Trial of Bin Laden’s son-in-law begins

New York, United States – Opening statements begin March 5 in a New York City courtroom in the trial of Bin Laden’s son-in-law, Sulaiman Abu Ghaith, on charges of conspiring to kill Americans while he was a top al-Qaeda figure in the months prior to the attacks on September 11, 2001.

Abu Ghaith is the highest-ranking al-Qaeda member to stand trial on US soil rather than face a military commission at the US prison at Guantanamo Bay. The trial will be a landmark test of the Obama Administration’s policy of bringing public evidence against terror suspects in the US federal court system. It is a reversal of the Bush-era policy of subjecting terror suspects to trial before military panels at Guantanamo, a shift that has drawn criticism from Republicans but praise from human rights advocates.

“What is important about this trial is we get to see the evidence the government has about Abu Ghaith’s ties to September 11,” said Daphne Eviatar, senior counsel for law and security at Human Rights First in New York, a group that has been critical of the US government’s failure to publicly produce evidence against detainees held at Guantanamo. “It’s an open question what the government’s evidence is going to be.”

Captured a year ago in Jordan under circumstances that human rights advocates decry, Abu Ghaith was al-Qaeda’s official spokesman and is married to Bin Laden’s daughter Fatima. He is alleged to have been one of Bin Laden’s key strategic advisers and stands accused of playing a role in organising al-Qaeda recruits in Afghanistan prior to the September 11 attacks.

Bush officials had asserted that protections for prisoners of war under the Geneva Conventions did not apply to enemy combatants at Guantanamo because they did not represent nation-states in battle. Common law and constitutional legal protections such as habeas corpus – the right to be presented before a judge – and the right to an attorney, did not apply.

Politicalisation

Senator Lindsey Graham, a leading Republican, spoke for many in his party when he criticised the Obama administration’s decision to try Abu Ghaith in New York. “A foreign member of al-Qaeda should never be treated like a common criminal and should never hear the words, ‘You have the right to remain silent,'” Graham said.

Abu Ghaith appeared on a video tape with Bin Laden, the founding leader of al-Qaeda, and Bin Laden’s chief deputy Ayman Al Zawahiri shortly after the September 11 attacks, warning “a great army is gathering against you” and calling on “the nation of Islam” to battle “the Jews, the Christians and the Americans”, according to the US indictment.

Delivered by courier to Al Jazeera Arabic television’s Kabul office as US forces began bombing targets in Afghanistan, it was broadcast worldwide and replayed for days by CNN, ABC and every other US network.

US officials condemned the tape as propaganda. The station was demolished by a 500-pound US bomb that the Pentagon said was dropped in error.

In December, prosecutors added two new charges against Abu Ghaith, providing material support and resources for terrorists and conspiracy to provide support and resources. Prosecutors cited a 2002 speech in which they allege he spoke of “launching terrorist attacks on America”.

Abu Ghaith was detained by authorities in Turkey last year. Despite US demands for his extradition, Turkey deported him to Kuwait but his plane stopped in Amman, Jordan, and he was arrested, according to news reports and court documents.

Among the legal issues likely to come up in Abu Ghaith’s trial is the apparent two-step interrogation process the US has used with terrorism suspects, said Ramzi Kassem, a professor of law at the City University of New York.

“It is now clear that the Obama Administration reserves the right to capture people anywhere on the planet, for secret reasons, to sequester and interrogate them at sea or other undisclosed locations, and to bring them to court when officials believe a conviction is all but assured,” Kassem told Al Jazeera.

Allegations of mistreatment and abuse

In pre-trial filings, the defence had claimed Abu Ghaith was mistreated and abused by FBI agents who interrogated him on the flight to the US from Jordan. The US government argues that, because he was then handed over to a “clean team” of FBI interrogators who read him his Miranda rights, any statements they took are free from the taint of torture and can be used against Abu Ghaith in court.

Abu Ghaith’s defence team is led by Stanley Cohen, a New York criminal defence lawyer who has filed a series of motions to delay the trial and challenge the prosecution’s evidence.

US District Judge Lewis A Kaplan thus far has rebuffed Cohen’s efforts to undercut the prosecution, including ruling that prosecutors may use a 22-page statement Abu Ghaith gave the FBI after his arrest. 

A key issue in the trial will be the question of what Abu Ghaith’s role was within al-Qaeda. The defence’s strategy appears aimed at showing Abu Ghaith had no actual participation in the operational planning of the September 11 attacks. The conspiracy charge is sweeping and accuses Abu Ghaith of conspiring to kill Americans without specifically tying him to the September 11 plot, according to court papers.

Kaplan allowed Abu Ghaith’s attorneys to question Khalid Sheikh Mohammed, the alleged mastermind of the September 11 plot who with four others is still being held under military control at Guantanamo. It’s not clear if Mohammed would actually be allowed to testify in the trial or whether the defence may only use his written answers to their questions.

Mohammed was captured in Pakistan by the CIA in 2003 and held at secret “black sites” in Poland and Romania, where the CIA has said he was water-boarded. He was transferred to Guantanamo in 2006 when the Bush Administration and Congress first established a military commission to begin trials of detainees.

In 2010, the Obama Administration dropped military charges against Mohammed and four co-defendants in the September 11 plot and announced plans to transfer them to New York for trial in a federal court. Congress prohibited the move and Obama reversed course, reactivating the military trials at Guantanamo. Those cases remain pending.

A hunger strike by Guantanamo prisoners last year brought renewed attention in the US to the legal limbo of prisoners at the camp.

There are currently 155 detainees at Guantanamo, of which 76 have been approved for transfer home, or to third countries, but who remain imprisoned according to Human Rights Watch.

Of the remaining individuals there are 48 being held indefinitely without trial, a number of them because they were tortured and as a result, under Obama’s revised policy on prisoners in Guantanamo, cannot be prosecuted.

Only 36 have been referred to military trials.

Abu Ghaith’s trial is expected to take about three weeks. If convicted, he faces a maximum sentence of life in prison.