A federal jury in Manhattan has convicted Sulaiman Abu Ghaith, Osama bin Laden’s confidant, spokesman and son-in-law, of a terrorist conspiracy to kill Americans and providing material support to al Qaeda. It did not take long: the jury’s announced its verdict during the second day of deliberations in the three-week trial.
Some quick observations:
Abu Ghaith attempted the same defense that the Blind Sheikh tried when I prosecuted him back in the Nineties: namely, that the jury should understand that his threats and incitements in al Qaeda’s cause not as co-conspirator statements but as the preachments of a theologian performing the traditional role of an imam. Sadly, there is nothing inconsistent in these two things, either: There are commands to brutality in Islamic scripture, and if one resorts to them in the course of inciting jihadist violence, one is furthering a terrorist conspiracy even if one also happens to be an imam. Moreover, even if there were anything to the “theology” claim, several of Abu Ghaith’s assertions (e.g., announcing three weeks after 9/11 that “the storm of airplanes will not abate”) were black-and-white extortionate threats and difficult to rationalize as “theology.”
Relatedly, there is no sharia defense against terrorism charges. The question whether someone is culpable for terrorist activity is determined by American penal law; there is no exemption for imams claiming their endorsement of violence is an obligation imposed by sharia. Moral: If you are a Muslim-supreamacist defendant and you are talking about sharia in a terrorism trial, you are probably helping the government, but you are not helping yourself.
The principal problems are that (a) civilian due process requires revealing mounds of intelligence we have about the enemy, which is foolish to do while the war ensues and the enemy’s anti-American operations can still benefit; (b) it is perverse to reward enemy combatants with gold-plated due process once they succeed in mass-murdering Americans when other enemy combatants, who have plotted but not succeeded, are killed by military force with no due process; (c) military commissions are the proper vehicle for dealing with enemy combatants in wartime and they have been authorized by Congress—so enemy combatant terrorists, who defy international human rights norms by targeting civilians, should not be treated as if they were mere criminal defendants; and (d) the strong incentive prosecutors and courts have to withhold some discovery and procedural protections from enemy combatant terrorists—information and protections defendants would get in a normal criminal trial—can set precedents that apply to non-terrorists in ordinary cases, thus diminishing the quality of justice for Americans accused of crimes (i.e., the people for whom due process is actually intended).
Those concerns are not erased by the fact that Abu Ghaith has gotten his richly deserved convictions—no more than the acquittal of Ahmad Ghailani on 284 of 285 counts in the last civilian al Qaeda trial in Manhattan erases the high conviction rate of terrorists in civilian court since 1993.