Life Sentence for Sulaiman Abu Ghaith Discredits Guantánamo’s Military Commissions

27.9.14

On Tuesday, in a courtroom in New York City, a long-running chapter in the “war on terror” came to an end, when Sulaiman Abu Ghaith, 48, a Kuwaiti-born cleric who appeared in media broadcasts as a spokesman for Al-Qaeda the day after the terrorist attacks of September 11, 2001, received a life sentence based on the three counts for which he was convicted after his trial in March: conspiracy to kill Americans, providing material support to terrorists and conspiring to provide material support to terrorists.

The life sentence came as no surprise, as it is permissible for the main conspiracy charge, although Abu Ghaith’s lead defense lawyer, Stanley L. Cohen, had, as the New York Times described it, “sought a sentence of 15 years, saying in a court submission that his client was facing ‘the harshest of penalties for talk — and only talk.'” The Times added that Cohen had likened Abu Ghaith to “an outrageous daytime ‘shock-radio’ host, or a World War II radio propagandist for a losing ideology.”

In court, as the Times also noted, Cohen “emphasized that his client had played no role in specific acts of terrorism,” but the government had argued otherwise, stating in a sentencing memorandum that there was “no fathomable reason to justify a sentence other than life.”

During the court procedings, John P. Cronan, a federal prosecutor, had told the judge, Lewis A. Kaplan, that, although Abu Ghaith “had not been an ‘operational terrorist,’ he was ‘just as valuable, if not more so, than the person who strapped a suicide vest on himself and detonates a bomb.'”

That, I believe, is a dangerous argument to make, in a country that values freedom of speech, although it is one that has surfaced before in relation to terrorism since the 9/11 attacks — in the life sentence at Guantánamo in November 2008, after a trial by military commission, of Ali Hamza al-Bahlul, a Yemeni who made a promotional video for al-Qaeda (a sentence that has since been largely — though not entirely — overturned and discredited by an appeals court), and in the killing by drone attack of Anwar al-Awlaki, a US citizen, in Yemen in September 2011. The US tried to portray al-Awlaki as a “regional commander” of Al-Qaeda’s Yemen-based offshoot, Al-Qaeda in the Arabian Peninsula, although the evidence actually suggests that he was nothing more than a propagandist, and was killed because of the success of his propaganda, which, largely through the internet, disseminated a message of anti-American jihad in the English language.

Nevertheless, Abu Ghaith, who was held for over ten years under a form of house arrest in Iran before being freed in Turkey, and ending up in US custody last year after being deported to Jordan, failed to attract any sympathy from Judge Kaplan.

“You sir, in my assessment, are committed to doing everything you can to assist in carrying out Al-Qaeda’s agenda of killing Americans — guilty or innocent, combatant or noncombatant, adult or babies, without regard to the carnage that’s caused,” Judge Kaplan said at Abu Ghaith’s sentencing.

He added that Abu Ghaith had shown “no remorse whatsoever,” nor had expressed any doubt “about the justification for what was done.” He also said that Abu Ghaith continued to threaten the US, and in fact, as the Times also noted, Abu Ghaith had “offered no apology for his actions and did not ask for leniency. Instead, he told the judge that he would not ‘ask for mercy from anyone except God,’ and warned of the repercussions that his imprisonment would bring.”

“Islam is the religion that does not die when its followers die or get killed,” he said, “and it does not come to a stop when they get captured or imprisoned. At the same moment where you are shackling my hands and intend to bury me alive, you are at the same time unleashing the hands of hundreds of Muslim youth, and you are removing the dust of their minds. Soon, and very soon, the whole world will see the end of these theater plays that are also known as trials.”

Following the sentencing, Eric Holder, the Attorney General, issued a statement in which he said that the “trial, conviction and sentencing have underscored the power” of civilian courts “to deliver swift and certain justice in cases involving terrorism defendants.” He added, “We will continue to rely on this robust and proven system to hold accountable anyone who would harm our nation and its people.”

Just two days later, Holder announced his resignation, although his words should continue to have a resonance. One of the perceived failures of his time as Attorney General was when, having announced in November 2009 that Khalid Sheikh Mohammed and four other men accused of planning and involvement in the 9/11 trial would be tried in federal court in New York, he was made to back down when opportunistic critics attacked the administration, and President Obama capitulated to the criticism.

