The Appeal of the Courts

By Phillip Carter, Deborah Pearlstein

March 25, 2013 Foreign Policy - In his second inaugural address, President Barack Obama alluded to the end of the nation's post-9/11 wars, describing his vision of a world where "enduring security and lasting peace do not require perpetual war." Listening to the debate last week on whether Congress should expand its previous guidelines for using military force to combat terrorism, it was easy to wonder whether that vision would ever become a reality.

Yet the path to a postwar approach to terrorism has been well on display these past few weeks in Manhattan, exemplified in the foreign capture and federal criminal prosecutions of Sulayman Abu Ghaith, Osama bin Laden's son-in-law, and Ibrahim Suleiman Adnan Adam Harun, an al Qaeda operative captured in Italy and extradited to the United States last year. Abu Ghaith pleaded not guilty; court filings suggest Harun is cooperating with investigators and may soon plead guilty.

Each of these cases could have gone a different route: U.S. special operations forces could have targeted each man, relying on the same statutory authority to use military force that has animated U.S. military counterterrorism operations since just after 9/11.  Had either been in Afghanistan or Pakistan, that might have been what happened. But after 12 years of war, we have learned that we can neither kill our way to victory, nor rely on military force alone. The nearly 500 criminal cases related to international terrorism since 9/11 -- including 67 cases involving defendants captured overseas, according to the Department of Justice -- demonstrate the viability of a postwar paradigm for counterterrorism. This model uses military force when necessary and appropriate, but relies more heavily on diplomacy, intelligence, and, yes, law enforcement. 

Abu Ghaith, for example, had reportedly been under the watchful eye of the U.S. intelligence community for years. After he slipped across the border from Iran into Turkey, Turkish authorities arrested him in Ankara and interrogated him there with the help of the U.S. interagency "High-Value Detainee Interrogation Group," comprising experts from the FBI, CIA, Department of Defense, and other agencies, supported by analysts who have been tracking the bin Laden family for more than a decade. Turkey declined to move Abu Ghaith directly to the United States over concerns he could face the death penalty. Instead, Washington brokered a deal whereby the Turks would send Abu Ghaith back to his native Kuwait by way of Jordan, a country with whose intelligence service the CIA has an extraordinarily close relationship. Abu Ghaith thus landed in Jordan to be met by FBI agents, who arrested him and flew him back to the Southern District of New York, so jurisdiction would fall to the court located just a few blocks from Ground Zero.

This model -- surveillance abroad by military and intelligence agencies, strong allied cooperation, coupled with U.S. prosecution and incarceration -- has now been used successfully in a range of cases. In 2011, U.S. military forces captured suspected terrorist Ahmed Warsame off the coast of Yemen, and later transferred him from Pentagon to Justice Department control. Warsame pled guilty to multiple federal terrorism charges, a number of which carry a minimum sentence of 30 years. According to news reports and government filings, Warsame's cooperation has produced a great deal of valuable intelligence and evidence, including information that induced another defendant, Mohamed Ibrahim Ahmed, to plead guilty this past summer to crimes carrying a minimum sentence of 30 years in federal prison.

Similarly, in August 2012, local authorities apprehended three European men with alleged ties to the Somali terror group al-Shabab as they were making their way to Yemen. The FBI took custody of the men in November 2012, and on December 21 federal prosecutors hauled the trio into a Brooklyn court to face a multi-court terrorism indictment. The initial hearing took place in a sealed courtroom, following the federal courts' well-established rules for handling classified information and evidence.

The Justice Department in fact has a far better record than the Defense Department in prosecuting and convicting terrorist suspects. The federal Bureau of Prisons houses more than 350 international terrorists at three special prisons in Florence, Colorado, Terre Haute, Indiana, and Marion, Illinois. Most of these terrorists are serving long sentences for their crimes, thanks to stiff sentencing guidelines in the federal criminal system for terrorism. In these facilities, they may be subject to security, restrictions, and monitoring protocols that equal or surpass the conditions for detainees at Guantánamo  Bay. The endgame for these men is clear: With the legitimacy of their convictions and sentences beyond question, they now serve out their sentences in obscurity, without the ability to threaten our safety or to challenge U.S. policy from the public platform provided by still- novel military trials or legally uncertain detention.