“PROSECUTIONS”IN GUANTANAMO HAVE LANGUISHED
MILITARY TRIBUNALS AN ABYSMAL FAILURE
Suleiman Abu Ghaith (r) with his late father-in-law, Osama Bin Laden
during happier times
(Saturday March 9, 2013, Manhattan Federal Court, NY, NY) As if we needed any reminders that we are still engaged in military operations 12 years after we first inserted Special Operations troops and CIA Operatives into Afghanistan, the resurgent Taliban claimed responsibility for two bombings today. These suicide bombings in Kabul and in the eastern province of Khost killed 19 Afghanis including eight children. A Taliban statement indicated the explosions were meant to “send a message” to the new US Secretary of Defense, Chuck Hagel, who is making his first trip to that country since assuming command at the Pentagon just weeks ago. Coincidentally or perhaps not, this most recent Taliban activity occurred just a day after a former Al Qaeda spokesman and one of the late Osama Bin Laden’s numerous son-in-laws was arraigned in the Manhattan Federal Court here on Foley Square.
Suleiman Abu Ghaith was taken into custody in Jordan by US law enforcement agents on February 28 and transported to New York City on March 1. Yesterday appearing before Judge Lewis Kaplan he entered a plea of “not guilty” to numerous charges related to the planning and execution of the terrorist attacks in NYC and Washington DC on 9-11-2001. For the time being he is being represented by a court appointed attorney, Phil Weinstein, with the aid of an interpreter. Abu Ghaith is being held at the Metropolitan Correctional Center on Park Row just a short walk from the site where the Twin Towers of the World Trade Center once stood.
It appears that finally New York City may actually be the host to an actual prosecution of an Al Qaeda member of such a high rank. In the past several scheduled trials were moved from the Manhattan Federal Court to military prison at Guantanamo Base Cuba after various protests and security concerns. In this case it seems that such barriers to a trial in New York City have been eliminated. Mayor Michael Bloomberg and NYPD Commissioner Ray Kelley have both asserted with confidence that a trial of this nature will not impact the public in any way. There is evidence of enhanced security in this neighborhood but such shows of force have become routine in the last 12 years. One heavily armed NYPD ESU Detective manning a foot post near Center Street, who did not want to be identified commented, “There is no reason to not try any one terrorist here. After all, their crimes were committed here, our people lost their lives that day and there is a small amount of justice just in having him locked up here.” His sentiments were echoed by several high ranking members of the NYPD Intelligence Unit not speaking for attribution.
SYMBOLISM AND SATISFACTION
There is no lack of significance to having Abu Ghaith tried here in the City most affected by Al Qaeda terrorism. The feelings of most New Yorkers spoken to today were that they were comfortable with the idea of a terrorist finally standing trial here. We have witnessed over a decade of federal government ineptitude in their hapless efforts, as then President George W. Bush used to proclaim to, “Bring them to justice”. His Administration constructed the prison for “enemy combatants” at the US Naval Base in Cuba and spent years in legal limbo regarding what method and venue for prosecuting such “detainees” was most appropriate. As the years have passed hundreds of men who had been held in the prison at Guantanamo have been released without any prosecution, some repatriated to their country of origin; others taking refuge in countries such as Yemen, Iran and Pakistan. Some of those captured in the earliest days of our military intervention in Afghanistan did yield nuggets of “actionable intelligence” but most were simply tribal soldiers and members of the Taliban or Al Qaeda and had no intelligence value per se. As the years of incarceration dragged on whatever value they had initially had as captives was no longer relevant.
Our declared “War on Terror” is now in its 12th year and in many ways in Afghanistan, the epicenter of the original fighting, the “war” has devolved into a matter of attrition. Our superior military troops and technology easily routed the Taliban by December 2001 and captured or killed thousands of Al Qaeda members. Despite our early success we are mired in a “hot” conflict with no clear exit strategy and little to show in the way of political stability in that notoriously ungovernable land. The Cheney/Bush Administration’s hand-picked Afghan President Hamid Karzai has proven to be a corrupt, duplicitous, unreliable “ally” and has little to no actually authority in his country outside his heavily fortified palace. It is largely common knowledge in the CIA, Department of State and Department of Defense that Karzai has enriched himself by pilfering huge amounts of the generous military and humanitarian aid the United States has provided to his country. He has allowed and protected his younger brother as he has blatantly run the lucrative opium trade in Afghanistan and has demonstrated on more than one occasion that he is really no “ally” of the United States.
In principle trials are not about vengeance. Under our Constitutional system and the well-respected albeit sometimes threadbare precedent of jurisprudence going back to the Magna Carta, each trial is to be an exercise of blind justice within the established confines of legal procedure, decorum, and objectivity. That is principle. In reality often trials are more than that, much more than the rigid application of statute and law, of motions, writs, discovery evidence and the well-known dance between prosecution and defense. Sometimes a trial transcends the stale language contained in the indictment; there are crimes that feel on a human, moral and ethical level to be too large and evil to be corralled by the niceties of the courtroom. There are trials were justice may be sought as an abstraction while the real aim of the aggrieved is far more than that. Retribution and vengeance often sit in the gallery benches aside men and women who have suffered unspeakable losses, whose lives were forever knocked off kilter only to exist in an irregular orbit susceptible to raw emotions like anger and revenge. Punishment is sought; a putative ruling is sought with a blood lust screaming from the bowels of victims and survivors alike.