As Eric Holder prepares to leave office, Abu Ghaith’s sentence at least vindicates his belief in federal court trials for those accused of terrorism, in contrast to the cheerleaders for torture and military commissions at Guantánamo. As the New York Times described it, “The trial had been widely watched, in part because the decision to prosecute Mr. Abu Ghaith in the civilian court system had been criticized by some members of Congress, who argued that he should have been held by the military for intelligence purposes.”

When the hysteria over the planned 9/11 trial blew up in late 2009, Jane Mayer of the New Yorker interviewed Holder, and wrote that:

[Holder was] determined not to capitulate on the idea of holding a 9/11 trial. “I don’t apologize for what I’ve done,” he told me at one point. “History will show that the decisions we’ve made are the right ones.” Holder said that he regarded trying Khalid Sheikh Mohammed in a courtroom as “the defining event of my time as Attorney General.”

Unfortunately, Eric Holder — and the Obama administration — elected to keep the military commissions, and five other prisoners at Guantánamo (including Ali Hamza al-Bahlul, whose dubious conviction was mentioned above) were charged at the same time that the 9/11 trial was announced, which was a gift to critics of the trial — and supporters of Guantánamo. It is good that no one new has been sent to Guantánamo under Obama and Holder, but it remains a great shame that the military commissions crawl on, despite being thoroughly discredited, when federal courts are so obviously capable of delivering trials and sentences to those accused of terrorism.

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

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16 Responses

  1. Andy Worthington says...

    On Facebook, Asiya Muhammad wrote:

    no evidence and a life sentence is hardly reconisable due process

  2. Andy Worthington says...

    Well, there’s copious evidence that he was a spokesmen for Al-Qaeda immediately after 9/11, when he was sitting with Osama bin Laden and Ayman al-Zawahiri, so he’s not an innocent bystander, Asiya, but I’d say that a life sentence is not appropriate for a propagandist. He’s luckier than Anwar al-Awlaki, though. Despite being a US citizen, he was killed by a drone attack, even though it hasn’t been established that he was anything more than a propagandist.

  3. Andy Worthington says...

    I’m posting early today, my friends. I’m out this evening, rehearsing (singing and playing guitar) for a gig tomorrow evening at the Hill Station community cafe in Telegraph Hill, London SE14. If you’re in the area, my group – the Four Fathers – will be playing at 7.30pm, as part of the evening session of an event celebrating the 150th anniversary of the International Workingmen’s Association, organized by People Before Profit. Details here: http://peoplebeforeprofit.org.uk/
    Here’s the Hill Station: http://www.hillstation.org.uk/
    And the wonderful Rivoli Ballroom, where events are taking place in the daytime (from 3pm): http://www.therivoli.co.uk/

  4. John Goss says...

    Yes, I agree. When somebody continues to incite by words actions that bring harm to people and communities. The sentence is far too harsh but not nearly as harsh as those of Shaker Aamer and Emad Hassan who although being told seven years ago they had done nothing wrong and ‘cleared for release’ (whatever that term means) they are still in Guantanamo. Why? Many believe it is because they have been tortured. The United States, out of shame, are keeping them there so they cannot tell the world how sick their country has become.

    I noticed Eric Holder retired directly after this trial. It reminded me that here too our judges, and those who head inquiries, deliver something very favourable to government as a last goodwill gesture and retire. I wrote about it a couple of years ago.

    http://johngossip.blogspot.co.uk/search?q=judge+john+deed

  5. John Goss says...

  6. Andy Worthington says...

    Good to hear from you, John, and yes, men like Shaker and Emad Hassan are also suffering, although I think it’s important that in their case there’s no prospect of trials, as they did nothing that can be tried in a court of law – like the majority of the men held at Guantanamo, in fact, who are almost entirely either civilians or soldiers, not alleged terrorists.
    I do, however, think it’s important for people to be aware of the cases where free speech has been criminalized, like Ali Hamza al-Bahlul, and, largely it seems to me, Sulaiman Abu Ghaith – or made the basis for extrajudicial execution, as in Anwar al-Awlaki’s case.

  7. Andy Worthington says...

    Ann Alexander wrote:

    I heard that Adel Bari had pled guilty, Andy but haven’t read anything in the media.

