Myths on the Khatallah Raid June 18, 2014: Days ago, a joint team of U.S. Special Forces and law enforcement operatives apprehended Ahmed Abu Khatallah in Libya, the alleged mastermind behind the 2012 Benghazi attack. His apprehension marks a major step forward in delivering justice for the attack that resulted in the deaths of four Americans, including Ambassador Christopher Stevens. Unfortunately, conservatives are playing hyperbolic politics with Khatallahs capture, as they have with the Benghazi attack for nearly two years. Already, conservatives are spinning myths about Khatallahs interrogation, demanding he be detained at Guantanamo Bay despite the lack of legal basis to do so, attacking the criminal court system as not adequate for trying Khatallah despite all evidence to the contrary, using the episode to try to further obstruct the closing of the Guantanamo detention facility, and even implying that the timing of the raid was politically motivated or that it should have happened sooner with less preparation despite the obvious increase in operational risk - including possible U.S. casualties - that would have entailed. But all of these criticisms ignore basic facts: 1. Myth: Khatallah isnt being interrogated adequately or has to be interrogated under the laws of war in order to obtain good intelligence. Fact: Khatallah is being interrogated by the nations elite interrogation unit that specializes in dealing with terrorists. It has been reported that Khatallah is aboard a U.S. Navy vessel in the Mediterranean and is being interrogated by the High-Value Detainee Interrogation Group (HIG). According to the FBI, Chartered by the National Security Council, the mission of the HIG is to deploy the nations best available interrogation resources against detainees identified as having information regarding terrorist attacks against the United States and its allies. The HIG has the most relevant experience for such interrogations, having interrogated Abu Anas al-Libi who is charged with the bombings of U.S. embassies in Kenya and Tanzania, Faisal Shahzad the attempted Times Square bomber, and Dzhokhar Tsarnaev who with his brother perpetrated the Boston Marathon bombing. [FBI Fact Sheet, accessed 6/18/14] 2. Myth: Khatallah can and should be detained in Guantanamo and be tried by a military commission. Fact: Neither military detention nor a military commission are legal options. Jack Goldsmith of Harvard Law School explains, 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 [2001] AUMF. Josh Gerstein reports that last year, Joint Chiefs Chairman General Martin Dempsey stated: The individuals related in the Benghazi attack . . . They dont fall under the AUMF authorized by the Congress of the United States. Goldsmith continues, What about trial in a military commission? . . . Section 948c of the Military Commission Act [MCA] of 2009 provides (my emphasis): Any alien unprivileged enemy belligerent is subject to trial by military commission as set forth in this chapter. However, Goldsmith explains, 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 dont - rise to the level of a stand-alone armed conflict. [Jack Goldsmith, 6/18/14] 3. Myth: Civilian courts are not adequate for trying Khatallah. Fact: Article III Federal Courts have a proven track record for prosecuting and convicting terrorists. According to the Center on Law and Security at the NYU School of Law, Approximately 300 prosecutions, from 2001 to 2011, resulted in indictments related to jihadist terror or national security charges. Of the several hundred resolved cases in this category, 87% resulted in convictions, roughly the same conviction rate that we find for all federal criminal indictments. The indictments remained relatively steady from 2003-2007, during the Bush years, with an average of 27 per year. During 2009 and 2010 . . . the numbers of indictments per year nearly doubled. So, too, the proportion of serious charges increased appreciably. [Terrorist Trial Report Card, 2011] 4. Myth: The U.S. could have gotten Khatallah earlier and he was apprehended now for political purposes. Fact: It takes time to put together an effective operation and to gather evidence for prosecution. The Daily Beast reports, the delay in apprehending the suspect was due in part to requests from the Justice Department to gather appropriate evidence to prosecute him in criminal court. Another factor was the time it took for detailed preparations for the operation. In the months leading up to the raid, teams from the Armys 1st Special Forces Operational Detachment-Delta, or Delta Force, practiced the extradition on a mock-up of abu Khatallahs compound at Fort Bragg, according to a U.S. military contractor familiar with the planning for the mission, resulting in the successful apprehension of Khatallah without any American or Libyan casualties. A premature or poorly planned operation would also have risked killing Khatallah and eliminating his potential intelligence value. [Daily Beast, 6/17/14] 5. Myth: Guantanamo Bay remains the United States best option for detaining terrorists. Fact: Closing Guantanamo detention facility is in Americas best interest. Khatallahs capture and the plan for his trial demonstrate that the prison at Guantanamo Bay is unnecessary - but not only that, its financially wasteful and a threat to U.S. national security. Of the 149 prisoners still detained at Guantanamo Bay at a cost of $2.7 million annually per detainee, 78 have been cleared for release, by both the Obama and Bush administrations. U.S. prisons have demonstrated that they are perfectly capable of holding convicted terrorists: Richard Reid (the shoe bomber), Ramzi Yousef (1993 World Trade Center bomber), Faisal Shahzad (Times Square bomber), and Abu Ghaith (Osama nin Ladens son-in-law) are all incarcerated domestically. Moreover, as long as the Guantanamo Bay prison remains in operation, it will continue to damage U.S. national security and its diplomatic relations with the world. As Secretary of State John Kerry wrote to Sen. Robert Menendez (D-NJ) in November 2013, The continued operation of the Guantanamo facility damages U.S. diplomatic relations and our standing in the world. It undermines Americas indispensable leadership on human rights and other critical foreign policy and national security matters. In particular, the Guantanamo detention facility impedes joint counterterrorism efforts with friends and allies. [John Kerry, 11/13/13] nsnetwork.org/
Posted on: Wed, 18 Jun 2014 19:45:55 +0000
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