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Daphne Eviatar: Sending Benghazi suspect to Gitmo would be obstruction of justice

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opinion Bemidji,Minnesota 56619
Daphne Eviatar: Sending Benghazi suspect to Gitmo would be obstruction of justice
Bemidji Minnesota P.O. Box 455 56619

Within hours of the Pentagon’s announcement that the key suspect in the Benghazi attack on the U.S. mission had been apprehended, the usual suspects came out to denounce the Obama administration.


“Ahmed Abu Khattalah should be held at Guantanamo as a potential enemy combatant,” Senator Lindsey Graham, R-S.C., immediately Tweeted last Tuesday.

“A non-U.S. citizen who committed a crime outside of the United States in what can only be defined as an act of terror tantamount more to a war than a criminal-code violation puts me in the camp of arguing for a noncivilian court trial,” Representative Trey Gowdy, R-S.C., the former prosecutor who is leading a House investigation into the Benghazi attack, told the New York Times.

“Obviously he should be put on trial,” Senator John McCain, R-Ariz., told reporters. “I’d bring him to Guantanamo. Where else can you take him to?” he asked - although McCain himself has long advocated for the prison camp’s closure.

An interior view of the U.S. consulate, which was attacked and set on fire by gunmen yesterday, in BenghaziOddly, no one mentioned that civilian federal courts have successfully handled nearly 500 terrorism cases compared to the Guantanamo military commissions, which have convicted only eight individuals since their creation after the Sept. 11 terrorist attacks, with two of those convictions reversed on appeal. As for the civil court system’s 500 cases, 67 involved suspects captured overseas and brought to the United States for trial.

Though many are rushing to criticize the Obama administration, how many of those lawmakers have spent time considering the current state of the Guantanamo detention center? Or watching the circus-like military commission hearings being held there?

Take, for example, the commission hearing held earlier last week in the case of the five alleged masterminds of the Sept. 11 attacks.

Given its importance, you would think this would be the government’s military commissions showcase. Yet two years into pre-trial hearings, in a case that took a decade to even get started, a parade of defense lawyers on Monday complained to the court that they were again being monitored by the government — making it impossible for them to ethically do their jobs.

This time, it wasn’t the CIA, which was presumably the agency that previously installed hidden surveillance equipment in all the rooms where the attorneys met with their clients to discuss their cases in confidence.

Yet the CIA is likely the unnamed government agency that monitors the audio feed of the courtroom.

Attorneys learned early last year that this feed could pick up their confidential attorney-client conversations.

Meanwhile, we still don’t know who in the government had access to the defense teams’ emails and monitored their internet searches — another problem with the commissions revealed within the past year.

On Monday, at least, the attorneys knew it was the FBI that had been monitoring their actions, because at least some of the defense team members asked to spy on their colleagues spilled the beans. But that’s about all they knew.

“I don’t know what I don’t know,” Cheryl Bormann, the Chicago-based lawyer representing defendant Walid bin Attash, told Army Colonel James Pohl, the military judge presiding over the 9/11 case.

“Our linguist was told not to tell anyone he was questioned,” added Khalid Sheik Mohammed’s lawyer, David Nevin, who travels to Guantanamo to defend his client from Boise, Idaho. “So we can’t know who else was questioned and isn’t talking.”

“We now have to represent to our client that we had a spy within our team for a number of months,” added James Harrington, a Buffalo, New York, attorney who represents Ramzi bin al Shibh. “We don’t know what activities that spy did.”

Based on what he’s learned from his colleagues, though, he added: “We know this intrusion into the attorney-client privilege for one or more of our defense teams goes back a year and a half.”

The investigation was first revealed at a Guantanamo hearing in April. Last Monday, special government lawyers flown to Cuba from the Justice Department in Washington specifically to address this issue claimed the FBI has closed its investigation, without explaining what it was about.

The defense lawyers are insisting they need a full investigation to determine the extent of the intrusion and how it affected their cases.

Since discovering the FBI had planted informants on their teams, they said, they’d avoided investigating some aspects of their cases out of concern they were being monitored and could be prosecuted.

“That’s the definition of a conflict of interest,” defense attorney James Connell, who is representing Ammar al Baluchi, told the judge on Monday.

Pohl, the judge, hasn’t yet decided what he’ll do about it.

This is just the latest in a long series of upsets in the 9/11 case, which is only the tip of the iceberg when it comes to the hulking problem of Guantanamo.

With 149 detainees left since the Bowe Bergdahl swap for the Taliban Five, the Cuban island prison is manned by some 2,248 soldiers.

It costs about $2.9 million per detainee to run the prison annually. Though the Wall Street Journal on Wednesday called the government’s latest captive, Abu Khattalah, an “ideal candidate” for Guantanamo, that’s one more very costly burden on U.S. taxpayers.

The real cost in keeping the offshore prison, however, is the way it undermines U.S. national security and damages America’s reputation.

There’s no getting around it: The United States is seen worldwide as maintaining an offshore prison purely so it can violate its own laws.

And that’s exactly what Graham and McCain, as well as Senators Ted Cruz, R-Tex., and Marco Rubio, R-Fla., are proposing. There is no law that allows the United States to send a man captured in a country we’re not at war with, who’s not a member of the Taliban or al-Qaida, to a detention center created to hold “enemy combatants.”

Khattalah is not an “enemy” under the law: He’s not a member of the armed forces of any army or organized armed group. He’s a suspected criminal, accused of leading an attack on the U.S. consulate in Benghazi that left a U.S. ambassador and three embassy personnel dead.

Daphne Eviatar is a Reuters columnist.