So, You Still Want to Close Gitmo?

Judge’s order to release 9/11 jihadist is a sign of things to come.

Andrew C. McCarthy
Thursday, March 25, 2010

Mohamedou Slahi is responsible for the murder of thousands of Americans. He was a core member of the 9/11 conspiracy — the recruiter of Mohamed Atta and the other ringleaders. If he’d had his druthers, even more Americans would have been killed: He is almost certainly the al-Qaeda middle manager who activated the Canadian cell that attempted to bomb Los Angeles International Airport. On the scale of war criminals, he edges toward the Khalid Sheikh Mohammed range, as bad as it gets.

A federal judge has ordered that he be released.

Cassandra did not like being Cassandra. It is not enjoyable to foresee avoidable catastrophes again and again (and again and again and again) only to watch as no remedial measures are taken and disaster strikes. To repeat: The courts are institutionally incompetent when it comes to matters of national security, particularly the prosecution of war.

The Framers intended it that way. National-security decisions are the most important ones a political community makes, so our system of government was designed to have them made by the political branches — by those who answer to the voters, to the people whose lives are at stake. When the political branches abdicate this first responsibility of government, sitting by as it is usurped by politically insulated judges, they deny us the freedom to decide for ourselves what our security requires. We are then the subjects of judges rather than masters of our own destiny.

The courts, moreover, are the worst institution to which we could surrender this authority. Not only are we powerless to vote them out if they get national-defense matters wrong, they are guaranteed to get them wrong. This is not because judges are bad people; it is because they have no responsibility for protecting the country. They are generally good people whose job is to ensure that the parties before the court are given due process. When a judge does that job conscientiously, due-process rights are inevitably inflated. That judges do not run completely out of control in maximizing due-process rights owes not to judicial temperance but to the powers of the political branches.

This genius of separation of powers is on display in the civilian justice system. We know that judges are hardwired to maximize the rights of accused criminals. So we don’t give them free reign. It is Congress that writes the statutes that courts must apply and prescribes the rules of procedure. It is Congress that tells the judges what the punishment for a crime must be and whether an offender may be released — it doesn’t matter whether the judge thinks the criminal is unlikely to threaten society.

But the same Congress that performs these duties exactingly in the civilian justice system, where judges have institutional competence, has abdicated its responsibility in the conduct of war, in which judges have no expertise. In the 2008 Boumediene v. Bush decision, the Supreme Court’s liberal bloc turned its back on precedent and empowered America’s enemies to use our courts against us — inviting alien enemy combatants into federal court to challenge the military’s determination that they are, in fact, enemy combatants. The Supremes further exacerbated the problem by giving no guidance to the lower courts as to how these cases should proceed: What rights to discovery and confrontation do our enemies have? What rules of evidence obtain? Who bears the burden of proof that a detainee is or is not an enemy combatant? What is the standard of proof to be applied? We don’t know. The Court left it up to the district judges to make it up as they go along.

As they continue making it up, here is the most important point to consider: Judges are inherently hostile to the concept of detention without trial. That we have been permitted for centuries to hold enemy combatants through the conclusion of hostilities, and that we have in fact done this to millions of prisoners, is irrelevant to them. They figure that we just weren’t enlightened enough before 2004 to involve the courts in this core aspect of warfare. But the fact is that we didn’t involve courts because it wasn’t the courts’ affair; fighting war is the military’s job, under the direction of the commander in chief and the authorization of Congress.

Now, we’ve somehow made it the job of Judge James Robertson, a progressive civil-rights activist appointed to the bench by President Clinton in 1994. Robertson is the district judge who started it all, the first to rule — back in 2003 — that Salim Hamdan, Osama bin Laden’s personal bodyguard and driver, had Geneva Convention rights and could not be subjected to a military-commission trial. He later quit the FISA court in apparent protest over the president’s wartime effort to penetrate our enemies’ international communications without asking permission from federal judges. Now, he is ready to spring Slahi, the terrorist who set 9/11 in motion.

Bear this in mind: Because Slahi is still at Guantanamo Bay, Judge Robertson only has the authority to review his status as an enemy combatant. That means the judge could do nothing more than order Slahi’s release; if the Justice Department does not successfully appeal the decision, we will find another country to take Slahi. But if Gitmo had been closed, as the Obama administration and Sen. Lindsey Graham want, Slahi would have been physically inside the United States. Judge Robertson then would have claimed that his physical presence in our country entitled Slahi to all of the Constitution’s protections (not just habeas corpus). He would have ordered that Slahi be released in the United States if no suitable alternative could be found.

Who is still at Gitmo? The worst of the terrorists, including scores who are known to be dangerous but cannot be tried because, as in Slahi’s case, there is not sufficient admissible evidence to convict them of war crimes: There is only intelligence and coerced admissions — useful information but inadmissible in a trial court, civilian or military.

Scores of detainees fall into the detention category to which judges are most hostile: indefinite imprisonment without trial. If that imprisonment is happening here rather than in Cuba, judges will be free to order the terrorists released here.

And if they’d release Mohamedou Slahi, who wouldn’t they release?