03/08/2013 10:30 am ET Updated May 08, 2013

In New Al Qaeda Trial Civilian Courts Retake the Stage

The Obama administration's decision to try Osama bin Laden's son-in-law, Sulaiman Abu Ghaith, in civilian court highlights deep fundamental disagreement about how to bring foreign nationals captured overseas and accused of terrorism to justice. Abu Ghaith, who was arrested in Turkey, and returned to the United States by way of Jordan, was indicted by a federal grand jury in New York for his role in conspiring to kill Americans as a high-ranking member of al Qaeda. Federal conspiracy charges require the government prove that a defendant agreed to commit a crime with another person and then undertake an overt step toward the commission of the crime.

Earlier today via an interpreter a handcuffed Abu Ghaith pled not guilty and accepted court-appointed counsel in a criminal arraignment in downtown Manhattan in federal district court. Abu Ghaith is alleged to have been part of bin Laden's inner circle and is mostly known as a shadowy figure who served as a spokesperson for al Qaeda following the 9/11 attacks. On November 16, 2001 he appeared in a video on al Jazeera television sitting next to the top three leaders of al Qaeda, including Osama bin Laden himself. He also threatened to kill four million Americans with biological and chemical weapons and warned them not to live in high rises or board aircraft as part of a battle against Americans, Christians and Jews. Since 2002 he has resided in Iran, mostly under house arrest, until his recent departure to Turkey on his way back to his birthplace, Kuwait.

Controversy Over Enemy Combatants Goes Back to Second World War
For decades the treatment of enemy combatants who target Americans for mass violence has evolved amongst rancorous debate in both the legal and political realm. In 1942 in ex parte Quirin, 317 U.S. 1 (1942), the United States Supreme Court unanimously upheld the right of the President to try enemy belligerents who violate the rules of war before military tribunals. The defendants in Quirin were eight German submariners who landed on beaches on Long Island and Florida to commit mass acts of violence and destruction against military and civilian targets while operating in civilian disguise. Rules of war are a code of conduct that relates to which acts of force are legal during the course of armed hostilities. The World War II era Court based its decision on the President's authority as commander-in-chief and Congress' prior approval of such tribunals.

Since Quirin, however, the United States entered into a modern set of international treaties on the matter of captured foreigners. The Geneva Conventions are a series of treaties that establish rules for the civilized treatment of civilians and combatants during armed conflicts. Under the Constitution treaties entered into by the United States have the force of law. In 1949, various previous Geneva and Hague convention rules were revised and additions made under the title of the Geneva Conventions of 1949. These post World War II Geneva Conventions and related protocols define various categories of protected classes of people and designates how they are to be treated by signatories during periods of hostilities, irrespective of whether war is officially declared. The Conventions provide a minimal level of care for all people who come under the jurisdiction of a party in a conflict. Under Article 3, those who are no longer participants in a conflict must be cared for humanely. Criminal cases must be tried fairly before a "regularly constituted court."

Article 3 also mandates humane treatment as well as specific rights and protections to those designated as prisoners of war, a designation that most contend is not directly applicable to enemy combatants since they do not operate on behalf of a state army and do so out of uniform. Torture and cruelty is also proscribed and Article 3 details significant requirements on the type of charges, investigative techniques, and procedural methods for trials.

Bush Administration's Expansive View Of Presidential Authority Challenged
Despite an internal debate within the Bush administration, George Bush took an expansive view of the authority of the president to hold enemy combatants, including Americans, who were captured overseas indefinitely without trial. A prison camp on a United States Naval Base in Guantanamo Bay, Cuba was opened in 2002 and at its peak held just under 1000 prisoners, although the number now is under 200.

On March 21, 2002 the Defense Department published a manual detailing the composition and standards for military tribunals. While the traditional guilt standard of proof beyond a reasonable doubt would be applied to these proceedings, many other rules relating to evidence, appeals, and the role and composition of juries veered greatly from regular criminal trials.

On June 29, 2006, the United States Supreme Court delivered a major legal setback to the Bush administration in a case involving an aide to Osama bin Laden named Salim Ahmed Hamdan. In Hamdan v. Rumsfled, 548 U.S. 557 (2006), the High Court conclusively ruled in favor of Hamdan. First, the Court held that a foreign detainee's rights were protected by the Geneva Conventions and were enforceable through the federal courts pursuant to habeas corpus procedures. Second, the Court ruled that the President lacked the necessary Constitutional authority or specific Congressional authorization for the tribunals he created. Without specific Congressional approval, the President was obligated to follow existing law, including the Uniform Code of Military Justice and the laws of war, which include the Geneva Convention. Restrictive evidentiary rules for the defense and Hamdan's compulsory nonappearance on national security grounds from portions of his trial violated provisions of both these controlling authorities, thus making his trial unlawful.

President Bush's initial position of near exclusive executive authority to hold and try enemy combatants was further reduced by the intervention of the Supreme Court in cases such as Hamdi v. Rumsfled, 542 U.S. 507 (2004) (American citizen) and Boumediene v. Bush, 553 U.S. 723 (2008) (limitation on appeals). Congress also entered the fray in the later years of his administration through legislation entitled the Military Commissions Act of 2006 and 2009, but even its authority was reigned in when the Supreme Court invalidated a Congressional provision that limited appeals from the decisions of military commissions.

President Obama Faces His Own Challenges
President Obama, whose positions stand in stark contrast to that of President Bush, has nonetheless faced challenges of his own. His goal of closing Guantanamo Bay and transferring remaining prisoners to the American mainland met with fierce resistance. Similarly, the administration was forced by Congress and public outcry to try Khalid Shiekh Mohammad, the mastermind of the 9/11 attacks, in a military trial in Guantanamo Bay rather than a civilian one in New York. Despite protests by South Caroilina Republican Senator Lindsay Graham, this trial unlike Mohammad's is likely to stay in civilian court for various reasons.

First, the judicial process has already started in federal court, making congressional intervention more complicated, if not impossible from a legal standpoint. Moreover, the defendant was captured outside of a field of battle and turned over to civilian American authorities. Second, there very well may have been informal diplomatic agreements with the countries involved in Abu Ghaith's transfer to have him tried in civilian courts. Third, the administration's goals of getting operational intel from the Abu Ghaith are not likely to be compromised by a trial. He appears to be out of the loop since 2002 and there have been far more important intelligence assets recovered since then. Furthermore, the administration has likely interrogated him in a separate national security process that is walled off from the criminal trial. Lastly, the President is in his second term of office. This makes him more immune from political criticism than someone facing reelection. Now, he must be concerned not with reelection, but rather what his legacy will be in balancing the sometimes conflicting crosscurrents of national security and civil liberties.