  8. Andy Worthington says...

    Hi Ann,
    Yes, Adel Abdul Bary (one of five men extradited to the US from the UK in October 2012, after years of imprisonment without charge or trial – 14 years in Bary’s case) delivered a guilty plea in a New York court last Saturday. The Independent reported it: http://www.independent.co.uk/news/world/middle-east/father-of-british-islamic-state-fighter-admits-role-as-alqaeda-spokesman-after-1998-us-embassy-bombings-9745879.html
    Dodgy reporting mentioned his son, a rapper described as “a British jihadist believed to be fighting with the Islamic State (Isis) in Syria.”
    Judge Kaplan (NYC’s terror judge, the same as in Abu Ghaith’s trial) didn’t immediately accept Bary’s plea deal last week, whereby he was supposed to get 25 years.
    From the article: “The older Bary faces a maximum of 25 years in prison under a plea deal, which was not immediately accepted by US District Judge Lewis Kaplan, who raised concerns about hundreds of more serious charges against him that have not been proved. ‘You can well appreciate why I have questions in my mind,’ Kaplan said. The judge gave the Government and Bary’s lawyers one week to submit letters explaining why he should accept the deal and if it is rejected, the case may go to trial.”

  9. Martin Gugino says...

    I think it would be proper to consider what would happen to an American who said exactly the same things. The rule, which I think is right, is that the speech can be stopped (and the speaker prosecuted – for reckless endangerment I suppose) only if it leads to immanent (lawless) action (and I think direct harm would be included) such as shouting FIRE in a crowded theater. Where there is time for discussion of the ideas or arguments and where those can be opposed, then the speech is to be allowed (and meaning not prosecuted). Is it the defendant’s fault that whatever he said so resonated with his hearers that the US felt they were a danger, and that the US had essentially no access to those ears (one can argue because of the clear demonstration that we did not care who they were or what they thought.)
    I think the comparison of what would have happened to an American in say, Toledo, who said those things, as compared to this guy, should be discussed.
    And compare with http://en.wikipedia.org/wiki/Clement_Vallandigham

  10. arcticredriver says...

    Thanks Andy!

    To my way of thinking the whole public record on Guantanamo, and other guys who face associated charges, brings home to me that a huge distinction should be made between justice and vengeance. It really surprises me that people who really should know better, either don’t seem to recognize the distinction, or think it is too subtle to be part of the public debate.

    No one likes seeing someone who, on the surface, seems obviously guilty, having the charges against them dropped on a “legal technicality”. Unfortunately for the hardliners in dishing out the harshest possible punishments, it seems to me that the legal technicality for not charging, or dropping charges, against most of the Guantanamo captives is that they were genuinely innocent men.

    Fouad al Rabia — who I believe you met on your trips to Kuwait — he strikes me as a genuinely innocent man. Some hardliners who weren’t prepared to actually look fairly at the case against him, like the Prosecutors who filed war crime charges against him, may regard him as someone who was only technically innocent, because they regard “material support for terrorism” as a real crime, and resent that it can’t be applied retroactively. I think you probably agree with me that there is nothing on the public record to suggest he ever supplied, or even considered supplying material support or moral support, to OBL or al Qaeda, because he was just what he represented himself to be: (a) a charitable man, who was in war-torn Afghanistan on charitable work; (b) a moderate muslim who neither liked or respected OBL, even before he learned about the ugly attacks on 2001-9-11; (c) an America-phile, who studied in America, loved America, and played a key role in American firm Boeing securing hundreds of millions of dollars of orders from Kuwait’s national airline.

    He described giving his host a small present — a traditional gesture in the muslim world, and of course among christians, too. He gave his host a small dual use item that was a combination incense burner, that could also be used as a pocket warmer in winter. He described how, unknown to him, his host was a fan of OBL, and gave the incense burner/pocket warmer to OBL. He described how, on one of the occasions he was introduced to OBL at a social event OBL described how useful several thousand pocket warmers would be to his followers, and dropped a broad hint that Fouad al Rabia should ship him several thousand pocket warmers as a gift. Fouad al Rabia had this gift of a single pocket warmer, that he had no idea was going to be re-gifted to OBL, used as the justification of characterizing him as an “al Qaeda facilitator”.

    Could he have been convicted before a Military Commission? Could he have been bullied into agreeing to a plea deal, to uttering a false confession, to making a false guilty plea, as his only way to get a fixed release date from Guantanamo? Yes, I think it was likely, as it seems to be have been having a sensible judge review his habeas corpus file that led to his repatriation.

