Khattala Must be Tried in Civilian Court

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).

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  • StevoR : Free West Papua, free Tibet, let the Chagossians return!

    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.

    Actually 1 contradicts 2 & 3 too!

  • D. C. Sessions

    The objectives of torture and military “trials” aren’t evidence and convictions but rather pre-trial punishment.

    Thus, Gitmo: people who cannot be tried due to lack of (admissible) evidence and can’t be released because if they weren’t obsessive adversaries before, after a decade and more of brutal abuse (often for no reason) they most certainly are now.

  • http://www.ranum.com Marcus Ranum

    When did US civilian courts start trying citizens of other countries captured in other countries, who did bad stuff in other countries?

    Is this some kind of reverse extraterritoriality?

  • colnago80

    Re Marcus Ranum @ #3

    If they assassinate Americans, they ain’t no damn good and deserve everything that’s coming to them.

  • Erk12

    Marcus Ranum:

    who did bad stuff in other countries?

    I’m no expert, but I would think this would be pretty easy because it was an attack on the embassy which is considered US soil. Therefore they killed Americans on American soil and then escaped to a foreign country.

  • Trebuchet

    When did US civilian courts start trying citizens of other countries captured in other countries, who did bad stuff in other countries?

    We’ve been doing that for a long time. We tried Manuel Noriega, the head of a sovereign foreign state, in 1992 after deposing him.

  • dingojack

    Glossary:

    AUMF = Authorised Use of Military Force bill of 2001.

    MCA = Military Commissions Act of 2006

    Ah generals, they’ve never met an acronym they haven’t loved….

    Dingo

  • dingojack

    SLC – And this highly moral principle has perfect reciprocity, right?

    Erk12 – Actually embassies are foreign soil only by convention, not by law*. They were Americans killed in a foreign land**

    Dingo

    ——–

    * “… it is a custom

    More honour’d in the breach than the observance.”

    ** “… ‘a watch dog in a nervous land

    They’re only there to lend a hand. Short memory “

  • thalwen

    1. They can’t lose the Benghazi issue. Never mind that most of them don’t know what happened or are capable of finding it on a map with Benghazi circled on it – Benghazi is the most pressing issue of the day.. year… millennium. I’m still waiting for the Benghazi Bible with every verse having a mention of Benghazi.

    2. They also can’t admit that Obama is capable of doing anything with a modicum of competence or without an ulterior motive.

    3. And they also love torture.

    Seems perfectly consistent to me.

  • Who Cares

    The only reason I can see the capture of this guy as even remotely acceptable is that there is no government (anymore) in the area capable of apprehending this guy.

    And yes that means that I think that how Bin Laden got taken out was wrong.

  • Gvlgeologist, FCD

    Erk12:

    Benghazi was a “U.S. Diplomatic Mission” (http://en.wikipedia.org/wiki/Benghazi), not an embassy anyway, so probably not even “by convention” US territory.

  • skinnercitycyclist

    a lawful interrogation on ship pursuant to the “public safety” exception before sending him to the United States for civilian trial

    Does this really not look like a euphemism for torture to you all?

    Because when a former Bush DOJ official says something like that, that’s what i think.