Hamilton Legal: International Terrorism


On August 7, 1998, the terrorist bombings of U.S. embassies in Tanzania and Kenya left 224 people, including 12 Americans, dead. This tragedy marked Osama bin Laden and al-Qaeda’s rise to the forefront of American public concern. Now, we see some of the alleged assailants facing the judgment of the law. On September 19, 2014, Egyptian Adel Abdul Bary sat in a Manhattan federal court, charged with threatening to kill, injure or destroy property with an explosive and conspiring to murder U.S. citizens abroad. 

Bary originally pleaded not guilty and was expected in court with his other alleged co-conspirators, Khalid al Fawwaz and Abu Anas al-Libi. Prosecutors allege that he led the London cell of Egyptian Islamic Jihad, which became associated with al-Qaeda by 1998. He apparently worked as a public relations representative, which entailed sending messages to the media about al-Qaeda’s role in the 1998 bombings.

Instead of continuing to put forth a not guilty plea, Bary has controversially engaged in a plea deal with prosecutors. It allows him to serve a maximum of 15 years in prison, instead of 25, since he spent 10 years in a U.K. prison while awaiting extradition to the U.S. (he finally arrived in 2012). Thus, Bary pleaded guilty to a three-count indictment before U.S. District Judge Lewis Kaplan on Friday. His other alleged co-conspirators are still pleading not guilty.

Unfortunately for Bary, there was an issue with the plea deal put forward: Judge Kaplan found it problematic. Why should the courts only punish him with a maximum 15-year sentence when he had previously faced life imprisonment under the original charges brought against him? Defense attorneys and prosecutors have one week to create responses to his concerns. If Kaplan decides to reject the deal, the justice system allows Bary to withdraw his guilty plea and continue to trial.

On Friday, Manhattan U.S. Attorney Bharara said, “Today [Bary] has admitted his guilt, and subject to the further information requested by the judge, awaits the sentence to be imposed by an American civilian court.” Now the question is: what should Kaplan do? After assessing the new materials, he should insist Bary rescind his guilty plea and proceed to trial.

Bary is a terrorist. He may not have played the role we typically think of when we hear the word “terrorist,” such as the person pressing a button that ignites explosives, but he is in fact a terrorist. He was well aware of al-Qaeda’s operations and assisted bin Laden in his efforts yet did not come forward. He may not have been directly responsible for the 224 deaths, but he undoubtedly played a role in the attack.

Thus, Bary should not receive any shortcuts. He should face the judgment of a jury that we expect any criminal to face during trial. And if the jury members determine that he is guilty, he should face the penalty that they find suitable, not one he arranged outside of court. Furthermore, the 10 years he spent in prison occurred outside of the U.S. and its jurisdiction; they should not serve to lessen his punishment in an American prison.

This case highlights an important dilemma involving international terrorism. The defendant is an Egyptian who assisted in the killing of 224 people, only 12 of whom were American, in Tanzania and Kenya. Why is he being prosecuted in the U.S.?

Because of his Egyptian nationality, Egypt could prosecute him. Since the bombings occurred in Tanzania and Kenya, one of these countries could take on the role. Furthermore, since he was living in London at the time of the attack; the U.K. could prosecute him. How do we determine which country or institution should prosecute a suspect in these types of situations?

When it comes to such devastating terrorist attacks as the ones in 1998, the U.S. seems to constantly desire the responsibility to indict and prosecute the supposed criminals. It does not appear to trust other countries to do a suitable job. Is this grab for legal power just?

When countries lose their own people in a crime, they all have the ability to defend their right to see the criminals face what they perceive as a just response. If the U.S. is fighting so ardently to defend this right, then they should follow through and do so.