    I have mentioned before how I came across a ten paragraph summary the DIA produced, to back up the claims that the Guantanamo interrogations had brought the USA an “invaluable” stream of intelligence. I had read the documents from Fouad al Rabia’s CSRT, and concluded his account was truthful and substantiated al Rabia’s total innocence. I think I have mentioned before how deceitful the DIA document’s description of al Rabia was. He had willingly acknowledged meeting Osama bin Laden on four occasions, all at public social events, where OBL left a bad impression on him. Yet the DIA document described how the wily interrogators had weaseled out a confession from one man that he met OBL four times.

    It is unfortunate that so many of the instances when commentators and public officials call for “Justice” they really seem to be calling out for “Vengeance” — a kind of blind vengeance, where the actual guilt of the party being punished isn’t relevant.

    Andy, as you know, but your readers don’t know, I have been one of the wikipedia’s most prolific contributors. I saw it rise to unexpected prominence, and played my part in that rise. And I continue to participate during this sad downhill portion. The “golden age” of the wikipedia ended more than half a decade ago. Why? Bad governance mainly. It has evolved a huge, baroque and inconsistent set of rules — and that huge, baroque and inconsistent set of rules is abused every day to erode the inherent fairness and impartiality that was one of the golden age wikipedia’s founding principles.

    In particular, the fan-boys who surrounded Jimmy Wales, usually described as the wikipedia’s “founder” included a rule usually called IAR — “ignore all rules” — which authorized decision makers to ignore rules when they thought following them violated “common sense”.

    With the creation of the unjust military commission system, and the attempts to retroactively criminalize actions that weren’t crimes at the time they were committed we see the USA make the same crippling mistake as the wikipedia.

    Am I correct that Abu Ghaith’s first service to OBL and al Qaeda, the service that really triggers the quest for vengeance against him, occurred in the days following that horrible attacks on 2001-9-11? Hadn’t he arrived at one of the training camps, as a muslim scholar previously unaffiliated to al Qaeda? Wasn’t he paying that visit so he could go on record with an opinion as to whether al Qaeda was or was not a respectable Islamic organization? Wasn’t his plan to stay a week or two, then go home and write his conclusions, positive or negative, while remaining unaffiliated to OBL and al Qaeda?

    Didn’t events overtake him? Didn’t he learn of the attacks while he was on his third party inspection visit? Didn’t the attacks trigger a change in his plans, making it impossible for him to leave? If I have the right guy, he would have found himself surrounded by a camp of crazy-eyed zealots, who were all convinced OBL had led al Qaeda to commit not a terrible crime, but a long overdue act of retribution.

    I think we could all ask ourselves, if we were surrounded by a crowd of zealots would we have the strength of character to tell those zealots they had violated one of their religion’s key principles, by attacking civilians? Telling them this may have been a kind of suicide, may have triggered suspicions he was a Mossad or CIA agent, may have led to torture, followed by an execution.

    Patti Hearst came down with Stockholm Syndrome, joined her kidnappers, and eventually robbed banks with them. If I have the right guy, then, when he made the positive comments he was an involuntary guest, who may have been like Patti Hearst, and made those positive comments when under Stockholm Syndrome. If he was prepared to renounce the comments in 2013 that would have been the defence I would have used.

    What role should the victims, and their surviving relatives play, in choosing a convict’s sentence? I don’t think we should yield up to them a predominant role. Here in Canada the justice system allows some flexibility in the sentencing of traditional native peoples. If the crime is minor enough that some kind of suspended sentence is appropriate the exact terms of the sentence are entrusted to a native sentencing circle. The victims get a say, but so do other members of the community. Compromises are considered, to arrive at a sentence that seems fair to everyone. Restitution is considered. After hearing input from everyone even the perpetrators regard their sentences as fair. As I understand it the native sentencing circles are statistically less likely to lead to recidivism, and since the sentence was a compromise, arrived at after a discussion that included everybody, everyone felt satisfied.

    In the USA the thirst for vengeance is not subjected to others making a case for leniency.

    If I were another American I would remind those with a thirst for vengeance of how they have a three branch system, and that the President, as leader of the executive branch, has broad powers, in war-time. I would remind them that in late 2001, President Bush was advised that the USA might capture indiviiduals who had imminent knowledge of impending attacks. He was advised that, some security officials thought it was so important to learn whether they knew of an impending attack, so it could be prevented, that their right to protection again torture and self-incrimination should be set aside. He was advised that, after setting aside these captives’ rights to be protected against torture and self-incrimination they could never face trial in the US justice system.

