The arrest and detention of Osama Bin Laden's son-in-law, Suleiman Abu Ghaith, has reopened the question of whether top al Qaeda figures captured by the U.S. should be tried in civilian courts or in military commissions at Guantanamo Bay.By law, Abu Ghaith should have been transferred to military detention under the provisions of the Fiscal Year 2012 National Defense Authorization Act, which requires all members of al Qaeda or associated forces to be taken into military custody at least temporarily. But the NDAA provides a wide carve out for the commander-in-chief's discretion in war time. And the President is authorized to waive the requirement entirely if he certifies to Congress that end-running the law is in the national security interests of the United States.
Several senior administration officials tell TIME Obama exercised the waiver in Abu Ghaith's case after consulting his top aides, opting to send Ghaith to trial in the Southern District of New York rather than to Gitmo. "The President's national security team -- including the Defense Department and members of the Intelligence Community, the Department of Homeland Security, the State Department, and the Department of Justice -- unanimously agreed that prosecution of Ghaith in federal court will best protect the national security interests of the United States," one senior official said.
Congressional leadership was informed of the decision, the administration officials say. Why did the administration choose civilian courts? "The Administration is seeking to close Guantanamo, not add to its population," says one administration official. Says another, "There was no reason to try him anywhere but an Article III Court. That's the best and most efficient way to bring him to justice, and that's why there was unanimity in the government on that point."