Terrorism Trials & Investigations

Comments on and Link to the Sulaiman Abu Ghaith Indictment

By Robert Chesney
Thursday, March 7, 2013, 5:19 PM

Further to my last post on the capture and prosecution of Sulaiman Abu Ghaith, I now want to share a few thoughts on the prosecution side of things.

The indictment has been unsealed, and is now available here.  It appears to be the 13th superseding indictment in the long-running case that began in 1998 after the East African embassy bombings--98 Cr. 1023--which in practical terms means more or less that Abu Ghaith has been lumped in with the existing al Qaeda-as-murder-conspiracy case.  This particular instrument charges one count, for now: a conspiracy to kill Americans in violation of 18 USC 2332(b). In support, the indictment alleges the following overt acts: that Abu Ghaith has been part of al Qaeda since at least early 2001, that he urged others to swear loyalty to bin Laden, and that on the morning of September 12, 2001 he joined al Qaeda's leaders in a statement against the United States, and that he gave a separate speech of his own warning of more attacks to come.

This description illustrates a point about which I once wrote at some length: a conspiracy charge does not depend on linking the defendant to a particular plot; it can function as a sort of status-based charge, and this is precisely what makes it a powerful tool for counterterrorism purposes.   Of course, material support charges can be useful for this as well; possibly the dates of Abu Ghaith's activities made that impossible in this instance (due to earlier restrictions on the extraterritorial application of 2339A and 2339B).

Some readers no doubt are wondering why such a defendant is not being funneled into the military commission system.  Setting aside whether the administration ever would move a person into Guantanamo, it is of course quite uncertain at the moment that the commission system has the capacity to charge conspiracy in this instance.  Between that, the various transfer restrictions Congress has larded GTMO with, and the administration's apparent determination to be able to say that at least it did not add to the GTMO population during its time, there's little surprise the commission option was not used here.  (Not that there is any reason a commission has to occur at GTMO...)

In any event, the arraignment will be tomorrow morning at 10 eastern, before Judge Lewis Kaplan (for whom I am proud to say I once clerked, and who presided over the much-discussed Ghailani case a few years ago).  My prediction: life sentence.