bin Laden and found in al Fawwaz's home, a list of al Qaeda members that included his name and the testimony of several cooperating witnesses -- al Qaeda terrorists who have pled guilty and agreed to testify for the government against al Fawwaz.
That's the kind of evidence we've seen presented in many of the previous al Qaeda terrorism cases here in New York, and it's very hard to refute. The FBI has been hunting al Qaeda for decades, and has amassed a treasure trove of evidence over the years that's helped it win every one of these cases against alleged al Qaeda operatives. Judge Lewis Kaplan, who's hearing the al Fawwaz trial, has presided over many of those previous cases, so knows well all the relevant laws and procedures.
That's the opposite of the situation we have at the trials in Guantanamo Bay. There, military prosecutors brand new to terrorism cases struggle to present admissible evidence before a military judge who's never before presided over a contested international terrorism trial. Defense lawyers, not surprisingly, throw up every road block imaginable, most of which have been created by the government itself by repeatedly spying on the defense teams or otherwise compromising the attorney-client confidentiality that's required for them to legitimately present their cases. The growing string of mishaps and overreaches by the government in the military commission cases has become a long rope that's strangled the cases' progress. The result is that 13 years after the terrorist attacks of September 11, 2001, the case of the five alleged co-conspirators of that heinous crime is nowhere near ready for trial.
To be sure, the al Fawwaz case now on trial in New York is dealing with crimes committed by al Qaeda even before the 9/11 attacks. But that's not because of any flaw in the U.S. federal trial system. It's because al Fawwaz, who was arrested in London in 1998 at the request of U.S. authorities, fought his extradition to the United States for trial on the grounds that the harsh prison conditions for terrorists in U.S. prisons are inhumane. He and four other terrorism defendants lost their final appeals in 2012.
The trial of al Fawwaz is expected to take several weeks.
This post has been corrected. The prosecution claims to have recordings of conversations between al Fawwaz and Muhammad Atef, not Mohamed Atta.