A fight is emerging on Capitol Hill between Republicans who want to send the recently arrested suspect in the 2012 terrorist attack in Benghazi to the U.S. military prison at Guantanamo Bay, and Democrats who argue the U.S. has convicted hundreds of terrorists using the federal court system.
Despite the GOP calls, National Security Council spokeswoman Caitlin Hayden has said taking Ahmed Abu Khattala to Guantanamo is out of the question.
“Let me rule that out from the start,” she said. “The administration’s policy is clear on this issue: We have not added a single person to the [Guantanamo Bay] population since President Obama took office, and we have had substantial success delivering swift justice to terrorists through our federal court system.”
Khattala -- nabbed in a secret military raid in Libya over the weekend -- is currently in U.S. custody outside Libya and is expected to be tried in federal court in Washington, D.C.
Even though federal courts have had a higher success rate in trying terrorist suspects than military tribunals, the GOP argument goes like this: At Guantanamo, Khattala can be thoroughly interrogated for intelligence, instead of being under civilian custody where he’d receive constitutional due process rights. Several Republican lawmakers have made that argument, including Sens. Ted Cruz of Texas, Marco Rubio of Florida, John McCain of Arizona, and Lindsey Graham of South Carolina.
“Khattala is a foreign terrorist, captured by our special forces overseas for his violent attack on a U.S. facility. He belongs in Guantanamo and in the military justice system, not in the U.S. civilian court system with the constitutional protections afforded to U.S. citizens,” said Cruz.
Graham said Khatalla must be treated as an enemy combatant and not be read his Miranda rights. “I hope we gather intelligence through the law of war interrogation. He should be going to Gitmo,” Graham said.
The GOP calls are somewhat ironic since there have been few terror convictions at Guantanamo. Meanwhile, many top terror suspects have been tried and convicted in civilian court, including Faisal Shahzad, who notoriously tried to explode a car bomb in Times Square in 2010; Umar Farouk Abdulmutallab, the so-called underwear bomber who tried to detonate explosives on a flight in 2009; and radical cleric Abu Hamza al-Masri.
Democrats continue to insist that the U.S. judiciary system is more than capable of trying Khatalla, the alleged mastermind of the attack on the U.S. consulate in Benghazi, Libya that killed four Americans, including Ambassador Chris Stevens.
“We will try Khattala just as we have successfully tried more than 500 terrorism suspects since 9/11,” said Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, adding that sending Khattala to Guantanamo “is the easy way out.”
Khattala, who has ties to Libyan Islamic militant group Ansar al-Sharia, is reportedly being held aboard a ship and is en route to the U.S.
The military commissions at Gitmo are not simply an alternate legal system for any Muslim accused of terrorism. Jack Goldsmith, a former Bush-era Justice Department official, wrote that Khattala isn't covered by the 2009 military commissions act, which some of the lawmakers demanding Khattala be tried by military commission helped write.
"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," Goldsmith wrote.
John Bellinger, former State Department legal adviser under Bush, agreed with Goldsmith that military commissions "are not necessary or appropriate for prosecutions of terror suspects who — like Ahmed Abu Khattala — have clearly violated federal criminal laws and who are captured after a lengthy criminal investigation and careful collection of evidence by the FBI."
Nor are Republican lawmakers unaware that the suspects in the attack on the U.S. consulate in Benghazi are not covered by the 2001 Authorization to Use Military Force, crafted to justify the use of lethal force and indefinite detention against suspected members of al-Qaida and their allies. According to transcripts released by the House Armed Services Committee, the Chairman of the Joint Chiefs of Staff, Gen. Martin Dempsey, testified in 2012 to that effect.
"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," Dempsey said. "In other words, they don't fall under the AUMF authorized by the Congress of the United States. So we would not have the capability to simply find them and kill them, either with a remotely-piloted aircraft or with an assault on the ground. Therefore, they will have to be captured, and we would, when asked, provide capture options to do that."
That fact was cited by Tennessee Republican Senator Bob Corker, who wrote an op-ed in May urging that the 2001 AUMF be expanded to include the Benghazi attackers. He brought it up again during a Senate Armed Services Committee hearing on the AUMF just a few weeks ago -- a committee McCain, Cruz and Graham all sit on.
So Republicans are fully aware that the legal authorities authorizing treatment of al-Qaida or Taliban fighters don't apply to Khattala, because they were told as much.