Osama bin Laden's son-in-law and former al-Qaida spokesman Sulaiman Abu Ghaith is expected to appear in a New York courtroom Monday afternoon.
Abu Ghaith was captured by U.S. officials in February, and his arrest is considered important not just because he was so close to bin Laden, but also because the Obama administration has decided to try him in a federal court instead of using a military commission at Guantanamo Bay, Cuba.
On the surface, Abu Ghaith, 47, would appear to be a perfect candidate for a trial at Guantanamo. He is affiliated with al-Qaida, and he is a foreigner. He may be best known for his frequent appearances in al-Qaida propaganda videos, sitting alongside his father-in-law, calling for more violence against the West generally and the United States specifically.
But instead of sending Abu Ghaith to a military prison, the Obama administration decided to try him in a federal court. And that, analysts say, is significant.
"The Abu Ghaith case is important for a lot of reasons," says Karen Greenberg, the director of the Center on National Security at Fordham Law School. "And one of the things that is interesting is that this case turns away from Guantanamo.
"If we were going to bring foreign terror suspects who are involved with al-Qaida at allegedly high levels to military trial, he'd be an obvious person to expand the Guantanamo population."
But, as Greenberg sees it, the Obama administration decided against that because it wanted to send a message.
"They have clearly decided that foreign terrorists the U.S. captures will go where officials think they have the best case, and that's not necessarily at Guantanamo," she says.
Matthew Waxman, a professor at Columbia Law School, used to be a Pentagon adviser on detainee issues during the Bush administration. He says he thinks Congress' efforts to force the Obama administration's hand on detainees have backfired.
Congress passed legislation in 2011 that limited the president's ability to bring detainees to the U.S. for trial. Waxman says the move has almost guaranteed that the president would do anything to avoid sending new suspects to the military base.
"I think any president will be very, very reluctant to send detainees to Guantanamo because their flexibility is then substantially diminished," Waxman says. That's why, he says, the population at Guantanamo is likely to stay exactly where it is. (There are 166 detainees behind bars there now.)
That lack of flexibility is at least part of the reason why bin Laden's son-in-law has ended up in New York. While there has been a lot of focus on his case, over the past six months, with little fanfare, the Justice Department has introduced more than a dozen other foreign terrorism cases into the federal court system in New York. There has been a definite pattern to the charges the administration has filed against those defendants.
"Nearly all of these cases include either material support statutes or conspiracy charges," Greenberg says, "both of which are now not permitted at Guantanamo."
Material support and conspiracy are common terrorism charges in U.S. courts. But they have been problematic at Guantanamo because there is some question as to whether they are war crimes. The military commissions at Guantanamo are supposed to try defendants who have broken the laws of war.
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