Dear Merrick Garland: Will you indict Hamas leaders?

OPINION:

In addition to the horrific casualties inflicted on Israelis, at this writing, Hamas has reportedly killed 32 American citizens and holds an undetermined number hostage. Hamas leaders have apparently been directing these operations from plush circumstances in Qatar, a nation that hosts America’s largest Mideast military base. As Hamas is a U.S. State Department-designated terrorist group and its recent actions fall squarely within federal criminal statutes, will Attorney General Merrick Garland’s Department of Justice seek to indict these leaders?

While in recent years federal law enforcement has not prioritized cases against Hamas, indictments now would signal recognition that the attacks have ushered in a new era. In addition to this unprecedented brutality, Hamas is actively seeking to expand its cause globally — a new development for a group whose charter confines it to the extirpation of Israel.

There is the group’s call for worldwide support during the “Friday of the al-Aqsa Flood,” its release of slick, ISIS-like propaganda videos, and even the launch of a new phone app. For U.S. counterterrorism officials, Hamas and its affiliates can no longer be consigned to the back burner.

In addition, even the threat of extradition of these men to the U.S. for crimes that potentially carry a death sentence could provide leverage in negotiations for American hostages. The operative language of Title 18 USC 2332 reads as follows: Whoever kills a national of the United States, while such national is outside the United States, shall … be fined under this title, punished by death or imprisonment for any term of years or for life, or both.

This is the anti-terrorism statute with which David Coleman Headley, the Pakistani American terrorist who helped carry out the 2008 Mumbai attacks, was charged — inducing him to provide major assistance to the U.S. government.

The same charge was utilized against Sulaiman Abu Ghayth, al Qaeda spokesman and Osama bin Laden’s son-in-law, after his indictment and extradition from Jordan. With 32 Americans dead, one could hardly conjure actions more in tune with the intent of this and related counterterrorism laws.

There is also significant intelligence value in such a case — especially if an extradition is achieved. The death penalty is no small impetus to turn informant (as did Headley). This could not only lead to new investigations of high-level overseas targets (including vis-a-vis Iran) but could also shine a light on the activities of Hamas affiliates in the U.S., where the group is known to raise funds through licit and illicit means.

There are obvious complications. Qatar occupies a unique position in the Middle East, serving as an interlocutor between the region and the West (it was in Qatar, in fact, that the 2020 U.S. withdrawal from Afghanistan was negotiated). Qatar must exist in the region, and its initial response to the attacks has not been encouraging.

Further, America’s base there serves a multitude of strategic purposes. It is a delicate balance, and no one is looking to escalate the Gaza conflict. Therefore, military action in Qatar by either Israel or the U.S. is almost certainly off the table.

But an indictment and extradition request falls squarely within the norms of international law, putting pressure on Qatar to comply (even though the U.S. has no extradition treaty with that nation). Even the issuing of an Interpol “red notice” arising from an indictment would serve to severely proscribe the ability of Hamas leaders to travel internationally, lest they be held for extradition by a willing signatory nation.

And there is another, far simpler reason for such a case: the necessity to hold Hamas leaders accountable. Whatever one’s position on the Israeli-Palestinian conflict, U.S. citizens have been killed and kidnapped by a designated terrorist organization. A robust response is required to demonstrate U.S. credibility and resolve regarding the group.

GOP Reps. Andy Ogles of Tennessee and Andy Biggs of Arizona recently wrote a letter to Doha demanding the extradition of Hamas leaders, citing similar concerns. But there can be no extradition without grand jury indictments first.

President Biden made it clear in his unequivocal speech following the attacks that “we stand with Israel.” In light of Hamas’ actions toward U.S. citizens, will his Department of Justice stand with the group’s American victims as well?

• Paul Mauro is an attorney and retired New York Police Department inspector. He is the founder of opsdesk.org.