Posted by
Always To The Right on Friday, February 06, 2009 12:48:24 PM
When President Obama demanded 120-day continuances
of all military tribunals at Guantanamo Bay, he said he wanted time to
review the best possible course of action while he planned Gitmo’s
eventual closure. The trial judge for the mastermind of the USS Cole
bombing refused to grant the continuance, telling prosecutors that he couldn’t base decisions on trials based on how the law might
change in the future, and practically daring the government to withdraw charges instead. Obama did just that yesterday, while planning to meet with some of the victim’s families (via The Anchoress)
Unfortunately, this was all too predictable. Obama had no intention
of prosecuting the Gitmo detainees in the first few days of his
administration. The delay may have made it palatable for them to
continue later, with a little spin, but Obama’s likely intent was to
inure himself against criticism from the Right on the prosecutions by
delaying and dragging out the Gitmo closing process.
This decision puts Nashiri into the very status to which Obama and
the Left objected so strenuously: held without charge. That was the
status that Congress and the Bush administration worked hard to change twice
in passing legislation that established the military tribunal system.
The last time, in 2007, Democrats joined Republicans in creating a
system with more safeguards for defendants than our own military
personnel get under the UCMJ, complete with access to the federal court
system on appeal.
Andy McCarthy,
who sharply criticized the judge in the Nashiri case for forcing
Obama’s hand, says that Obama may not be done dropping charges, either,
and welcomes back September 10th America:
On that score, it is noteworthy that, before the
appointing authority acted this evening, Obama had scheduled a meeting
for tomorrow afternoon with victims and families of victims not only of
the Cole bombing but of of the 9/11 attacks. At a minimum, he appeared
poised to announce he was dropping the Cole charges against Nashiri.
All evening, however, it has been floated from several knowledgeable
sources that the president was prepared to announce the dismissal of
all the commission cases — i.e., not only against Nashiri but against
Khalid Sheikh Mohammed and the other 9/11 plotters. That suggestion is
supported by the fact that the 9/11 families were invited to the White
House meeting: there would have been no need to invite them to discuss
an announcement that impacted only the Cole case.
Dismissals, if they happened, would surely be couched as “without
prejudice.” That is, Obama would be able to tell the families —
whether he meant it or not — that he could always re-file military
commission charges if he ultimately decided that commissions, rather
than civilian trials, were the best way to go. …
Such dismissals would get the administration out from under the
four-month deadline its adjournment request would have imposed. That
is, the cases would be gone instead of suspended. Nothing further
would ever have to happen, and nothing further would happen, unless and
until Obama decided what to do about all the detainees remaining at
Guantanamo Bay. Maybe his ultimate decision would be to transfer the
war-crimes detainees for trial in civilian court, maybe it would be to
ship them to some country willing to take them, or maybe it would be to
continue detaining them without trial under some new legal system. But
you could bet the ranch that war crimes defendants would never again be
charged in military commissions. Obama’s antiwar base, which rejects
the premise that we are at war, cannot abide such military prosecutions.
From Obama’s rhetoric and actions, it looks like Andy’s correct;
we’re going back to the law-enforcement model, which failed so
miserably to protect our country during the Clinton adminstration.
Andy knows this from personal experience, as he prosecuted the Blind
Sheikh, Omar Abdel Rahman, and his terrorist network for the first
World Trade Center bombing. For almost a decade afterwards, we pursued
terrorists as though they were burglars, unwilling to grab them before they killed Americans, and obsessing over their legal status.
Will Obama drop charges against Khalid Sheikh Mohammed and the 9/11
plotters, too? What makes them different from Nashiri and the others
whose plots ended in American deaths?