Case of Al-Qaeda Suspect Captured in Yemen Seen As Test of Trump’s Plan to Send New Prisoners to Guantánamo

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For the New York Times on Monday, in ‘Case of Captive in Yemen Could Test Trump’s Guantánamo Pledge,’ Adam Goldman, Matt Apuzzo and Eric Schmitt wrote about the case of Abu Khaybar, an al-Qaeda suspect, around 40 years of age, who was seized in Yemen last fall, and “is being held there by another country, according to four current and former senior administration officials.” The authors added that “[t]he circumstances of his detention are not clear, but he is wanted on terrorism charges in New York.”

However, Abu Khaybar may also be wanted by Donald Trump, to send to Guantánamo, to follow up on his pledge to send new prisoners to the prison. As the authors note, his “suspected affiliation with Al Qaeda gives the United States clear authority to hold him” at Guantánamo, where the detention of prisoners is approved by the Authorization for Use of Military Force, passed in the days after the 9/11 attacks, which authorizes the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

As the Times noted, the new Attorney General, Jeff Sessions, “has repeatedly said that terrorists should not be prosecuted in civilian courts,” a worrying stance given that the military commissions at Guantánamo have been a colossal failure, while federal courts have proven more than capable of successfully prosecuting terrorists, something they have done throughout the last 15 years, even when the Bush administration was most aggressively touting Guantánamo as a new paradigm of detention.

Sending Abu Khaybar to Guantánamo would begin to fulfill Donald Trump’s stated intention, in a recently leaked draft executive order on Guantánamo, to send “newly captured terrorism suspects” to the prison, for the first time since March 2008. President Obama failed to close Guantánamo as he promised, but, to his credit, he unwaveringly refused to send any new prisoners there, despite persistent pressure from Republicans.

However, as the authors of the Times article note, “trying to send Mr. Khaybar to Guantánamo Bay would put the administration at odds with career Justice Department prosecutors and FBI agents,” who reiterate what I discussed above — that federal courts “have proved more adept than military commissions at handling terrorism cases.” The authors point out that “[t]he military tribunal system has been troubled by setbacks,” and that, “A decade and a half after the Sept. 11, 2001, terrorist attacks, none of the men charged in that plot have even gone to trial.”

Glen A. Kopp, a former federal prosecutor in Manhattan told the Times that sending new prisoners to face military commission trials at Guantánamo “would be extremely demoralizing to the efforts of prosecutors and law enforcement dedicated to eradicating terrorism around the world.”

In addition, a “former senior Obama administration official who helped review the case” told the Times that “Justice Department prosecutors have expressed confidence in internal discussions that they can win a criminal trial against Mr. Khaybar.”

The Times also explained that Abu Khaybar “is one of many people the United States is trying to track, capture and prosecute,” adding that two US security officials said his case “had come to a head first, with others expected to follow.” No one knows if Jeff Sessions “has been briefed on the case since taking office last week,” or if the Trump administration will follow the pattern established by President Obama, who “decided whether to bring terrorism suspects to the United States after hearing from senior officials across the government.”

What is also unknown is the extent to which Donald Trump will be “willing to push his international counterterrorism allies.” The Times noted that allies including Saudi Arabia, the United Arab Emirates and Yemen “play a crucial role in the military campaign against Al Qaeda’s branch in Yemen,” but that some allies “are likely to resist being seen as helping to send a prisoner to Guantánamo Bay.”

The Times also noted that some allies, including countries in Europe, which provide crucial intelligence to the US, have explicitly “sought assurances that their collaboration will not result in prisoners being sent to Guantánamo.”

Turning to Abu Khaybar himself, the Times noted that he “is believed to be Sudanese,” but that little is publicly known about him. Former intelligence officials said that he “has longstanding ties to Al Qaeda,” with whom he was affiliated when he lived in Sudan. However, Osama bin Laden moved al-Qaeda to Afghanistan in 1996, when Khaybar would only have been around 20 years old. Officials who spoke to the Times added that, at some unspecified date, “he made his way to Somalia and then Yemen around 2015.”

The officials who spoke to the Times said that, after Abu Khaybar’s capture, his identity “was not immediately established,” but eventually intelligence officials “determined his name, and FBI agents pushed to prosecute him in New York.” Some officials said that they had “hoped to transfer him before the end of the Obama administration, but the complexity of the case and the review process made it impossible.”

Nevertheless, the Times noted that, despite the enthusiasm of Donald Trump and Jeff Sessions for sending new prisoners to Guantánamo and prosecuting them in military commission trials, the Justice Department “has become accustomed to winning important cases against foreign terrorists in federal court,” and, in addition, the FBI “has been working alongside commandos from the military’s Joint Special Operations Command to collect evidence” for prosecutors in federal court, who have a track record of securing “cooperation from admitted terrorists, such as Ahmed Abdulkadir Warsame,” who have provided information that “has then been used to prosecute others,” and, more worryingly from a legal point of view, to “launch drone strikes.”

The Times also pointed out how some of the successful prosecutions in federal court under the Obama administration included that of Osama bin Laden’s son-in-law, Sulaiman Abu Ghaith, who received a life sentence in September 2014, and Abid Nasser, born in Pakistan, who received a 40-year sentence in November 2015 for planning to bomb a shopping center in Manchester, and for plotting an attack on the New York Subway. In 2014, Irek Hamidullin, described by Charlie Savage of the Times as “a Russian army defector who joined the Taliban and was captured after a (spectacularly unsuccessful) assault on American and Afghan forces in Afghanistan in November 2009,” also received a life sentence, in Virginia, in what the Times this week described as “the first example of a foreign combatant captured on the battlefield in Afghanistan being prosecuted in federal court,” decision that led his lawyers to launch an appeal (ultimately unsuccessful), but on the correct basis that, as federal public defender Geremy Kamens told a three-judge panel of the 4th U.S. Circuit Court of Appeals. “The bottom line is that Mr. Hamidullin is a soldier, not a criminal.”

In contrast, the Times noted, Jeff Sessions criticized federal court trials as a Senator because, he said, “it gave terrorism suspects the right to lawyers, the right to remain silent and the right to a speedy trial,” and “[all] of those make it harder for interrogators to extract intelligence.”

This is the kind of tough talk that plays well in Republican circles, but that is much more difficult to defend as an active policy, as it tacitly endorses the use of torture.

It remains to be seen what will happen to Abu Khaybar, but, generously, the authors of the Times article noted that Sessions “has some wiggle room” in the case, being on record as stating that “foreign terrorists should be treated as prisoners of war ‘at least initially,’ and then a decision could be made later ‘as to whether to move them in federal court.’” The authors also explained how Abu Khaybar “has been held for months in Yemen, where he is most likely subject to questioning by the local authorities,” the extent of which is unclear, but which could lead to the US not seeking his transfer but allowing another government to handle his case. “That,” they wrote, “would be an unusual move for a case involving charges in American courts,” but it is an option.

More likely, I suspect, is the federal court option, and I have to hope that is chosen instead of the option of sending him to Guantánamo to face a military commission, as that is one door that should remain firmly shut.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — 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).

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