When Osama bin Laden's son-in-law was arrested last year, Obama critics like Senator Mitch McConnell (R- Ky.) were outraged. "He is an enemy combatant and should be held in military custody," McConnell said last February. Senators Lindsey Graham (R- S.C.) and Kelly Ayotte (R-N.H.) similarly chimed in that the Kuwaiti imam, Sulaiman Abu Ghaith, should have been sent to Guantanamo Bay in Cuba, not to New York City for trial in a civilian federal court.
Perhaps those lawmakers aren't very familiar with American conspiracy law.
Just over a year after his arrest, Sulaiman Abu Ghaith is on trial in downtown Manhattan, charged with providing material support to terrorists and conspiracy to kill Americans. Although the government claims only that he made a handful of speeches for al Qaeda between May 2001 and 2002, it seeks to hold him responsible for the deaths of all Americans al Qaeda orchestrated between 1998 and 2013.
At a conference with the lawyers on Thursday after the defense rested its case, Judge Lewis Kaplan, who's presided over this trial with a heavy hand since it started earlier this month, confirmed that that's exactly how he will charge the jury on Monday.
"It's black-letter law that he's responsible for anything done in furtherance of the conspiracy," said Judge Kaplan, responding to an attempt by Abu Ghaith's lawyer, Zoe Dolan, to amend the proposed charge out of concern that her client could be held responsible for al Qaeda's September 11, 2001 terrorist attacks in the United States, its bombings of the U.S. embassies in East Africa in 1998, and the group's 2000 attack on the U.S.S. Cole, a U.S. Navy ship docked in a port of Yemen. The evidence at trial suggests Abu Ghaith didn't make his first taped speech for al Qaeda until the day after the 9/11 attacks.
On Thursday, Judge Kaplan summarily rejected the defense lawyer's objections. Under U.S. law, he explained, even if the jury decides Abu Ghaith only joined the al Qaeda conspiracy on September 12, "the defendant still will be held responsible for any acts that happened before he joined the conspiracy."
Although I'm a lawyer and I've studied criminal justice, the breadth of U.S. conspiracy law still astonishes me every time I hear about it. Its effect, in this case, is to make a Kuwaiti preacher who made a handful of speeches for al Qaeda over a few short months in Afghanistan personally responsible for the deaths of thousands of people killed long before he ever came on the scene. There's no question that if the jury finds he joined the al Qaeda conspiracy, he'll spend the rest of his life in prison.
Senator McConnell and his colleagues (and constituents) may not realize it, but there's nothing like that in the Guantanamo military commissions. Although Congress tried to give the commissions jurisdiction over conspiracies when it passed the Military Commissions Act in 2006, the appeals courts have so far held that portion of the law does not apply to acts committed before 2006. That's because "conspiracy" itself was never before considered a war crime, and military commissions exist specifically to try war crimes. "Material support" for terrorism -- the other charge against Abu Ghaith -- is not a war crime triable by a military commission, either.
The result is that the so-called "enemy combatants" that the Bush administration sent to Guantanamo and charged in military commissions have received sentences as low as five months more than time served. Of the eight men convicted, only three remain at Guantanamo. Two of the convictions -- including one for conspiracy -- have been overturned on appeal.
There are lots of reasons one might be concerned about the severity of U.S. terrorism law. After all, it can land a defendant convicted of loaning his cell phone to an al Qaeda operative and storing some socks in his apartment in solitary confinement in a U.S. Supermax prison for decades.
But I wouldn't expect criticism of this aspect of the American criminal justice system from those law-and-order lawmakers clamoring for the United States to be tougher on terrorism. As the trial of Osama bin Laden's son-in-law is demonstrating, if that's your goal, the U.S. federal courts -- not the Guantanamo military commissions -- are undoubtedly the way to go.
Lawyers are expected to deliver their closing arguments in the case of Sulaiman Abu Ghaith on Monday.