    As I understand it, President Bush could have forgotten about interrogating KSM and the others for intelligence reasons, and have kept him in the law enforcement pre-trial detention, where his only interrogators were law enforcement officials, whose interrogations were intended solely to try to secure a conviction at a fair trial. As I understand it, many legal scholars thought that if President Bush ordered torture, then trial and conviction were off the table.

    I think some legal scholars thought that torturing KSM and his associates, put the USA in the unenviable position of having only law of war justifications for detaining him, implying that he would have to be set free when the USA pulled out of Afghanistan.

    Even if KSM was convicted fairly, at a civilian trial, with no use of torture or other questionable techniques, if I were POTUS I would commute any death penalty, because I would want him to be available to play a rle in resolving the murky record if new information emerged casting doubt on some elements of the narrative.

    Did KSM cut of the head of the journalist [Daniel Pearl]? He confessed to doing so. But Pakistan tried, convicted and sentenced another man for that crime. If KSM is executed it will be harder to arrive at the real story — which is more important than vengeance.

  11. Andy Worthington says...

    Thanks for your thoughts, Martin. I think your question is worthwhile for people to consider. Thanks also for the link to the story of Clement Vallandigham, subjected to a trial by military commission during the civil war. May I also recommend the writings of my friend and colleague Todd Pierce about the military commissions in the civil war and how those precedents are being twisted to justify what is happening now: http://consortiumnews.com/2013/08/21/making-the-world-the-enemy/

  12. Andy Worthington says...

    Thanks, arcticredriver. Fascinating comments – and great to hear from you, as ever. Thanks also for mentioning the case of Fouad al-Rabia, which remains emblematic of so many of the problems of intelligence-gathering at Guantanamo. My major story about him was here: http://www.andyworthington.co.uk/2009/09/30/a-truly-shocking-guantanamo-story-judge-confirms-that-an-innocent-man-was-tortured-to-make-false-confessions/
    I confess that I haven’t studied Abu Ghaith’s travels in sufficient detail to confirm or deny the points you make, but I remain convinced that he had no operational knowledge of 9/11 or other attacks, and that therefore his sentence is based on his propaganda for al-Qaeda. To me it looks like he did so willingly, although your impressions could be correct, but even if he was willing a life sentence seems particularly harsh.

  13. arcticredriver says...

    Andy, here is something interesting. I take a look at The Wire one of the two weekly newspapers the DoD publishes at Guantanamo. It is the one published by JTF-GTMO. The Naval Base itself has a weekly newpaper, the Guantanamo Gazette. It is surprising how most weeks, in recent years, whole months will go by without The Wire even mentioning the prison.

    But this month’s issue has an article on the obligations of all the GIs, even the most junior, to save all documents.

    It is surprising because we know that Colonel Bogdan totally ignored this rule, and authorized the destruction of videos of the riot squad’s beat-downs. When the US justice system ordered the preservation of evidence the videos of the riot squad’s beatdowns would have been precisely the kind of evidence they would have most particularly wanted preserved.

    I think it is extremely unlikely, but I think he deserves to spend the rest of his life in Leavenworth. I am sure he would be convicted if evidence of his perjury and unauthorized brutality were read into evidence at a fair trial. The USA shouldn’t try to apply the harshest justice to non-citizens unless it applies equally harsh justice to its own war criminals.

  14. Andy Worthington says...

    Thanks, arcticredriver. Great to hear from you, as ever, and thanks for the information about what officially constitutes the responsibilities of all the military personnel at Guantanamo. In reality, unfortunately, we now live in a world of horrendous double-speak, where the opposite of what is claimed is true, hence Col. Bogdan’s actual actions. How nice to imagine a fair trial for him! Unfortunately, though, it seems completely out of the question. This, after all, is the place where the operations are described, with a straight face, as being “Safe, Humane, Legal and Transparent.”

  15. Thomas says...

    The propagandist deserves punishment, yes -but not life imprisonment in a US prison.

  16. Andy Worthington says...

    Thanks, Thomas. I’m glad you agree. The hard-liners have stolen the moral high ground to such an extent that it can appear treasonous to oppose their conclusions. However, I sincerely believe Judge Kaplan is part of the problem, and that it was not demonstrated that Abu Ghaith was operationally involved with al-Qaeda.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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