A trial in New York City that is currently underway is generating international headlines. It is the on-going prosecution of Suleiman Abu Ghaith. Ghaith is more popularly known as the son-in-law of the late head of al-Qaeda, Osama bin Laden, through his marriage to bin Laden's daughter Fatima. Arrested in Jordan in March 2013 and then turned over to the Americans to be taken to the United States to face trial, Ghaith served as a spokesman and propagandist for al-Qaeda. He appeared in some of the organization's videos, including sitting next to bin Laden and Ayman al-Zawahiri in a video that was released shortly after 9-11. The charge against him, which he has pleaded not guilty to, is conspiring to kill Americans. The considerable media attention has arisen specifically because of the defendant's connection to bin Laden and the insights that have been revealed about the deceased leader, the 9-11 plot, and the operations of al-Qaeda. What the media has largely ignored is that the trial is potentially ground-breaking not over whether or not Ghaith will be convicted, but rather in how it represents an alternative path to justice, not just on the part of the Barack Obama administration but even for the George W. Bush administration right back at the beginning or big bang of the war on terror. It is not a new course but rather represents a return to how the United States government usually dealt with international terrorism directed at it prior to the attacks of 11 September 2001. Then the dominant model of counter-terrorism was a criminal-justice one involving treating foreign terrorists not as soldiers engaged in a war but as criminals to be charged, put on trial, and, in a highly desirable outcome, convicted by a jury. That was before 9-11; after, arrived a decidedly different approach courtesy of the Bush administration. Hence, the contrast could not be any greater in terms of paths followed than the disparate treatments of Khalid Sheikh Mohammed and his nephew Ramzi Yousef. The latter was arrested in 1995 in Pakistan, returned to the United States, convicted of a number of terrorism offences including in relation to the 1993 bombing of the World Trade Center and sentenced to life in prison without the possibility of parole. In contrast, his uncle ended up in secret prisons where he was water-boarded by the Central Intelligence Agency 183 times in order to gain information about al-Qaeda operations. After that, he was transported to Guantanamo Bay where he remains still waiting to face justice for the 9-11 attacks of nearly 13 years ago that he allegedly helped mastermind. At one point, it looked as if these two different legal paths travelled would actually converge in that KSM, like his nephew, would face justice in an American courtroom. Barack Obama had long critiqued the divergence from American legal values of the Bush administration's approach to counter-terrorism. Once elected, he had the opportunity to bring about change. In November 2009, his Attorney-General, Eric Holder, announced that KSM and four other Guantanamo prisoners would be transferred to a civilian court in New York so that they could face justice in the form of a trial by jury. The United States Congress had other ideas, however. Reflecting negative public opinion about the prospect of potential terrorists being brought to New York, the legislative body Imposed roadblocks on the plans to try the men in a civilian court. In the end, this stance forced the capitulation of the Obama administration. Holder threw up his hands in April 2011 and announced there would be no trials in New York City but instead justice would once again be administered through military commissions as the Bush administration had originally envisioned. Whether he is found guilty or not, the trial of Suleiman Abu Ghaith represents not merely the route not taken but, more significantly, a legal course to free the United States from the shackles of the war on terror.
