The right wing has had three responses to the capture of Ahmed Abu Khattala in Libya: 1) Oh, the timing is too convenient! (which is moronic); 2) It’s no big deal, he was a bit player anyway; and 3) Send him to Gitmo! Torture him! Never mind that 2 and 3 contradict one another. Jack Goldsmith, an assistant attorney general in the Bush administration, says he must be tried in a civilian court under the law:
Many have criticized the Obama administration’s plans to try the alleged leader of the Benghazi, Ahmed Abu Khattala, in civilian court. “Ahmed Abu Khattala should be held at Guantanamo as a potential enemy combatant,” said Senator Lindsey Graham. Representative Trey Gowdy, who is leading the House committee investigating the Benghazi attack, argued for “a noncivilian court trial,” i.e. military commission. The problem with these proposed alternatives is that they are not legally available.
Military detention does not appear to be an option because the United States does not appear to believe that Abu Khattala and the others who perpetrated the Benghazi attacks fall within the AUMF. Josh Gerstein reports that last year, Joint Chiefs Chairman General Martin Dempsey stated: “The individuals related in the Benghazi attack, those that we believe were either participants or leadership of it, are not authorized use of military force. . . . They don’t fall under the AUMF authorized by the Congress of the United States.” If Abu Khattala does not fall under the AUMF then it would be very hard to sustain military detention of him…Abu Khattala is an alien and not a privileged belligerent. It might appear that he is an unprivileged belligerent because he has (or is alleged to have) “engaged in hostilities against the United States.” However, the MCA defines “hostilities” to mean “any conflict subject to the laws of war,” i.e., probably, an armed conflict. While the Benghazi attacks were horrific, they might not – indeed, almost certainly don’t – rise to the level of a stand-alone armed conflict…
There are other complications here, but my first take is that the critics of the Obama administration’s choice of civilian court to incapacitate Abu Khattala don’t have a legal leg to stand on. If the United States wants to maintain custody over Abu Khattala, interrogate him as aggressively as possible, and incapacitate him for a long time, then a lawful interrogation on ship pursuant to the “public safety” exception before sending him to the United States for civilian trial appears to be the only legally available option.
There are also two facts that conservatives would love to ignore: Civilian courts have a much better track record of convicting terrorists (not a single one has failed to be convicted) and that conventional interrogation has also proven far more effective than torture in gaining valuable information. And remember, these are the people who scream that Obama has undermine the rule of law (and he has, in many important ways).