Addressing the crime of terrorism in a framework of war itself represents one of the most significant policy shifts the United States made with respect to post-9/11 national security matters. In some cases, albeit on a selective basis, the U.S. continues to treat terrorism as a crime within a law enforcement paradigm–as it did prior to the 9/11 attacks. For the most part, however, the nation has adhered to a military approach toward the crime of terrorism in the dozen or so years since the 2001 attacks; an approach that uses the language and logic of the global "War on Terror" declared by the Bush administration, as well as Congress, in the wake of 9/11 (Hafetz, 2011).
Prior to 9/11, federal criminal prosecution–or federal immigration law and regulations under certain circumstances–was the sole method available to U.S. law enforcement for the long-term detention of terrorist suspects. Since 2001, however, the country has set up an alternative process of detention and prosecution via military commission (Hafetz, 2011). Guantanamo Bay is the most notorious of the sites associated with the military detention and prosecution of terrorism suspects; however, the system is not limited to any particular location or facility and has been used at Bagram Air Base in Afghanistan as well as at secret "black sites" maintained by the CIA for the detention and interrogation of terror suspects (Hafetz, 2011).
The system established under the military commission differs significantly from the civilian system of criminal justice in the United States. Defendants charged in the military paradigm are afforded fewer procedural safeguards, as well as basic mechanisms of due process. In addition, the government, sitting in the prosecutorial seat, enjoys a much lower evidentiary burden than it would in civilian court. Secrecy is tolerated; what constitutes probable cause, when it is even called into question, is considerably expanded; and coerced testimony, due to lack of constraint on interrogations and interrogation methods, is not uncommon. Perhaps the most significant differences between the military and civilian systems are the extreme limits on judicial review and the indefinite length of pre-trial confinement (Walton, 2010).
In contrast to other suspected Qaeda terrorists, Abu Ghaith will presumably receive the same type of trial that any civilian, who has been charged criminally, would receive under federal law. Given the amount of scrutiny that Abu Ghaith's trial is likely to draw–not simply because of who he is but for what this departure from the military commission proceedings represents–the defendant may actually receive a "more fair" trial than an average citizen, as all points of procedure and due process will likely be checked and rechecked as the case progresses.
Abu Ghaith will benefit from these differences as a defendant. Although his incarceration in a federal holding facility in New York City may be less pleasant than it would be at Guantanamo, it will certainly be less indefinite. If he is found not guilty, the defendant will be allowed to go free without chance of further investigation or prosecution because jeopardy will have been attached.
In the event he is found guilty, Abu Ghaith could still face the death penalty under the Antiterrorism and Effective Death Penalty Act of 1996, which was passed in the wake of the 1993 World Trade Center and 1995 Oklahoma City bombings ("Antiterrorism," 1996). However, his death penalty verdict would be subject to appeal and all the mechanisms for judicial review available to those convicted under the civilian criminal justice system.
The defendant will also face some challenges in civilian court that may, in fact, be more unpleasant than the circumstances in which he would find himself under the military system. For one, it is likely that a jury of Abu Ghaith's "peers" will not be empanelled. So, regardless of the protections this may afford a typical citizen, it may not be of benefit to Abu Ghaith. Under the military system, no civilian jury is organized. It will also be difficult to find impartial jurors in New York City, at a courthouse just a few kilometers from Ground Zero. Abu Ghaith, if he takes his case all the way to trial, will likely have to face survivors and the families of those who died in attacks. He would have been insulated from such personal stories at Guantanamo.
The party receiving the greatest benefit from Abu Ghaith's civilian trial may actually be President Obama. Andy McCarthy, a former federal prosecutor for the Southern District of New York–where Abu Ghaith was arraigned–believes this to be the case (Meyers & Walter, 2013). A senior fellow at the National Review Institute and author of Spring Fever: The Illusion of Islamic Democracy, characterized the decision to try Abu Ghaith in civilian court as alternatively shrewd or sneaky. According to McCarthy,
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