Back in Commission

The president gives in on military commissions, grieving his cheerleaders.

Andrew C. McCarthy
Saturday, January 22, 2011

President Obama is relenting on military-commission trials, and the New York Times is, shall we say, chagrined.

The administration’s retreat can be chalked up to the political climate proximately created by two developments. The first is Congress’s prohibition against the transfer of terrorist detainees from Gitmo to the United States, which makes giving them the bells-’n’-whistles civilian trials preferred by the president and his Justice Department impractical. On that count, the president — in a downright Bush-like signing statement, of all things — floated a very weak constitutional objection to the transfer ban. That huffing and puffing went nowhere, and deservedly so. Thus the administration must deal with reality.

The second significant turn of events to shape that reality was the outcome of al-Qaeda operative Ahmed Ghailani’s civilian trial. Though fully complicit in the 1998 embassy bombings, the terrorist was acquitted on 284 of 285 counts after a judge refused to allow the prosecution to call its most important witness. As previously noted, the compromise verdict probably had more to do with a loopy juror than with the court’s ruling. Nevertheless, both the bizarre jury deliberations and the ruling on the witness — which was premised on the notion that a foreign terrorist, whose only connection to the United States is blowing up our embassies, somehow has full-throttle Fifth Amendment rights — served to underscore the risks inherent in a civilian justice system that permits even guilty criminals to escape conviction if doubt is cast on the government’s case. That’s fine when defendants are American citizens accused of ordinary crimes — they’re the ones for whom our justice system was quite intentionally designed that way. For enemy jihadists? Not so much.

The first of the military-commission trials will apparently involve Abd al-Rahim al-Nashiri, the better known alias of the Saudi national whose true name is Abd al-Rahim Hussein Muhammad Abdu. He is a top al-Qaeda operative, responsible for the October 2000 bombing of the U.S.S. Cole.

Nashiri is of immense interest to the Times, but not because he killed 17 American sailors, wounded 39 others, and nearly sank a naval destroyer. The Gray Lady is in a snit because Nashiri was waterboarded by CIA interrogators after being captured in November 2002. This fact results in the most spurious aspect of Charlie Savage’s dispatch:

Mr. Nashiri’s case . . . would attract global attention because he was previously held in secret Central Intelligence Agency prisons and is one of three detainees known to have been subjected to the drowning technique known as waterboarding. Lt. Cmdr. Stephen Reyes of the Navy, a military lawyer assigned to defend Mr. Nashiri, declined to comment on any movement in the case. But he noted that two of Mr. Nashiri’s alleged co-conspirators were indicted in federal civilian court in 2003, and he made clear that the defense would highlight Mr. Nashiri’s treatment in C.I.A. custody. “Nashiri is being prosecuted at the commissions because of the torture issue,” Mr. Reyes said. “Otherwise he would be indicted in New York along with his alleged co-conspirators.”

No he wouldn’t. Savage and Reyes are bloviating. What happened to Nashiri after his apprehension in 2002 is irrelevant to what he did leading up to the 2000 attack, unless the government tries to introduce his interrogation statements as evidence. The interrogation was done to collect intelligence, however, not to elicit a confession, and statements obtained through physical coercion have no place in any kind of trial, civilian or military. Thus, the government surely will not attempt to introduce them. Savage, in fact, implicitly concedes this when he observes that “much of the evidence against Mr. Nashiri consists of witness interviews and documents gathered by the F.B.I. in Yemen after the bombing.” The “torture” narrative and its corollary, that of the CIA’s allegedly sinister use of “black site” prisons, continue to inspire a frisson for the editorial boards that so carefully crafted them. Most Americans, though, care chiefly about whether Nashiri killed members of our armed forces. That is what the trial will be about.

Reyes’s caterwauling about how Nashiri is being treated unfairly in comparison with other Cole bombers has surface appeal only because of what Savage takes pains not to tell you. According to defense counsel, Nashiri is getting a military trial rather than the civilian due process two other Cole bombers purportedly got — because he was “tortured” and they weren’t. Savage seemingly corroborates this suggestion by stating that “Nashiri’s alleged co-conspirators were indicted in federal civilian court in 2003.” Notice, though, the reporter’s use of “indicted.” It’s calculated. Yes, Nashiri’s two al-Qaeda confederates — Jamal al-Badawi and Fahd al-Quso — were indicted, but as Savage well knows, the United States never actually captured them, much less tried them in civilian court.