Arguably the collective “we”, New Yorkers as diverse and disparate as we are, are on a rare occasion moved to a commonality of thought, we end up together on that same plateau overlooking a transgression and see the legal process as a waste of time and money; as a literal charade where the deck is stacked in a twisted almost incomprehensible sense to the defense. We can cry out in unison “what rights did our loved ones have” when evil men flew fully fueled jumbo jets into the office towers our family and friends worked in. We cannot contain emotion at times when the crime exceeds what we see as the limitations of our criminal justice system. It is a hard and bitter pill to swallow. We seek, if not demand satisfaction via the established route while being darkly cynical that we will ever be granted it; even a fraction of it as a pacifying elixir to soothe our raw and abraded souls.
We find Biblical, Talmudic, and Koranic validation for our desires. We cite ancient passages and parables to justify our righteous “eye for an eye” certitude. We can pray for some small measure, just a fraction of the pain and suffering our loved one died to be experienced by the accused after conviction. We want death penalties executed swiftly after a conviction simply because it comports with our We want death penalties executed swiftly after a conviction simply because it comports with our adopted catechism. A judgment of guilt is but a paltry first step of what we want and we are not wrong to want any of these things. Darwinian evolution and the remnants of our roots in antiquity allow us to accept what we so desperately want as right, as the only measure of true “justice” we can accept.
We want to be part of it if only as an observer given proximity to the accused. We want to look at them, glare into their eyes. We want to vault over the courtroom partition and inflict pain on this animal that hurt us, who took from us the only irreplaceable components of family and life; those we have lost. We want to do for them what they cannot do for themselves. To appease in some small way the raw emotion that burns with the intensity today it did on September 11, 2001.
And yes, we want it here, on our turf, on the same ground they brought the fight to us on. Many of the American flags that became ubiquitously displayed all over town in the days after 9-11-2001 have become faded and tattered while others have vanished. The rabid strain of patriotism and unity that sprang forth before the smoke at the WTC had cleared has also faded and become tattered; complacency has taken the colors out of the flags and the winds of apathy have frayed their edges. But we still want what we believe to be ours.
GET ON WITH IT
Perhaps New Yorkers would not feel as strongly about the scheduled trial of Abu Ghaith if there had already been some successful prosecutions already conducted. We have waited patiently through two Administrations and at least 4 Attorney Generals to see some of the high profile detainees held in Guantanamo brought to “justice” and it simply has not happened.
In November 2009 Attorney General Eric Holder announced with great fanfare that Khalid Shaikh Mohammed (KSM) the self-described mastermind behind the 9-11-2001 plot was slated to stand trial in the Federal Court for the Southern District of New York. After being held prisoner at Guantanamo by the United States for over six years it appeared his trial was imminent. For confusing, often contradictory reasons the Justice Department backed out of that arrangement and KSM lives a quiet, serene existence with all his needs met in his Spartan cell in Cuba to this day. He has yet to be tried. He likely may never be. That is and should be unacceptable to all Americans and New Yorkers in particular.
The concept of some sort of hybrid military tribunal as a venue to prosecute men such as KSM and Abu Ghaith has been seriously flawed since it was first mentioned. All efforts to get any of these proceedings underway have been met with an avalanche of legal maneuvers and motions from the defense and a distinct “seat of the pants” approach by the prosecution, such as it is. The idea that these men, call them “enemy combatants”, “detainees”, “non-state sponsored terrorists”, “war criminals” or the Beach Boys makes no substantive difference. We have had to adapt rapidly to this new brand of unconventional asymmetrical warfare and guerrilla tactics, IED’s and suicide bombers. Why has the legal apparatus in the both military and Justice Department adapted to this new class of defendant? That they haven’t is a powerful statement illustrative of the endemic ineffectiveness of both entities.
TIME IS ON THEIR SIDE
We have yet to try any of the detainees we hold with direct connections to the September 11, 2001 plot. We have not tried any of the enemy combatants be they hard core Al Qaeda or devout Taliban warriors. The war of attrition in Afghanistan is certainly going their way. We will leave that place someday, some pre-set date not yet determined but we will leave. As our enemies continue to fight, strategize, plan and plot our short term memory deficit has reared its head earlier this week. One of the bastard children of the bloated inefficient bureaucracy this is the Department of Homeland Security (DHS), the Transportation Security Agency (TSA) announced that air travelers can once again carry pocket knives, baseball bats, golf clubs and other previously prohibited items on their person when they fly. We may have forgotten or lost sight of the rationale that had banned such objects from being brought on airplanes over the last few years. Those who are intent on doing us harm again have most assuredly not forgotten, they do not forget and they are watching us and probably laughing at our ignorance.
We can only hope that our luck will continue to hold because that is what has been the biggest single factor in thwarting other terrorist attempted attacks and plots up to this point. They have all the time they need; they will out wait us and may outwit us once more. They made their presence known to Defense secretary Chuck Hagel this morning in Afghanistan and they would like nothing more than to hit us at home again.
Hopefully the Justice Department can get the trial of Abu Ghaith underway as quickly as possible so we can send a message of our own. We have not forgotten and no matter how long it takes, we will find you. Just ask Osama Bin Laden about that.
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