Free Markets, Free People

James Taranto

The Grey Lady Gets It Wrong Again

Editorializing today, the New York Times says:

Attorney General Eric Holder Jr. took a bold and principled step on Friday toward repairing the damage wrought by former President George W. Bush with his decision to discard the nation’s well-established systems of civilian and military justice in the treatment of detainees captured in antiterrorist operations.

From that entirely unnecessary policy (the United States had the tools to detain, charge and bring terrorists to justice) flowed a terrible legacy of torture and open-ended incarceration. It left President Obama with yet another mess to clean up on an urgent basis.

Of course this minimizes the arguments to Bush did or didn’t follow “the nation’s well-established systems of civilian and military justice in the treatment of detainees captured in antiterrorist operations.”

In fact there were no “well-established systems” in existence at all as we found out. Anyone who remembers what happened as we began to take in these “detainees captured in antiterrorist operations” knows that no system at all existed. There was a tremendous amount of debate and legal research done to try to determine what sort of status these people should or could be held under. And that’s not been established in full to this day.

For instance, the NYT claims that “open-ended incarceration” has been ended by the Obama administration’s move. But that’s simply not true. As the Washington Post reports:

That leaves up to 75 individuals remaining at Guantanamo who could continue to be held under the laws of war because they are deemed too dangerous to release, but cannot be prosecuted because of evidentiary issues and limits on the use of classified material.

So it appears, given the evidence, that open-ended incarcerations continue. Why? Because we still don’t have a comprehensive legal policy with which to deal with these people. As the Obama administration found out when it tried to close Guantanamo, the legal questions were indeed complex and unresolved. And, at least 75 individuals continue to face the possibility of open-ended incarceration because of that – a year into the Obama administrations tenure.

The Times continues:

On Friday, Attorney General Holder announced that Khalid Shaikh Mohammed, the self-described mastermind of the Sept. 11 attacks, and four others accused in the plot will be tried in a fashion that will not further erode American justice or shame Americans. It promises to finally provide justice for the victims of 9/11.

Mr. Holder said those prisoners would be prosecuted in federal court in Manhattan. It was an enormous victory for the rule of law, a major milestone in Mr. Obama’s efforts to close the detention camp at Guantánamo Bay, Cuba, and an important departure from Mr. Bush’s disregard for American courts and their proven ability to competently handle high-profile terror cases.

Well, that’s the official spin, I suppose, but my guess is it has more to do with leftist politics than any concern for justice and I think James Taranto has the best take on what is most likely about this move:

As Morris Davis, a retired military prosecutor, argued the other day in The Wall Street Journal, under the administration’s plan, “the standard of justice for each detainee will depend in large part upon the government’s assessment of how high the prosecution’s evidence can jump and which evidentiary bar it can clear.” Detainees will get a “fair trial” in civilian court only if their conviction is assured. By implication, that suggests that detainees who go before military commissions will get an unfair trial. Presumably the administration would deny this and say the commission trials will be fair too. But if so, why is such a trial not good enough for Khalid Sheikh Mohammad?

The answer seems to be that the administration is conducting a limited number of civilian trials of high-profile terrorists for show, so as to win “credibility” with the international left. These trials will differ from an ordinary show trial in that the process will be fair even though the verdict is predetermined. But people who wrongly think that either military commissions or detention without trial are unjust will not be satisfied with some detainees getting civilian trials–unless, of course, they are simply eager to be impressed by Barack Obama.

I think he’s exactly right. These are indeed show trials, considered safe enough (the evidence is overwhelming enough that classified evidence won’t be necessary) to ensure conviction. These trials will have little to do with “justice”, but they will have much to do with shutting up or at least muffling the leftist base which still isn’t satisfied with what the administration has accomplished in terms of closing Gitmo. These trials buy the administration more time.

Note also what Tranto says about the implication that exists concerning military tribunals. The Times says it out loud:

Regrettably, the decision fell short of a clean break. Five other Guantánamo detainees are to be tried before a military commission for the 2000 bombing of the Navy destroyer Cole, including Abd al-Rahim al-Nashiri, who is accused of planning the attack.

The rules for the commissions were recently revised to bring them closer to military standards. And Mr. Holder cites the fact that the Cole bombing was an attack on a military target to justify a military trial. But that does not cure the problem of relying on a new system outside the regular military justice system. Nor does it erase the appearance that the government is forum-shopping to win convictions. Most broadly, it fails to establish a clear framework for assigning cases to regular courts or military commissions going forward.

The rules revisions the Times cites were cosmetic at best. But note that the editorial doesn’t mince words concerning its disdain for the military tribunal. The fact that those being tried before the tribunal actually attacked a military target doesn’t stop the Times from claiming “forum shopping” as the key to their continued use.

So let’s review – KSM is going to NY for trial. That, supposedly, is a clean break with the awful Bush years and open-ended incarceration and military tribunals. Except it’s not. 75 remain in open-ended incarceration at Gitmo. And 5 will face justice in front of military tribunals.

In fact, the only thing that has happened is a couple of show trials, which could just as easily been done in Guantanamo (or if they want a Federal Court – how about Miami), are going to be held in an attempt to “prove” that things have changed.

The Times is obviously fooled into believing that. And, that proves one thing – that politically at least, the Obama adminstration got this one right.

~McQ

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