In Civilian Court, Terrorist Sentenced After 17 Months; At Guantanamo Tribunal, Still No Trials After 17 Years

And yet we supposedly need Gitmo because civilian courts aren't up to the task.


Ahmad Rahimi appeared in New Jersey state court to be arraigned in 2016. Mike Segar/Reuters/Newscom

Tuesday saw two major developments in America's efforts to prosecute accused terrorists. Between them, they undermine an argument about the alleged need to try terror suspects in military courts.

The first development was the sentencing of Ahmad Khan Rahimi, the so called "Chelsea Bomber," who detonated three homemade bombs in New York and New Jersey in September 2016. A judge in the Federal District Court in Manhattan sentenced Rahimi to two life terms yesterday, just 17 months after Rahimi's arrest. It's hardly the first time our civilian courts have taken care of a terror case with such efficiency. "Shoe bomber" Richard Reid was sentenced in January 2003, just over two years after he was arrested. Sayfullo Habibullaevich Saipov, the ISIS-inspired Uzbek who allegedly drove a truck through a crowd of pedestrians in downtown Manhattan last Halloween, was in federal court within 24 hours, and he has already offered to plead guilty on the weight of the evidence against him. A jury found Ahmed Abu Khatallah, a Libyan national involved in planning the 2012 attacks on the U.S. embassy in Benghazi, guilty of terrorism charges last November.

These cases have at times required some deviations from standard federal criminal procedures, largely to protect U.S. foreign intelligence sources. But they have been conducted, for the most part, in the same manner as the many other criminal prosecutions heard in federal courts every year, and they aren't taking dramatically longer to resolve than other criminal cases.

Yesterday's second development, however, is rather less impressive.

The military commission at Guantanamo Bay is currently attempting to try Abd al-Rahim al-Nashiri for the 2000 bombing of the USS Cole. Yesterday an Air Force judge, Col. Vance Spath, ordered U.S. marshals to arrest two civilian attorneys who had resigned in protest from the team of lawyers attempting to represent Nashiri. More than 17 years after the Cole bombing, a trial date has still not been set.

A complete description of the events which have led to this latest showdown could probably fill several volumes, but the short version is that the two civilian attorneys, employed by the Department of Defense, said they could no longer ethically represent al-Nashiri after Spath ruled that their communications with him were not entitled to confidentiality. They received permission to withdraw from the case from their military supervisor, Marine Brig. Gen. John Baker. This upset the judge, who declared Baker guilty of contempt and sentenced him to 21 days of confinement when Baker refused to order the lawyers back to the tribunal. After higher-ups at the Pentagon overturned Baker's sentence, Spath ordered the two back himself. They also refused. Thus the arrest warrants.

This ongoing tragedy of errors will not be altogether unfamiliar to those who have followed the ad hoc military courts that hawks insist are essential to bringing terrorists to justice. Similar drama has swirled around the other high-profile trial attempt at Guantanamo Bay—that of the six detainees accused of helping plan the 9/11 attacks. That case has been bogged down in years of pre-trial bickering between defense, prosecutors, judges, and the Pentagon.

The Obama administration tried to transfer the case to federal court in 2009, but was blocked when Congress outlawed the transfer of Gitmo detainees onto U.S. soil. The case was sent back to Guantanamo, but efforts to take it to trial there were derailed when it turned out the CIA had hijacked the court's audio censorship system, meant to prevent the inadvertent broadcast of classified material to the court's spectator area, and was blocking audio without the judge's approval.

We supposedly needed those military tribunals because ordinary criminal legal procedures were insufficient to address terrorism. But boring old federal courts keep running up the score against military justice.

NEXT: Trump Donates $100,000 to the Department of Transportation. How Much Infrastructure Will That Buy?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. If they don’t have enough evidence to convict him, then they don’t have enough evidence to detain him. If it’s purely bureaucratic then they need to forced to allow for Speedy Trial as in civilian courts.

    1. Am I a terrible person for not really caring about someone that did something that would land them at gitmo?

      1. Meh I don’t really give two shits about the person, the rule of law on the other hand I do care about.

  2. It’s amazing that after over 16 years, Reason and the Federal District Court in Manhattan both still have a 9/10 mindset.

    1. Modern righties: Civil liberties are old fashioned relics of a time before terrorists

      Modern lefties: Free speech is an old fashioned relic of a time before hate speech

    2. 9 out of 10 is pretty good. You can’t expect to get them all.

    3. By 9/10 mindset you must mean due process and the rule of law? I know, so-o-o-o-o-o-o antiquated.

  3. Treat them like criminals and take away their power to be anything but criminals.

    Once you give Islamic fundamentalists recognition as a military force and treat them as such, the have can become martyrs.

  4. Yesterday an Air Force judge, Col. Vance Spath, ordered U.S. marshals to arrest two civilian attorneys

    Time out. How does a military judge have jurisdiction to order non-military law enforcement to arrest people who aren’t subject the the UCMJ to begin with?

    1. Welcome to Gitmo and patriotism USA YAY YAY RAH RAH

    2. FYTW

    3. Yeah.
      Someone should arrest that Col judge.

      Here come da judge!!

    4. Hmmm… I can’t believe I’m going to say this, but… I’d like to hear John’s opinion.

    5. > How does a military judge have jurisdiction to order non-military law enforcement to arrest people who aren’t subject the the UCMJ to begin with?

      Easy softball. The attorneys are officers of the court, and hence, subject to the Rules of the Court. The judge has no authority to order any non-military law enforcement to detain them. He can authorize, but not compel them to arrest the attorneys.

