The Trump administration is considering what to do about an al-Qaida suspect being held in Yemen, a decision that presents an early test of President Donald Trump’s campaign pledge to send terrorism suspects to the military prison at Guantánamo Bay, Cuba.
The suspect, known as Abu Khaybar, was captured in the fall in Yemen and is being held there by another country, according to four current and former senior administration officials. The circumstances of his detention are not clear, but he is wanted on terrorism charges in New York.
Khaybar, who is about 40, presents an important legal and policy test for Trump, who said the Obama administration was too soft on terrorists and promised to fill the prison in Cuba with “bad dudes.”
Khaybar’s suspected affiliation with al-Qaida gives the United States clear authority to hold him in the military prison. Attorney General Jeff Sessions has repeatedly said terrorists should not be prosecuted in civilian courts and, as recently as last month at his confirmation hearing, said the prison at Guantánamo Bay should be kept open.
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The case could also prompt a decision as the Trump administration is considering an executive order that would make it clear that newly captured terrorism suspects will be sent to Guantánamo Bay. The United States has not sent a prisoner there since 2008.
But trying to send Khaybar to Guantánamo Bay would put the administration at odds with career Justice Department prosecutors and FBI agents, who say the criminal courts have proved more adept than military commissions at handling terrorism cases.
The military tribunal system has been troubled by setbacks. 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.
“I think it would be extremely demoralizing to the efforts of prosecutors and law enforcement dedicated to eradicating terrorism around the world,” said Glen A. Kopp, a former federal prosecutor in Manhattan.
The FBI and the Justice Department declined to comment. Justice Department prosecutors have expressed confidence in internal discussions that they can win a criminal trial against Khaybar, according to one former senior Obama administration official who helped review the case.
Khaybar is one of many people the United States is trying to track, capture and prosecute. Two U.S. security officials said Khaybar’s case had come to a head first, with others expected to follow.
It is not clear whether Sessions has been briefed on the case since taking office last week. Under the system in place for the past several years, President Barack Obama decided whether to bring terrorism suspects to the United States after hearing from senior officials across the government. It is unknown whether the Trump administration will follow the same process.
It is also unclear how far Trump is willing to push his international counterterrorism allies. The forces of allies such as Yemen, Saudi Arabia and the United Arab Emirates, among others, play a crucial role in the military campaign against al-Qaida’s branch in Yemen.
Many U.S. partner nations are likely to resist being seen as helping send a prisoner to Guantánamo Bay. Some allies, including in Europe, provide crucial intelligence to the United States and have sought assurances that their collaboration will not result in prisoners’ being sent to Guantánamo.
The naval prison and the documented abuses that occurred there in the early years of the Bush administration have led to international condemnation and are recruiting symbols for terrorist groups.
Little is publicly known about Khaybar, who is believed to be Sudanese. Former intelligence officials say he has long-standing ties to al-Qaida and was affiliated with the terrorist organization when he lived in Sudan. At some point, he made his way to Somalia and then Yemen around 2015, officials said.
After his capture, Khaybar’s 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 they hoped to transfer him before the end of the Obama administration, but the complexity of the case and the review process made it impossible.
Along with Trump, the case will be a test for Sessions, who has inherited a Justice Department that has become accustomed to winning important cases against foreign terrorists in federal court.
The FBI has been working alongside commandos from the military’s Joint Special Operations Command to collect evidence, a partnership that prosecutors say gives the United States options. And prosecutors have won cooperation from admitted terrorists, such as Ahmed Abdulkadir Warsame, then used that information to prosecute others and launch drone strikes.
“Given the varied nature of the threats we face today, our military needs every reliable tool we can provide them,” said Brendan R. McGuire, former chief of the terrorism unit at the U.S. attorney’s office in Manhattan and now a partner at WilmerHale.
Under the Obama administration, the Justice Department successfully prosecuted Osama bin Laden’s son-in-law and a Pakistani-born al-Qaida member who planned to carry out a bombing in Manchester, England. In 2014, a Russian jihadi fighting for the Taliban was sentenced to life in prison in the first example of a foreign combatant captured on the battlefield in Afghanistan being prosecuted in federal court.
As a senator, Sessions criticized that strategy because it gave terrorism suspects the right to lawyers, the right to remain silent and the right to a speedy trial. All of those make it harder for interrogators to extract intelligence, he said.
But Sessions has some wiggle room in the Khaybar case. He has said 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.” Khaybar has been held for months in Yemen, where he is likely subject to questioning by local authorities. The extent of such questioning is unclear.
A third option, beside Guantánamo or criminal court, would be to not seek his transfer and allow another government to handle his case. That would be an unusual move for a case involving al-Qaida charges in courts.