Osama bin Laden's son-in-law and former spokesman pleaded not guilty in federal court Friday to charges that he conspired to kill Americans.
Sulaiman Abu Ghaith was arraigned with little prior public notice after being apprehended days ago in Jordan.
However, the leader of the U.S. prosecution team against the 1993 World Trade Center bombers said the Obama administration wasted a golden opportunity to glean critical intelligence and damaged the credibility of U.S. military commissions.
Andrew C. McCarthy told WND Congress established that military commissions would be the destination for captured enemy combatants after setting up the system in the wake of Sept. 11, 2001, but the Obama administration found a loophole.
"Public funds were not supposed to be used to bring enemy combatant terrorists into the United States for civilian trial, but the statute we're talking about applied to the people who were in custody in Gitmo," McCarthy explained. "When it fell into the Obama administration's lap that there was someone who fit the definition of an enemy combatant but yet was not at Gitmo, that was a golden opportunity for the administration to end-around the congressional ban and usher an enemy combatant terrorist into the United States to give him a civilian trial."
McCarthy admitted that he and fellow prosecutors have amassed a strong conviction record against terrorist suspects, but possible exoneration is not his biggest concern. He said trials in civilian court always trigger intelligence flows that make our nation more vulnerable.
"You have to turn over discovery, meaning all of our intelligence files under the due process rules. You're also, in effect, rewarding the worst actors," McCarthy said. "Basically, we're taking the insane position that if you're a foreign or even an American enemy combatant, and we happen to catch you in Yemen, we can take you out with a drone strike with no due process, no anything, even if you haven't actually carried out a terrorist attack yet. But if you hit the jihadist jackpot and manage to get to the United States and kill 3,000 Americans, we'll bring you into Manhattan and give you the bells-and-whistles civilian trial. That's a pretty perverse set of incentives to give our enemy."
The case of the first World Trade Center bombings proved to McCarthy that terrorists who have full legal protections in U.S. courts have no incentive to reveal vital information. He said the military commissions system is very different.
"One of the best benefits of the law of war paradigm that we switched to after the 9/11 attacks is that if you treat people like enemy combatants, you can detain them and interrogate them counsel," said McCarthy, noting that this concept has nothing to do with enhanced interrogation techniques.
"I'm talking simply, over a long period of time, to try to question people and glean information. When you're in a terrorist war, as the war that we're in right now is, intelligence is really your No. 1 asset," he said.
According to McCarthy, Obama is squandering chance after chance of picking up valuable intelligence.
"You can't really foresee a traditional end to this war. The only thing you can do is get whatever intelligence is available to you to try to identify the cells and stop the plot. That's how we protect the country," McCarthy said. "Unfortunately, the Obama administration has really adopted a posture where when they can kill or capture, they generally kill. When they capture or when someone falls into their lap as happened this week, they bring the person right into the civilian justice system, which means you don't get to interrogate them."
Is Sen. Rand Paul right about drone strikes on Americans?
Sen. Rand Paul, R-Ky., made headlines just last week, as his nearly 13-hour filibuster shed light on the question of whether a president can target a U.S. citizen on American soil with a drone strike if the person doesn't pose an imminent security risk.
The filibuster triggered a response from Attorney General Eric Holder, who stated the government does not have that power under the Constitution, but McCarthy disagrees.
In the second part of his interview with WND, McCarthy said while Paul is well-intentioned, the Constitution is not on his side.
"The Constitution does not bar attacks on American citizens on American soil. I think it's safe to say that in this conflict, we shouldn't be having attacks on Americans on American soil because 12 years after 9/11, we know what the enemy's capabilities are. We know how the enemy operates," McCarthy said. "There would be no problem amending the authorization for the use of military force to ban attacks on Americans on American soil and leave the Constitution to the side."
McCarthy said those looking for the courts to rule the Constitution upholds Sen. Paul's position in this debate could well be in for a shock.
"The constitutional cases that we've had over the years have held that American citizens who join with the enemy can be detained without trial, subjected to military commissions, executed after military commissions, interrogated without counsel, the whole nine yards," he said. "It doesn't make any rational sense to say that you can treat an American citizen who joins with the enemy exactly as you treat the enemy in every single particular except death."
"The Constitution is there to give broad latitude to the government in the event that whatever power is needed to be marshaled to quell not just the threat that's posed by the conflict we're in now, but any conceivable threat. I can easily imagine several scenarios where we would have enemies invading the United States, attacking the United States, who are joined by people who happen to be American citizens in the United States, where we might have a conflict where it's very conceivable that you would be attacking American citizens," McCarthy said.
"Once you say the Constitution forbids American citizens from being attacked on American soil, the next thing is what about American citizens on foreign soil and then what about foreign citizens on American soil? If it's the Constitution that's the basis of all this, rather than sensible legislation with respect to the authorization for military force, you're basically rolling out a gold mine for our enemies – a gold mine of constitutional protections."
But doesn't being an American citizen carry greater constitutional protections than for a non-citizen? Not as much as you might think, according to McCarthy.
"I think it's a useful populist tool for Sen. Paul, and it will be of legal insignificance to the court," said McCarthy, who argued that courts won't likely approve protecting citizens and not protecting non-citizens.