Badawi was captured by our fabulous ally, Yemen, the current comfy home base for al-Qaeda in the Arabian Peninsula. You’ll be stunned to learn that the Yemenis promptly allowed him to flee — twice, the second escape miraculously occurring after a Yemeni court went through the motions of imposing a death sentence on him. He remains at large. By contrast, Quso would probably tell you, if he could, that he’d love to have been given Nashiri-quality due process. Alas, he was killed in Waziristan last September by a U.S. predator drone — an attack the Obama administration evidently decided was more consistent with the rule of law and our image in the Muslim world than one of those awful Bush-style military commissions.

So why did the Bush administration bother to indict Badawi and Quso at all? Because the Clinton administration failed not only to retaliate against al-Qaeda for the Cole attack but even to file charges. Filing charges is of procedural importance: In the event a wanted terrorist is captured by another nation, having charges improves our government’s ability to persuade that nation that the terrorist should be extradited to the U.S. That is why Osama bin Laden, for example, was indicted in June 1998. But filing an indictment in civilian court against a fugitive terrorist does not mean there were ever actually legal proceedings involving that terrorist, nor does it obligate our government to try that terrorist in civilian court.

It is sheer sleight of hand to contend that prosecutorial fretting over the CIA’s interrogation tactics explains Nashiri’s consignment to a military tribunal. The other Cole bombers were not given a civilian trial. And if Badawi is suddenly captured tomorrow, he will not be brought to civilian court any more than bin Laden will be if he is captured. Badawi, like Nashiri, would be detained outside the United States and, if tried at all, tried by military commission.

A final precious angle of Savage’s report is the Times’s suddenly deep respect for military tradition. The Nashiri prosecution is problematic, the paper now says, “because military commissions for war crimes are generally understood to have jurisdiction only over acts that took place during hostilities.” Hostilities (i.e., the war) are generally understood to have commenced on 9/11 — notwithstanding that, by that point, al-Qaeda had already been attacking and declaring war against the United States for years. Therefore, in Savage’s telling, military tradition would not permit a commission trial for the Cole attack, since it happened nearly a year before 9/11.

Nice try. Under military tradition stretching back to the Revolutionary War, military commissions were also “generally understood” to be within the discretion of the commander-in-chief to order unilaterally. That is, no statutory authorization from Congress or review by the civilian courts was necessary. Nevertheless, when the commander-in-chief who issued such an order in 2001 was named Bush, the Times screamed bloody murder.

On cue, the lawyer Left — staffed by many attorneys who now work at the Obama Justice Department — mobilized on behalf of America’s enemies. In a ruling that had little to do with the law and everything to do with the antiwar Left’s vision of international terrorism as a mere law-enforcement matter, a sharply divided Supreme Court held, in the 2006 Hamdan case, that presidentially ordered military commissions were invalid. The commander-in-chief now needed statutory authorization, subject to judicial review.

Congress answered swiftly, passing the Military Commissions Act (MCA). For the Left, then, this is a case of “be careful what you wish for.” The military tradition the Times now finds so alluring is no longer of much relevance. Military commissions now occur not by presidential directive but under the auspices of a statute, enacted by the branch of government constitutionally empowered to define the jurisdiction of the courts it authorizes.

Unlike commanders-in-chief, whose authority to order commissions was dependent on military tradition (in the form of the laws and customs of war), Congress is free to give the courts it has empowered whatever jurisdiction it chooses — it is not hemmed in by such niceties as when the Times thinks hostilities commenced. In the MCA (Section 948d), Congress endowed military commissions with “jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.” (Emphasis mine.)

If this were a law-school exam, it might be worth noodling over whether President Bush could have authorized military-commission trials for pre-9/11 attacks by an enemy that considered itself at war with the United States, regardless of our reticence to respond militarily. But it is neither here not there in Nashiri’s case. Congress has expressly provided that pre-9/11 attacks by al-Qaeda may be tried by military commission. That should be the end of the matter — even for Justice Kennedy, who, though unpredictable, wrote a concurring opinion in Hamdan that is best described as an ode to congressional power.

The Obama administration is very unhappy to be saddled with commissions, but expect the president to get over that quickly when jihadists start getting convicted. He’ll gladly take the “tough on terror” credit as his 2012 campaign gears up — credit the New York Times no doubt will somehow summon the strength to give him.