War on Guantanamo
The charges against Cole bombing suspect Abd al-Rahim al-Nashiri have been dropped—for now.
It’s certainly not for lack of evidence. It’s due to the fact that President Obama isn’t keen on the way the Bush administration handled those captured in the so-called war on terror, and one of his big campaign promises was to close down Guantanamo and find a different way than military tribunals to try the enemy combatants there. He says he needs time to review all the cases. In order to do that for al-Nashiri, he needed to stop his military trial before it began. This would protect the right to try him later and not violate the double jeopardy law.
Will al-Nashiri ever come to trial? We don’t know. But if he does, it’s a good guess that if Obama has his way it will be in an ordinary court of justice, subject to all the legal protections (and liberal rules of discovery) such a venue guarantees. As an expert on the subject, Andy McCarthy, writes, this would be a very bad idea:
Obama will discover…evidence for his own belief that terrorism cases belong in the civilian justice system, where they were before 9/11. That would be a lamentable outcome. The military commissions have not performed well, but the paradigm of detentions and prosecutions under the laws of war””whether administered by the military or by a new hybrid system with civilian judicial oversight””is essential to our security.
If we go back to a September 10 way of doing things, under which only those who can be convicted under daunting civilian court standards may be detained, we will get September 11 results.
McCarthy, by the way, wrote one of the best articles I’ve ever read on the problems inherent in treating enemy terrorist combatants under our non-military criminal justice system. Here’s an excerpt:
In the constitutional license given to executive action, a gaping chasm exists between the realms of law enforcement and national security. In law enforcement, as former U.S. Attorney General William P. Barr explained in congressional testimony last October, government seeks to discipline an errant member of the body politic who has allegedly violated its rules. That member, who may be a citizen, an immigrant with lawful status, or even, in certain situations, an illegal alien, is vested with rights and protections under the U.S. Constitution. Courts are imposed as a bulwark against suspect executive action; presumptions exist in favor of privacy and innocence; and defendants and other subjects of investigation enjoy the assistance of counsel, whose basic job is to thwart government efforts to obtain information. The line drawn here is that it is preferable for the government to fail than for an innocent person to be wrongly convicted or otherwise deprived of his rights.
Not so the realm of national security, where government confronts a host of sovereign states and sub-national entities (particularly terrorist organizations) claiming the right to use force. Here the executive is not enforcing American law against a suspected criminal but exercising national-defense powers to protect against external threats. Foreign hostile operatives acting from without and within are not vested with rights under the American Constitution. The galvanizing national concern in this realm is to defeat the enemy, and as Barr puts it, “preserve the very foundation of all our civil liberties.” The line drawn here is that government cannot be permitted to fail…
As Defense Secretary Donald Rumsfeld has observed, weakness is provocative. The fecklessness of meeting terrorist attacks with court proceedings””trials that take years to prepare and months to present, and that, even when successful, neutralize only an infinitesimal percentage of the actual terrorist population””emboldened bin Laden. But just as hurtful was the government’s promotion of terrorism trials in the first place. They were a useful vehicle if the strategic object was to orchestrate an appearance of justice being done. As a national-security strategy, they were suicidal, providing terrorists with a banquet of information they could never have dreamed of acquiring on their own.
Under discovery rules that apply to American criminal proceedings, the government is required to provide to accused persons any information in its possession that can be deemed “material to the preparation of the defense” or that is even arguably exculpatory. The more broadly indictments are drawn (and terrorism indictments tend to be among the broadest), the greater the trove of revelation. In addition, the government must disclose all prior statements made by witnesses it calls (and, often, witnesses it does not call).
This is a staggering quantum of information, certain to illuminate not only what the government knows about terrorist organizations but the intelligence agencies’ methods and sources for obtaining that information. When, moreover, there is any dispute about whether a sensitive piece of information needs to be disclosed, the decision ends up being made by a judge on the basis of what a fair trial dictates, rather than by the executive branch on the basis of what public safety demands.
