On Tuesday morning, a federal district court judge in New York sentenced Osama bin Laden's son-in-law to life in a U.S. federal prison.
When Sulaiman Abu Ghaith was arrested abroad last year, conservative lawmakers were outraged. "He is an enemy combatant and should be held in military custody," Senator Mitch McConnell (R- Ky.) said last February. Senators Lindsey Graham (R- S.C.) and Kelly Ayotte (R-N.H.) insisted Abu Ghaith should have been sent to Guantanamo Bay.
Fortunately, the Department of Justice didn't agree. The Kuwaiti imam was questioned and spoke freely to FBI interrogators, providing valuable information about al Qaeda and incriminating himself repeatedly. A little over a year after his arrest by U.S. agents in Jordan, Sulaiman Abu Ghaith was convicted by a New York jury in March of conspiring to kill Americans, conspiring to provide material support or resources to kill Americans, and providing that support.
The U.S. government claimed only that Abu Ghaith made a handful of speeches for al Qaeda between May 2001 and 2002. But because he was convicted of joining the al Qaeda conspiracy by becoming its propogandist, his conviction ultimately holds him responsible for the murders of all Americans al Qaeda orchestrated between 1998 and 2013. That's how U.S. conspiracy law works.
U.S. lawmakers eager to look tough on terrorism may continue to insist that suspected terrorists go directly to Guantanamo Bay. But there's no comparable law applicable in the Guantanamo military commissions that could hold a mere preacher and propogandist responsible for all the murder and mayhem caused by the group he took up with. It's therefore extremely unlikely that someone supporting al Qaeda the way Abu Ghaith did would end up with nearly as long a sentence at Guantanamo, if he were convicted there at all.
Congress tried to give the commissions jurisdiction over conspiracies when it passed the Military Commissions Act, but the appeals courts have so far held that portion of the law does not apply to acts committed before 2006. That's because "conspiracy" itself was never before considered a war crime, and military commissions exist specifically to try war crimes. "Material support" for terrorism -- the other charge against Abu Ghaith -- was not traditionally a war crime triable by a military commission, either.
As a result, the "enemy combatants" the Bush administration sent to Guantanamo and charged in military commissions have received sentences much shorter than those doled out in the federal courts. Of the eight men convicted, only three remain at Guantanamo. Two of the convictions have been overturned on appeal.
Critics have expressed legitimate concerns about U.S. conspiracy law, saying it's too easy to convict some people accused of low-level terrorist assistance and sentence them to hard time in highly restrictive prisons.
But the claim that the U.S. prison system is somehow too "soft" on terrorists or gives them rights that ought to be reserved for U.S. citizens is simply impossible to support. The life sentence of Sulaiman Abu Ghaith is just the latest evidence against it.