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Should Abu Ghaith Have Been Sent to GTMO? Senators Ayotte and Graham (Still) Think So

Raffaela Wakeman
Friday, March 15, 2013, 2:36 PM
Wednesday on the Senate floor, three senators spoke about the Obama administration's decision to prosecute, in a federal court, Osama bin Laden's son-in-law and Al Qaeda spokesman Sulaiman Abu Ghaith. Republican Senators Kelly Ayotte and Lindsey Graham unsurprisingly opposed this approach, and argued instead that Abu Ghaith should have been sent to GTMO for interrogation, detention, and (potentially) trial by military commission.

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Wednesday on the Senate floor, three senators spoke about the Obama administration's decision to prosecute, in a federal court, Osama bin Laden's son-in-law and Al Qaeda spokesman Sulaiman Abu Ghaith. Republican Senators Kelly Ayotte and Lindsey Graham unsurprisingly opposed this approach, and argued instead that Abu Ghaith should have been sent to GTMO for interrogation, detention, and (potentially) trial by military commission. Responding to the pair---and supporting the Administration---was Senator Patrick Leahy of Vermont. (The first two Senators apparently didn’t read Ben's memo that no administration will send any new detainees to GTMO, so long as NDAA-mandated transfer restrictions remain; Bobby's suggestion that Abu Ghaith's conduct did not state a viable commission offense; or Wells' reminder that current law wholly authorizes the Administration to opt for the criminal justice system instead of GTMO.) For Senator Ayotte, the primary goal of Abu Ghaith's capture should be intelligence collection.  She thus suggested that the Administration hasn't made intelligence a priority in its handling of the case.  On that point (and oddly enough) her floor remarks contrasted Abu Ghaith's treatment with that of Anwar Al Aulaqi and KSM. On Al-Aulaqi:
I want to point out how inconsistent it is that we are willing to use the drone program to take out someone like [Anwar] al-Awlaki, and yet we will not use all the tools in our toolbox to ensure Osama bin Laden's son-in-law is held at Guantanamo and fully interrogated to give us the time we need to gather the full information he has. It is very inconsistent, and I think the administration should be detaining enemy belligerents in Guantanamo and ensuring they are interrogated.
With regard to KSM, she said:
The public outrage was great over bringing Khalid Shaikh Mohammed to New York City due to the amount of security it would take to secure someone like him. There was the concern he should be treated as an enemy of our country and tried by a military commission in Guantanamo. He was transferred there eventually by the administration, but only after great pressure from both sides of the aisle in Congress to say it would be appropriate that the mastermind of 9/11 belongs in Guantanamo before a military commission. I think we find ourselves in the same situation now with Osama bin Laden's son-in-law. There can be no doubt he is a top member of al-Qaida; that he had close relationships with Osama bin Laden; that he is charged with conspiring to kill Americans. These are very serious charges, and there can be no doubt that he falls within our operation and the use of military force; that he is an enemy of our country and that we should be treating him in a similar fashion as to how we treated Khalid Shaikh Mohammed.
Apropos, Senator Ayotte also introduced an amendment to the continuing resolution for FY2013.  The legislation was cosponsored by Republican Senator Saxby Chambliss, and would express the sense of the Senate about Abu Ghaith and future Al Qaeda captures.   In particular, the proposal affirms that the U.S. is at war with Al Qaeda and associated forces; that, when a member of such groups is taken into custody, priority should be given to intelligence collection and to the prevention of future attacks; that a detainee should not given a Miranda warning or afforded the rights of civilian defendants; and that detainees should be sent to Guantanamo for "long-term interrogation, and, as appropriate, trial by military commission." Senator Graham echoed many of Senator Ayotte's points. But he also went further, adding a few points of his own about the optimal policy towards terrorism detainees:
They are making a huge mistake. The decision not to treat him as an enemy combatant and putting him at Guantanamo Bay for interrogation purposes under the law of the war is one of the most serious mistakes we have made since 9/11. We are beginning to criminalize the war. This was not an intelligence decision or a military decision; it was a political decision, because they will never convince me or almost anybody else in America that interrogating him for hours was enough. The reason he was interrogated for hours and not days is that they did not want to take him to Guantanamo Bay. The reason he was read his Miranda rights is they are pushing everybody back into the criminal justice system. All I can say is that Guantanamo Bay has been reformed. It should be the place we take people such as he, as an enemy combatant, to be interrogated under the law of war, and we are using the criminal justice model in a way that will come back to haunt our Nation. We are beginning to criminalize the war. I want my colleagues to know we are going down a very dangerous path, and I will do everything in my power to get this administration and future administrations back in the game when it comes to fighting a war because I believe very much, I say to my colleagues, that we are in a state of war with an enemy who does not wear a uniform, who has no capital to conquer, no Air Force to shoot down, and no Navy to sink. The only thing between them and us is our brave men and women in the military and good information. This man was interrogated for hours when he should have been interrogated for months. We are beginning to do what got us into this mess to begin with, looking at al-Qaida as a group of common criminal thugs rather than the warriors they are. These people right here mean to kill us all. They are at war with us. I intend to be at war with them.
The dissenting Senators' remarks thus implicitly reject the Administration's longstanding refusal to grow the detainee population at Guantanamo.  No new detainees have arrived there in five years; the last was Muhammed Rahim al Afghani, who was brought to the island on March 14, 2008. Senator Patrick Leahy of Vermont, chairman of the Judiciary Committee, rose to defend the Administration's move.   He pointed out several facts regarding the period between Abu Ghaith's capture and his indictment---facts that Senators Graham and Ayotte pointedly had glossed over.  It turns out the now-defendant was interrogated for approximately a week before receiving his Miranda warning.  What's more, he apparently furnished 22 pages' worth of post-capture statements; and detailed, extensive audio recordings were made at the time of Abu Ghaith's apprehension, too.  Despite this, Leahy emphasized, he was not arguing that federal courts should be the only option available:
It is clear to me that President Obama's national security team did the right thing. But we also show the rest of the world that we are not afraid, that as Americans we are not cowering and afraid to use our courts, and that we are not afraid to use the law and procedures that have made us free and strong. We have had several hearings in the Judiciary Committee on how best to handle terrorism suspects. I am convinced that the Attorney General and the administration must have all options available. For example, the case of the Fort Hood shooter went to a military trial, as it should have. That case involved a military officer committing a crime on a military base against other military personnel, even though influenced by somebody from al-Qaida overseas. But in the Abu Ghaith case we have somebody that we can and should prosecute on conspiracy charges in Federal court. As a former prosecutor, I have looked at that, and I have absolute faith in the abilities of our Federal courts and our prosecutors and law enforcement officials to bring terrorists to justice. They have a tremendous record.

Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT. Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.

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