The trial and the errors of the Abu Ghaith arrest

The trial and the errors of the Abu Ghaith arrest

Since US President Barack Obama cranked up the drone programme, the United States has been like the unyielding Robocop film character: "I'm not going to arrest you any more."

But last month, Turkey's MIT, the national intelligence service, found, detained and allowed the CIA to rendition the first known high-value prisoner in some time.

Instead of meeting death at the pointed end of a drone-delivered missile, Sulaiman Abu Ghaith will become the first high-ranking al-Qaeda terrorist to be treated like a criminal since Mr Obama took office. Unless the US president's plans are derailed, Mr Abu Ghaith won't go to the Guantanamo Bay prison, won't appear at a military tribunal and won't get an open-ended sentence of detention.

The Yemen-born son-in-law of and spokesman for Osama bin Laden and his al-Qaeda terrorist front will be held in the high-security wing of a civilian holding prison, given the chance to apply for (and be denied) bail, and attend a trial in a real courtroom _ his own.

This is a terrible idea.

This has happened to many terrorists and suspects in the past, before the 9/11 attacks. But the Abu Ghaith case, in important ways, changes the entire US legal landscape, and not simply that of the war on terror.

First, it puts into action a vastly scaled-down and somewhat corrupted version of what the world thought Mr Obama was going to do more than four years ago. That is when he signed a ruling to close Gitmo, end the military tribunals and bring the world's most dangerous terrorists to trial, and then to prisons, inside the United States.

None of that happened because almost no one in the US wanted it to happen. Congress denied Mr Obama the money to do it. And at that point, still morally certain that he would never send another terrorist to detention at Guantanamo, he began killing them instead.

It is an impressive achievement, the Obama Kill List. Bin Laden fell to the double-tap of a US Navy Seal, but throughout South and West Asia, Mr Obama has approved the killings of dozens of very important terrorists and enablers _ many of whom were not even engaged in terrorism against the US.

The drone attacks have caused their own concerns and raised troubling questions. Last week, the US Senate debated in a dramatic day the question of whether Mr Obama, who has pursued and killed American citizens abroad with missile attacks from drones, might kill US citizens at home.

Many were troubled by the president's refusal to give the answer they wanted, which was "No". And he never will give that simple answer.

The arrest of Mr Abu Ghaith and transport to a New York City courthouse within sight of the 9/11 attack site contains the same sort of troubling compromises, shady justice and justification-by-loophole. With one big difference.

The droning of US citizens is hugely rare, a classic dog-bites-man in the life of a presidency. Even if Mr Obama goes full Monty and zaps a US citizen right inside the United States _ and it is tremendously unlikely _ it is only vaguely troubling.

The detention, overseas arrest, secret rendition and initial charges away from public scrutiny is another story. Mr Abu Ghaith is a nasty piece of goods, as sociable (and as trustworthy) as a cobra. He has said some of the most vile things imaginable about the United States and three successive presidents.

Also, so far as is known, he never has lifted a finger against an American. There is apparently no evidence he ever lifted a finger against anyone, in fact. Ever. He will undergo a show trial on a charge that he conspired to kill Americans, on the basis he was allegedly present when plans were made to attack.

"Show trial" is a harsh term. But consider what the current US Attorney-General Eric Holder said when he and Mr Obama were attempting to put away the 9/11 mastermind Khalid Sheikh Mohammed in 2009.

"What I told the prosecutors," he testified to the US Senate under oath, "is that failure is not an option. These are cases that have to be won. I don't expect that we will have a contrary result."

If failure for the prosecution is not an option, then Mr Abu Ghaith (or Mr Khalid or other terrorists) will not have a fair trial as the term is currently understood. Between now and the end of Mr Abu Ghaith's trial, standards will change, judges will be influenced subtly, jurors will be jaundiced. Because "failure is not an option" is a clear instruction. As the 19th century US judge Roy Bean supposedly said: "Bring in the guilty bastard. We'll give him a fair trial, and then we'll hang him."

As of now, the only event that could prove that Mr Abu Ghaith was receiving a fair trial would be his acquittal. But as Mr Holder promised, "Even if that happened, that doesn't mean that person would be released into our country".

What, then, is the ultimate difference between detention in Guantanamo under military tribunal, or detention in some other prison under Mr Holder's successor's justice department?

There is a huge difference.

As the colonel told the sheriff in the first Rambo movie, First Blood: " I didn't come to rescue Rambo from you. I came here to rescue you from Rambo."

The danger of the secret overseas arrest, the clandestine rendition of Mr Abu Ghaith to America, the cloak-and-dagger arraignment in US federal court is not that Mr Abu Ghaith's rights were violated.

There is no real danger in treating Abu Ghaith like a criminal. The danger is that accused criminals _ known by their technical name of "US citizens and residents" _ will be treated like terrorists.

The pointed, delayed insistence of the Nobel Peace Prize laureate and his cabinet secretaries is that Mr Abu Ghaith, the new test case, will receive a criminal trial in a criminal court under US charges.

But of course he won't. Failure is not an option, bail is not an option, real acquittal is not an option. Yet the court will certainly rule that secret arrests abroad and black-ops rendition back to the US is entirely acceptable.

Mr Abu Ghaith is about to witness the full power of the US federal legal system, without hope of true legal representation. Who cares? The thousands of real criminal defendants who will follow, their rights curtailed because of the perceived need to demonstrate it is wrong to lock up bad people as enemy combatants.

One must wonder, even if it is wrong to lock terrorists away at Guantanamo, if it is as bad as making the point by introducing important new perversions of everyone else's justice systems.

Alan Dawson

Online Reporter / Sub-Editor

A Canadian by birth. Former Saigon's UPI bureau chief. Drafted into the American Armed Forces. He has survived eleven wars and innumerable coups. A walking encyclopedia of knowledge.

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