  5. Ahmad Ramini committed his crimes on US soil and was captured by the police.

    How do you prosecute someone who was captured in a foreign country, possibly on a battlefield, probably by the U.S. Military (who aren’t trained for chain of custody issues), possibly aided by CIA/NSA intelligence gathering?

    I admit that Gitmo is a mess. The detainees are neither fish nor fowl. They are not lawful combatants as defined by the Geneva convention, so they can’t be treated as prisoners of war. They are not exactly common criminals either nor were they arrested like or processed like ‘normal’ criminals.

    The only historical analog I can think of that the Gitmo detainees resemble is that of pirates from the 17th century.

    1. How do you prosecute someone who […]

      Based on history, the answer is “carefully, in civilian courts”. Because Gitmo sure as hell ain’t doing it.

    2. The problem with treating them as POW, is the war is never ending.

      1. Yes, I alluded to this when I mentioned Geneva Convention issues. We are not at war with a nation, so there is no one to surrender to us.

        Al-Qaeda, ISIS et. al. don’t have a unified chain of command. If the leader of ISIS in Syria were to surrender, the branches in Iraq, Afghanistan and elsewhere are highly likely to ignore his surrender and keep on fighting.

    3. They are not exactly common criminals either nor were they arrested like or processed like ‘normal’ criminals.

      Why? Why does the location of the crime suddenly elevate them to special status?

      1. It’s not just location, but how they are captured and interrogated.

        Say Joe Taliban is captured by US forces in Afghanistan with the help of some secret the NSA discovered that helped us locate him and shows that he was planning on attacking Americans.

        While in custody, Joe freely admits to his plans for a terrorist attack in America. Also, with the help of the NSA cracking his encrypted phone, we find his co-conspirators and arrest them also for conspiracy to commit terrorism (Note: I’m making up this crime. I don’t know if this is actually a thing).

        So, Joe and his buddies are going to be prosecuted in a civilian court. But wait: “Not so fast” say his court appointed attorneys. “When Seal Team 6 captured Joe, they did not read him his Miranda rights. Your honor, I move that Joe Taliban’s testimony about his alleged co-conspirators be excluded. My client was not informed of his Miranda rights.”

        1. The second point of contention would be the data from the phone. The defense lawyers would say “How do we know this data came from Joe Taliban’s phone? Show us how you got this alleged ‘data’ from his phone.” The NSA would say “This is a state secret. If we let you know how we did this, every other terrorist on the planet that we are tracking would know about it and make changes to their phones and then we wouldn’t be able to find out what they are doing.” The defense attorneys would then motion that this evidence not be allowed into court and without this evidence, the case would fall apart.

    4. The Nuremberg trials were a pretty good model: Try ’em together and hang ’em separately.

  6. The problem, IMHO, is a blurring of the definitions of “terrorist” and “enemy combatant”.

    A terrorist is essentially a criminal. Killing civilians to promote a political cause. When caught, police agencies collect evidence that is sufficient to convict, beyond a reasonable doubt, in a civil court. Due process.

    An enemy combatant is essentially a soldier, fighting other soldiers. When soldiers are captured on the battlefield, they are supposed to become POWs. POWs are to be detained for the duration of hostilities, under the rules of the Geneva Conventions, and then be repatriated. But since 9/11, the government has made the claim that soldiers fighting soldiers and caught on the battlefield are terrorists so that they need not comply with the Geneva Conventions. There are, of course, no investigators on the battlefield and there is no way in hell they could ever be convicted in a civil court for acting like soldiers. They are, however, likely very bad people who will go right back to killing folks if ever released, but this is simply speculation on the part of the intelligence community.

    IMO, there are only two options. They are criminals or they are POWs. If they are criminals (or war criminals), try them. If they are POWs, comply with the conventions.

    If you want a third category (and I’m not sure what that’d look like) then Congress needs to create one.

    1. The problem is that there is no end in sight, no victory conditions, or even a declared enemy in the War on Terriers (or a declaration of war, while we’re on the subject). How do you repatriate POWs at the conclusion of an unending conflict with an imaginary enemy?

      1. Ah, you beat me by a couple of minutes.

        Never ending wars leading to never ending detention is a feature not a bug.

    2. Agreed. See my ‘neither fish nor fowl’ comment above.

      If this were a ‘normal war’, we would release the POWs back to the surrendered enemy. Unfortunately, a lot of these prisoners home countries don’t want them back because they fear they will cause more mischief.

  7. Charles in charge hit with #MeToo? The terrorists have fucking won.

  8. Shooting @ FL Highschool

    Authorities reported an active shooting and at least one fatality at a high school in Parkland, Fla., Wednesday afternoon.

    The Broward’s Sheriff Office said the shooting is occurring at Marjory Stoneman Douglas High School in Parkland. Margate Fire Chief Dan Booker reported at least one fatality, reported The Miami Herald. Florida Sen. Bill Nelson said there were multiple casualties on Fox News.

    The suspect is reported to be a white male in a burgundy shirt, according to NBC Miami. The school is on lockdown.

    1. The suspect is reported to be a white male in a burgundy shirt, according to NBC Miami. The school is on lockdown.

      What’s cool about his is we KNOW he’s a white male.

      1. I’m more interested in the madness of someone who would wear a burgundy shirt.

        1. Or why it would be mentioned without regard to the color of pants. Need to know if it was a coordinated outfit.

Please to post comments

Comments are closed.