It is true that this mountain of intelligence is routinely surrendered along with appropriate judicial warnings: defendants may use it only in preparing for trial, and may not disseminate it for other purposes. Unfortunately, people who commit mass murder tend not to be terribly concerned about violating court orders (or, for that matter, about being hauled into court at all).
Andrew McCarthy should know. He was the prosecutor for the 1993 WTC bombing case.
The al-Nashiri case isn’t about a suspect being held indefinitely without a trial—al-Nashiri was about to face trial, and now his trial is delayed while he remains imprisioned. But al-Nashiri was apparently subject to the controversial practice known as waterboarding, which could make his confession suspect. He’s certainly pleading that he only spilled the beans because of the waterboarding, and that he takes back his admissions.
Waterboarding was not the basis of the government’s decision to withdraw the charges, though. That had to do with the more general question of how and where these enemy combatants should be tried. At some point Obama will need to make up his mind about that, but that time may be a way off.
In the meantime, how about extraditing al-Nashiri to Yemen, where he already drew the death penalty in 2004 when he was tried in absentia for the Cole bombing?
– good idea, send him to Yemen.
Nothing good can come from this. Here is the fundamental difference: the Left believes in doing the cops-and-robbers thing with terrorists; others believe we are at war and those rules apply. If the rules of evidence and discovery are to be observed, then our intelligence forces (what remain of them) are not going to want to stick their necks out, lest their ways and means be exposed. And if the intelligence capabilities of other nations help to track down and apprehend terrorists, those nations are not going to want to expose their ways and means. This is gridlock, and only lawyers can be happy about this outcome.
Our progress towards civilizational suicide is proceeding right on track…
Obama is showing the same weakness that Clinton did.How can we not expect the same results?
BTW,where was Ms.Clinton on 9-11 when she was supposed to be at a meeting at the Capitol with Laura Bush and Ted Kennedy.She never missed her meetings.They were there,she was not.
Why?Does anyone know?This is a sincere question.
My interpretation of the Geneva Convention was that illegal combatants (along with mercenaries) are not covered by it. Unfortunately, the US Supreme Court is not known for interpreting the law in any coherent fashion (Like – oh, say, Craig v. Boren, Dred Scott v. Sandford, Plessy v. Ferguson, Korematsu v. United States, Bowers v. Hardwick, Washington v. Glucksberg, Cohen v. California, New York Times v. United States, Boumediene v. Bush and Kelo v. City of New London).
– G
In the meantime, how about extraditing al-Nashiri to Yemen, where he already drew the death penalty in 2004 when he was tried in absentia for the Cole bombing?
Because they will let him go.
We’re so screwed.
But this just goes to show that the Left is on the side of our enemies. Nothing less explains this insanity. God damn them.
I saw the World Trade Center implode. I saw thousands of our people butchered. I hope Hussein roasts in hell.
Obviously there are many reasons for Gitmo. Some of the people are still there because their home countries won’t take them back or if they will the chances are they they would be subjected to REAL torture if shipped back. Of course several countries in Europe have agreed to take some of them but only after extensive investigation and interviews to determine they are NOT terrorists. I am assuming these interviews will not include waterboarding.
Of course I find it laughable that they want to close Gitmo and move them into the US prison system. I’m know we can all feel warm and fuzzily assured that when they are they will continue to be treated to several culturally and religiously appropriate choices for every meal. We can also be assured the correctional guards at these US facilities will treat the Koran with all the deference it deserves. Yeah right.
I proposed a solution to the Bush administration to implement before he left office that should have satisfied the libs and saved tons of money in the long run. Bring them all to the states and buy them convenience stores in Pelosi’s district in San Francisco and around Hyde Park in Chicago. They would have felt right at home and they could have become contributing members of society. It’s too bad no one went for it – I would have traveled great distances just to hear, “Would you like a detonator or some primer cord with that Slurpee?”
Dane,
I live on the Near West Side, and Hyde Park is pretty damn close to me. I can’t help the fact that my neighbors pray to the messiah.
Damn it … to bad the Republicans concluded the primary with such poor choices. I still think McCain is border-line senile, and Palin is just a mumbling ignoramus … wish Giuliani and Lieberman could have marched to the top.
