Alongside Sen. Kelly Ayotte, R-N.H., Sen. Lindsey Graham, R-S.C., says he's putting the Obama administration "on notice" for reportedly going around Congress and sneaking the "spokesman for 911," Abu Gaith, into New York City for detainment rather than taking the alleged enemy combatant to Guantanamo Bay to await a hearing.
Even as government officials applauded the arrest of Sulaiman Abu Ghaith, Osama bin Laden's son-in-law and an al-Qaida spokesman, his transport to the United States stirred a debate among lawmakers who appeared caught by surprise by the news.
Abu Ghaith was apprehended, transported to New York and charged with conspiracy to kill Americans, according to court documents unsealed Thursday. Abu Ghaith appeared alongside his father-in-law in a 2001 video in which they took responsibility for the 9/11 attacks and warned of more.
He is due to appear in federal court in Manhattan on Friday. Abu Ghaith is expected to enter a plea to one count of conspiracy to kill Americans.
Abu Ghaith's trial will be one of the first prosecutions of senior al-Qaida leaders in the United States. Upon taking office in 2009, President Barack Obama said more foreign terror suspects should be charged in American federal courts, as part of his goal to close Guantanamo Bay.
Since September 11, 2001, 67 foreign terror suspects have been convicted in U.S. federal courts, according to Human Rights First, a watchdog group that obtained the data from the Justice Department through a Freedom of Information Act request.
Of the detainees held at Guantanamo Bay after the terror attacks, only seven have been convicted by military tribunals held at the base in Cuba, Human Rights First said. Most of them have been sent back overseas, either for rehabilitation or continued detention and prosecution, the AP reported.
Republicans in Congress would like to keep Guantanamo open and have strongly opposed bringing terror suspects on U.S. soil.
"We believe the administration's decision here to bring this person to New York City, if that's what's happened, without letting Congress know is a very bad precedent to set," said Sen. Lindsey Graham, R-S.C., who held a press conference with Sen. Kelly Ayotte, R-N.H, Thursday.
"And when we find somebody like this, this close to bin Laden and the senior al-Qaida leadership, the last thing in the world we want to do, in my opinion, is put them in civilian court. This man should be in Guantanamo Bay," Ayotte said.
Officials tell NBC News he had been a prisoner in Iran for most of the past decade and is scheduled to appear in federal court Friday. NBC's Brian Williams reports.
"So we're putting the administration on notice," said Graham. "We think that sneaking this guy into the country, clearly going around the intent of Congress when it comes to enemy combatants, will be challenged."
Earlier, in an interview on MSNBC, House Intelligence Chair Mike Rogers, R-Mich., strongly criticized the administration for bringing Abu Ghaith to the United States.
Rogers, a former FBI agent, said that reading "Miranda rights" to a top al-Qaida suspect and bringing him to the United States for trial creates a host of problems — as opposed to sending him to the facility at Guantanamo Bay, which was built to handle high value prisoners.
"Al-Qaida leaders captured on the battlefield should not be brought to the United States to stand trial," Rogers said. "We should treat enemy combatants like the enemy. The U.S. court system is not the appropriate venue."
Sen. Charles Schumer, D-N.Y., said it was fine with him if Abu Ghaith is put on trial in New York, because key state and city officials had been consulted in advance, unlike in the case of terror suspect Khalid Sheikh Mohammed.
"Unlike with KSM, (Police Commissioner Ray) Kelly and others had been consulted ahead of time about this and they gave the green light to do it. As you know, Kelly, Mayor (Michael) Bloomberg and I opposed the trial of (Mohammed) in New York and we successfully made sure that didn't happen," said Schumer.
"On issues like this, I defer to Commissioner Kelly, and I think the mayor does as well. And he thinks it's OK to do it here, and I'll go by that," he added.
NBC News' Becky Bratu and The Associated Press contributed to this report.
This story was originally published on Thu Mar 7, 2013 7:19 PM EST