From a legal standpoint, Jack Goldsmith argues that the alleged Benghazi mastermind must be tried as a civilian, contra the FNC crowd’s insistence that he be sent to Guantánamo Bay:
Abu Khattala is an alien and not a privileged belligerent. It might appear that he is an unprivileged belligerent because he has (or is alleged to have)
“engaged in hostilities against the United States.” However, the [Military Commissions Act] defines “hostilities” to mean “any conflict subject to the laws of war,” i.e., probably, an armed conflict. While the Benghazi attacks were horrific, they might not – indeed, almost certainly don’t – rise to the level of a stand-alone armed conflict. …
There are other complications here, but my first take is that the critics of the Obama administration’s choice of civilian court to incapacitate Abu Khattala don’t have a legal leg to stand on. If the United States wants to maintain custody over Abu Khattala, interrogate him as aggressively as possible, and incapacitate him for a long time, then a lawful interrogation on ship pursuant to the “public safety” exception before sending him to the United States for civilian trial appears to be the only legally available option.
Sam Kleiner reminds Butters and other detractors of civilian trials for terror suspects that these trials have been tremendously successful:
While Republicans like to portray federal courts as too weak to handle suspected terrorists, the reality is that they have a proven track record for securing convictions in these cases.
In case after case, skilled federal prosecutors have won convictions of suspected terrorists. Preet Bharara, the U.S. Attorney for the Southern District of New York, remarked after one conviction: “As we have seen in the Manhattan federal courthouse in trial after trial—of Ahmed Ghailani, of Suleiman Abu Ghayth, and now of Abu Hamza—these trials have been difficult, but they have been fair and open and prompt.” Prosecutors have even been able to gather intelligence from suspects; in the trial of Abu Ghaith, a confidante of Osama Bin Laden, prosecutors produced a 22-page memorandum with all of the information that Ghaith shared both before, and after, he had an attorney.
Benjamin Wittes believes it made sense to send captives to Guantánamo in 2002, but not anymore:
The argument for Guantanamo—or some other detention facility—has to do with numbers. What happens when you capture, say, 10,000 people and know that most of them are foot soldiers but some of them are Abu Khattalas and some of them are mistakes—but you don’t know which are which? As John Bellinger has repeatedly pointed out, moreover, in the context of 2001 and 2002, the criminal law also did not yet cover the conduct of many people held at Guantanamo. So there was a substantive law problem in addition to a numbers problem.
Guantanamo, in other words, was a response to a specific set of circumstances—circumstances in which the criminal justice apparatus would simply have been overwhelmed by an influx of undeveloped cases. I believe it was a legitimate response, and I make no apologies for it. I also believe that at least some of the circumstances that gave rise to it could, and probably will, arise again. But that does not mean it is the answer to all problems. And it certainly is not the answer to the problem of an individual terrorist captured after a long period of investigation and against whom the evidence will support a strong criminal case. Dogmatically insisting on its use in such situations is as silly as rejecting it in principle.
The administration is actually “straddling the issue,” Mark Thompson writes, by questioning him on a Navy ship anchored in the Mediterranean:
The Administration has questioned at least two other terror suspects aboard ships for up to two months before dispatching them into the federal court system.
“The only reason for having him on a U.S. warship is to provide a nice quiet environment where the investigators can work their wiles on him,” says Eugene Fidell, a military-law lecturer at the Yale Law School and former president of the National Institute of Military Justice. “If the government wanted to have Khattala at the E. Barrett Prettyman courthouse [in Washington, D.C.] by four o’clock, he’d be there. The notion seems to have taken root that the government has, if not all the time in the world, as much time as it reasonably wants to see if can coax these people into making statements.”
The Dish 