When I heard Obama evolving toward my position by saying he would go after operatives in Pakistan, the contrary now seems evident.
BTW, now A. Q. Khan is a free man in Pakistan … we need to nab that fellow and water board his ass hard hard .. one of the very few cases where water boarding, as at least an option, would warrant a judicial nod or presidential order .. but probably not from The One currently holding that office.
Trying these barbarians in a civilian court is not only going to deliver secret information into their hands, but it places the prosecutors, judges, jurors and their families under the threat of retribution from the terrorists’ friends and allies.
There are no rules that they play by except to kill whoever gets in their way……as painfully and agonizingly as possible. That is why they are called terrorists. But we are supposed to accord them all the advantages of POWs and/or U.S. citizens. Why are liberals so blind to the consequences of their oh, so PC ideas.
James Taranto (WSJ Online) had this to say about it:
This points to perhaps the biggest error the Bush administration made in its detention policy: placing a heavy emphasis on war-crimes trials — “bringing terrorists to justice” — as opposed to detention for the purpose of keeping them off the battlefield. The administration thereby invited comparisons with the civilian criminal-justice system, with its solicitous attitude toward the rights of the accused. The Bush administration’s law-enforcement mindset probably hindered national security, and almost certainly would have done so eventually without a change in policy.
Many Guantanamo detainees are dangerous but cannot be prosecuted, even in a military commission, because of a lack of evidence that they have committed specific crimes. Had the commission trials proceeded on schedule — and we have the Supreme Court to thank for delaying them this long — at some point the Bush administration would have faced a political problem in that it would have had to explain why the worst of the worst were getting trials while the merely worse of the worst were being held forever without charges.
As far as we know, top Bush officials were oblivious to this problem. We made the point to then-Attorney General Alberto Gonzales at a Wall Street Journal editorial board meeting in September 2006, and he showed no sign of comprehension. President Bush’s public comments around the same time, in which he said he wanted to close Guantanamo after the military commissions had done their work, suggest he also did not understand it.
We’re so screwed. I’m in NYC, thinking seriously of relocating, though I would hate to. I do love the city, even if she is filled with moonbats.
Beverly,
It would not have made a bit of difference had Bush mentioned only detainment of illegal combatants. The people who oppose Guantamo believe the prisoners are innocent of everything, and they all say, “but you can’t keep them forever.”
The outrage in Germany is not based on legal distinctions. The few times I have seen the legal issues discussed here, there was a big yawn from the public. Bush was bad, and that poor, unemployed young man who went to Pakistan to deepen his understanding of the Koran was a victim of the unilateralist, fundamentalist evil man in the White House.
When they close Gitmo they should send these clowns to where ever they keep Hannibal Lechter, with a supply of Fava Beans and Chianti.
I made an interesting observation today while watching the news.
It seems that Biden is now warning Iran that the US reserves the right to pre-emptive action…..
Wasn’t that kind of, ya know, a component of the Bush doctrine?
Regarding Gitmo inmates being held forever, the allies held some of the Nazi’s in prison for decades after WWII ended.
Yes, you can hold them forever – ar at least til the f%ckers die.
Seen elsewhere, the Clint Eastwood Man with No Name approach: “Close Gitmo, end the military tribunals, prepare 250 coffins.”
Neomythus,
Looking at McCain’s mother I am pretty sure no one in that family has to worry too much about the “senility” gene. That being said, I’m not sure on a lot of issues McCain would have been a lot better than Obama. But at least he has a respect for the military and is somewhat more fiscally responsible than Obama. Sara Palin may not be polished enough for the “inside the beltway crowd” but she is smart and willing to take on the status quo. I liked Thompson (the true conservative in the crowd) but he got in too late. I liked Romney – but I think his Mormonism made him even a longer shot than Obama. In fact I think the liberal left who lectured us that if we didn’t support Obama we were racist had no problem vilifying Palin because of how she chose to live her life AS A WOMAN and Romney for being part of a religion they represented as little more than a cult. Once again an amazing example of intellectual arrogance combined with ignorant stupidity.