Free Markets, Free People

military tribunals

Gitmo, military tribunals and Obama

Guantanamo was going to be closed and Obama planned on bringing the accused terrorists to trial in Federal Court.  One of the things he said was he believed they were entitled to a day in court and that the Bush administration had held the detainees way too long.  “Speedy trial”, etc.

Now, two years after assuming office, the Obama administration and Attorney General Holder have completely reversed themselves and decided that not only is Gitmo the proper venue for such trials, but that military tribunals, a means which they both savaged, was also adequate for the job.

Predictably the left is out to spin it in such a way that it is everyone else’s fault but Obama and Holder.

John Cole in a post entitled “Cowards”:

And no, I’m not talking about Obama and Holder. I’m talking about the clowns in Congress who apparently don’t have enough faith in this nation and who are so afraid of one man that they have to try him in secret in another country.

Simply said and as usual, mostly wrong.

Jeralyn Merritt also wants to blame Congress but is more specific about it:

I was really hoping Obama and Holder could think outside the box and come up with a way to defeat the Republican-created ban on federal criminal trials. It’s not the trials that were banned, just funding for getting them to the U.S. to stand trial.to lay the blame on Congress –

Republican created?  Merritt clarifies that a bit, but again, for the umpteenth time I want to point out that from 2008 to 2010 Democrats enjoyed huge majorities in Congress and could have done just about anything they wanted to do with the funding of federal trials or moving the venue of the trials to a city in the US.

It didn’t happen not because of Republicans, but because of one of the few bi-partisan moments in those two years.  For the most part no one wanted those trials in the US.  For example:

Senator Charles E. Schumer, a New York Democrat who objected to holding the trial anywhere in New York State, hailed the administration’s decision Monday.

“This means with certainty that the trial will not be in New York,” he said. “While not unexpected, this is the final nail in the coffin of that wrong-headed idea. I have always said that the perpetrators of this horrible crime should get the ultimate penalty, and I believe this proposal by the administration can make that happen.”

It was a “wrong headed idea” from the beginning.  There were two reasons.  One, most didn’t see the detainees as “criminals” and thus they were not deserving of a “criminal trial”.  They are accused terrorists who had committed acts of war against the US, so military detention and military tribunals seemed much more appropriate.  Two, moving them to the US put whichever city hosted the trials in the crosshairs of terrorists.  It would be an unnecessary risk for what were basically to be show trials.  However, the other risk was, given the sensitive nature of some of the intelligence used to apprehend them and prove their guilt, revealing it in civilian court would compromise the methods used.  So there was (and is) a distinct possibility that they’d get off in a civilian trial even though enough evidence of a secret nature existed to convict them handily. 

The perfect venue then was the tribunal system where such information could be introduced in a venue that would protect that information.

And let’s be clear about a couple other things.

There was no desire to see justice done by either Holder or Obama – it was mostly about trying to back up campaign rhetoric, which this decision finally points out was wrong, with action. 

The White House Press Secretary, Robert Gibbs, for instance:

"Khalid Sheikh Mohammed is going to meet justice and he’s going to meet his maker," said President Barack Obama’s press secretary, Robert Gibbs. "He will be brought to justice and he’s likely to be executed for the heinous crimes that he committed in killing and masterminding the killing of 3,000 Americans. That you can be sure of."

Really?  If the idea is to show the “American criminal justice system works”, it’s hard to see that with words that are really just screaming “show trial” from the spokesperson for the President of the United States.  Gibbs took a lot of heat for that, as he should have, but it was a moment of truth that said they weren’t really interested in justice so much as having their way.  And it was the President himself who also made such a “prejudgment”:

In an interview with NBC News, Obama said those offended by the legal privileges given to Mohammed by virtue of getting a civilian trial rather than a military tribunal won’t find it "offensive at all when he’s convicted and when the death penalty is applied to him."

Also remember that the Obama Administration and the Justice Department endorsed indefinite detention regardless of the outcome of trials.  So had any of the detainees managed to get a verdict of “not guilty”, they might have been detained anyway.  Again, that screams “show trials” – if the verdict comes out the way we want it we’ll execute it.  If not, and we deem it necessary, we’ll keep the detainee for as long as we wish.

So while it may feel good to those on the left to blame Congress for this decision, I actually have to agree with Democrat Chuck Schumer – which pains me a bit – this was a “wrong headed idea” from the get-go and it has finally collapsed under the weight of reality.

We’re at war with these people, not fighting “crime”.  They are “enemy combatants” until proven otherwise.  They should be treated as we’d treat any such prisoners – and have treated them in previous wars – through trial by military tribunal.

And finally, after a two year delay (so much for the “speedy trial” complaint by Obama) we’re back where we were in 2008.

Oh speaking of 2008, by the way:

The defendants indicated in December 2008 that they were inclined to plead guilty without a full trial. But in one of his first steps after taking office, Mr. Obama halted all the commissions under way at Guantánamo while he reviewed the detainee policies he had inherited.

He just endorsed what he “inherited” and also managed to delay justice for two more years.

Well done.

~McQ

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Military tribunal for KSM probable result (update)

Apparently the White House is about to bow to the inevitable and prosecute Khalid Sheik Mohammed by military tribunal:

President Obama’s advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.’s plan to try him in civilian court in New York City.

The president’s advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some terrorism suspects in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.

I’ve never understood why only civilian courts were considered to be a symbol of the US commitment to the rule of law. The military tribunal system now in use was created by an act of Congress, signed into law by the president and vetted by the Supreme Court (which, as I recall, made Congress change a few things before it okayed the procedure). So how is its use somehow the abandonment of the rule of law?

Of course it’s not. What this is about is a petulant and mistaken insistence, at least in this case, that the previous administration preferred to operate outside the law.

What they’re about to admit, if indeed that’s the course of action they decide on, is the proper venue in which to try terrorists that have declared war on our nation is via military tribunal. That’s also a tacit admission that their’s isn’t a criminal conspiracy to be handled in civilian court, but instead an act of war to be handled in the appropriate military legal venue.

All this after 14 months of chasing their tail, trying to pound a square legal peg in a round hole.  Wasn’t it Obama complaining about these people not receiving a speedy trial?

Heck of a job, Eric.

UPDATE: Andy McCarthy at NRO thinks this is all a compromise to finally get the backing (and funding) necessary to close GITMO.  SLATE agrees, citing the story above:

If Obama accepts the likely recommendation of his advisers, the White House may be able to secure from Congress the funding and legal authority it needs to close the U.S. military prison at Guantanamo Bay, Cuba, and replace it with a facility within the United States.

Any guess as to who this is aimed at? Does the name Lindsey Graham ring a bell? Says McCarthy:

The real agenda here is to close Gitmo. That’s the ball to keep your eye on. The Post is trying to soften the opposition to shuttering the detention camp by portraying beleaguered, reasonable Obama as making a great compromise that will exasperate the Left.  The idea is to strengthen Sen. Lindsey Graham’s hand in seeking reciprocal compromise from our side.

This, however, is a matter of national security, not horse-trading over a highway bill. You don’t agree to do a stupid thing that endangers the country just because your opposition has magnanimously come off its insistence that you do two stupid things that endanger the country.

Bold emphasis mine – they’re the two key points in what McCarthy says. So let’s make it clear – KSM should be tried by a military tribunal and those trials for him and others should be held at Gitmo. As originally planned.

~McQ

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