On Monday, a New York jury convicted the one-eyed, hook-limbed Sheikh Abu Hamza al Masri on charges arising from the deadly 1998 kidnappings of 16 American, British and Australian tourists in Yemen, and an attempt to start a terrorist training camp in Oregon in 2000. The jury took just 11 hours to decide Abu Hamza was guilty.
Over the course of the month-long trial in a U.S. federal court in New York, spectators watched a parade of government informants, including confessed terrorism supporters, take the witness stand and provide evidence against the fiery London-based preacher, leading to his conviction on 11 charges. In April, another extremist cleric, Suleiman Abu Ghaith, was convicted based on similar evidence. These two, both of whom could face life in a U.S. prison, add to the list of hundreds that have been convicted on terrorism charges in the United States since 9/11.
Meanwhile this week in Washington, lawmakers are once again considering the annual National Defense Authorization Act, and debating what to do about the men the United States has indefinitely detained for alleged terrorist activity at Guantanamo Bay. Can they be transferred for detention and trial in the United States? So far Congress hasn't allowed that. But the dilemma is growing more urgent as Washington prepares to withdraw its combat troops from Afghanistan by the end of this year -- officially ending the war there. That arguably ends the president's authority to detain prisoners under the laws of war as well.
President Barack Obama confirmed in January his desire to close the notorious Guantanamo prison by the end of this year. But Congress has so far made that impossible. And even the administration says there are some detainees at Guantanamo who cannot be tried yet are too dangerous ever to release.
Set aside for a moment how completely un-American that notion is. For anyone who's watched terrorism trials unfold in New York, the underlying premise -- that these men have committed crimes yet cannot be prosecuted -- just seems hard to believe. As we saw in the Abu Hamza case, the government is capable of calling up suspected or convicted terrorists from around the world when it needs to, and having them testify on everything from weapons training in Afghanistan to the testing of poison gas on small animals. The government's even managed to arrange repeatedly for a witness under indictment in the United States to testify by videotape from another country, so he can continue to evade U.S. authorities.
So is it really possible the government can't find witnesses to provide evidence against the vast majority of alleged al Qaeda or Taliban fighters still stuck in Guantanamo? That's unlikely, assuming that they've done anything wrong.
Under U.S. law, that's casting a very wide net. Take the case of Suleiman Abu Ghaith, the extremist Muslim cleric convicted last month of conspiring with al Qaeda to kill Americans and providing material support for terrorism. A prominent preacher from Kuwait, he'll likely face life in prison when he's sentenced for delivering a handful of speeches praising al Qaeda activities.
Or consider Syed Hashmi, the former Brooklyn College student who pled guilty to material support for terrorism after he let a friend store rain ponchos and socks in his London apartment. The friend, who later became a government informant, had planned on delivering the items to al Qaeda.
Hashmi, Abu Ghaith and Abu Hamza were all convicted based on evidence provided by government informants. Such informants have a huge incentive to provide evidence against others charged with terror-related crimes -- either to win a more lenient sentence, or to avoid prosecution altogether.
The Justice Department has prosecuted some 500 terrorism cases since the September 11 attacks. It's hard to imagine prosecutors haven't gathered enough evidence in those cases to be able to link any actually guilty men at Guantanamo to terrorism.
Ghaleb Nassar al-Bihani is still stuck at Gitmo though he's never been charged with a crime. At a recent review hearing at Guantanamo, the government claimed al-Bihani attended al Qaeda and Taliban-affiliated training camps "where he received in-depth instruction on the use of small arms and probably anti-aircraft weapons, lEDs, mortars, and landmines." He then supposedly "operated on the frontlines" against the U.S.-supported Northern Alliance.
If al-Bihani still poses a threat to the United States, there's no reason he can't be prosecuted here. Prosecutors frequently demonstrate that a defendant attended a camp in Afghanistan where al Qaeda followers learned to kill Americans, which is enough to convict them for material support of terrorism. If al Bihani "operated on the frontlines" with al Qaeda, he's guilty of conspiracy to kill Americans as well. Never mind that the United States was fighting and killing Afghans at the time -- the U.S. government claims al Qaeda fighters were all "unlawful enemy combatants" and therefore aren't immune from criminal prosecution.
Although al-Bihani denies he was a fighter, he admits to having been "an assistant cook" for a group fighting the United States, which itself is probably enough to convict him for material support, even under the 1996 material support law. (In 2004 Congress extended the reach of that law to cover anyone supporting terrorism anywhere.) Bihani claims he's not a threat to the United States, though, and doesn't even want to go back to Yemen, where he's from and the group al Qaeda in the Arabian Peninsula, or AQAP, is fighting the Yemeni government.
So the government has two choices. It could prosecute al-Bihani in a U.S. federal court, drawing on its arsenal of informants to testify to his training and cooking for terrorists trying to attack the United States. Or, it could decide prosecution isn't necessary and send al-Bihani to a third country where he could participate in some sort of parole or surveillance arrangement that would ensure he won't pose a threat to the United States in the future.
The claim that dozens of men at Guantanamo cannot be tried in the United States and are also too dangerous to release to another country is just not plausible. It's a claim we wouldn't accept from any other country, and we shouldn't get comfortable with it in the United States, either.
Before anyone accepts that idea, the government should be required to demonstrate publicly the evidence it has against these men and why they can't be brought to justice in a U.S. court. Congress should also lift the restrictions on bringing them to the United States for prosecution.
If the only evidence against these detainees is based on torture, then that evidence is unreliable and shouldn't be the basis for either their prosecution, or their continued detention.
It comes down to this: If these men are guilty of supporting or conspiring in terrorism, the government can prosecute them for that here in the United States. If they're not, then after more than 12 years of indefinite detention at Guantanamo, the clock is ticking loudly: This war will soon be over, and it will be time for the United States to let them go.