While You Weren’t Looking, Obama Kills Military Commissions

March 9, 2013
By Andrew C. McCarthy
National Review

In the blink of an eye, the second Obama term has turned the clock back to the pre-9/11 days, when al-Qaeda was a law-enforcement problem, not a national-security challenge.

Remember the great ruckus over the administration’s attempt to give Khalid Sheik Mohammed & Co. a civilian trial in lower Manhattan? In what would, in effect, reward their savagery in killing nearly 3,000 Americans a few blocks from the federal courthouse, the administration proposed to endow them with all the constitutional rights and peacetime civilian due process protections of American citizens, despite the fact that the American people’s representatives in Congress — having authorized wartime combat operations against our jihadist enemies — had fashioned a military-commission system for the trial of alien enemy combatants. The administration gambit was unsuccessful because the public, even in blue, blue New York City, rose up in protest, spurring congressional outrage and, eventually, legislation barring the executive branch from using public funds to transfer terrorists from Gitmo to the U.S. for civilian prosecution. The message could not have been clearer: For enemy combatants, it is military commissions or no trials at all, not civilian due process.

Well, the administration has never forfeited its goal of returning to the Clinton-era counterterrorism, when all terrorists were deemed defendants presumed innocent, not enemies to be quelled. Now, with the help of President Obama’s Islamist confidant, Turkish prime minister Recep Tayyip Erdogan, Obama has found a way around Congress’s ban.

Last month, Turkey found itself in custody of longtime al-Qaeda bigwig Sulaiman Abu Ghayth, the son-in-law of Osama bin Laden and described by the FBI as the terror network’s “consiglieri.” To satisfy its Islamist base, Erdogan’s government pretended to extradite the Muslim terrorist to his native Kuwait rather than cooperate with American agencies. But the Turks conveniently shipped Abu Ghayth to Kuwait by way of Jordan . . . where the U.S. has more open, effective counterterrorism cooperation and where our government was thus able to take Abu Ghayth into custody.

So, was this high-ranking member of the enemy forces shipped to Gitmo for long-term detention and interrogation in the hope of gleaning fresh intelligence? Of course not. Because Abu Ghayth was not detained at Gitmo, he was not subject to the statutory prohibition against using government funds to transfer enemy combatants into the U.S. So, while no one was paying attention, the administration whisked him into lower Manhattan, where his indictment in civilian court was promptly announced. He thus promptly received legal representation — so much for interrogation — and is enjoying all the protections of the Bill of Rights.

According to a government press release, prosecutors plan to prove the overall al-Qaeda conspiracy against Abu Ghayth — going back to 1989 and “including the attacks on the United States on September 11, 2001, in New York, Virginia, and Pennsylvania, which killed approximately 2,976 people.”

Understand what this means. Other than the relative notoriety of the culprits, bringing Abu Ghayth to New York is no different from bringing KSM to New York for a civilian trial. The Obama administration’s intention is to try the same case against Abu Ghayth that it planned to present against KSM. This is a bold presidential decision to undermine military commissions and to proclaim that the civilian courts are the government’s venue of choice for all terrorism cases — even those against wartime enemy combatants.

Moreover, as Attorney General Holder must know, by proceeding with this civilian prosecution in New York at the very moment when KSM and the other 9/11 defendants are facing a military commission at Gitmo, he has given KSM & Co. an exquisite legal argument that proceeding with their military commission would be arbitrary and unjust in light of the grade-A due process Abu Ghayth is getting. That is, the government is virtually inviting the federal courts to invalidate military commissions — which was a top goal of many Obama administration lawyers back when they were in private practice, volunteering their services to terrorist detainees.

As we did in the 1990s, we can pretend that there is no war. I doubt that resurgent al-Qaeda will agree. So while we forfeit interrogation opportunities and shovel our intelligence files to the enemy in compliance with civilian due process protocols, the enemy will continue plotting against us. Al-Qaeda: less vulnerable, more confident, and better informed about our strengths and weaknesses. We’ve seen how this ends.