February 12, 2010

Al-Qa'idah in federal court or military commissions?

For the most part, I try to provide analysis on this forum about events in or about the Middle East. On occasion, I will venture into the realm of opinion or editorializing when I feel strongly about a particular issue, but always in the context of the Middle East. Like everyone, I have opinions on the entire range of issues, but on this forum, I mainly focus on the Middle East.

The issue of trying al-Qa'idah terrorists in federal/civilian court trials or by military commissions straddles that definition. It deals with American jurisprudence and the disposition of hundreds of al-Qa'idah detainees in U.S. custody, most held at the military detention facility at Guantanamo Bay, Cuba. It also deals with some of the most hardened Islamic radicals captured on battlefields and other venues in the Middle East - it is hard to separate the two.

Almost all of these detainees - their exact status is still in limbo, thanks to semantic ambiguities of the Justice Department - are enemy combatants. Enemy combatants have normally been tried by military courts, military tribunals, military commissions, or whatever term was in vogue, at the time going back to the Civil War. The Military Commission Act of 2006 provides for that today, following a Supreme Court ruling. It affords detainees the right to challenge their detention by U.S. forces or authorities - basically it answers the Supreme Court's ruling that you cannot indefinitely detain people without recourse.

Given that ruling, at some point in time we have to address holding these al-Qa'idah thugs. I will be impolitic here and go on record as saying that I was against moving these detainees to Guantanamo in the first place. I would have interrogated them thoroughly (make your own determination on what that means) and left them in graves in Afghanistan. These vile creatures - by their own admission - planned and supported the slaughter of over 3,000 innocent people, mostly Americans, on September 11, 2001.

What I see now is the current administration wanting to put on a show on the world stage, to showcase American justice. Why? A band of thugs murders 3,000 people in an act of war - remember the 'Usamah bin Ladin fatwa of 1996 declaring war on us - and we are supposed to respond with a criminal prosecution? Call me cynical, but I do not think Attorney General Eric Holder nor President Barack Obama really means to try these killers - they are more intent on putting the previous administration on trial.

For whatever reason, Obama and Holder believe that embarrassing former President George Bush and Vice President Dick Cheney will improve America's standing in the world. While that might play well on the upper west side of Manhattan, it has no real effect in the real world. Does anyone really think that the people who want to kill us will have their minds changed by the fact that we have a federal trial in New York as opposed to a military commission in Gitmo? Or that someone on the fence will say, "Wow, they tried our brothers in civilian court before they executed them - maybe they really are the good guys." As my niece says, PAHLEEZE.

There are a host of other concerns about using the federal court system. There is the defense's arguable right under our system to have access to a lot of classified information. In the case of Shaykh 'Abd al-Rahman, often called "the blind shaykh," the government was compelled to disclose the true identities of more than 20 intelligence assets. Because of the criminal actions of one of the defense attorneys, much of that information was passed to al-Qa'idah. We in the military call this "shooting yourself in the foot."

I am also concerned that some federal judge - bound by what he or she perceives to be the norms of criminal law - would dismiss many of the charges or throw out much of the government's evidence as "fruit of the poisoned tree" because of the means obtained. Despite Holder's prejudgment that the defendants will be found guilty - which raised legal issues of yet another dimension - there is no guarantee of a conviction.

Then there is the time and money - do we really need this type of kabuki dance going on in lower Manhattan for three years, with the price tag of maybe a billion dollars. You can buy a lot of JDAMs (GPS-guided munitions) for that kind of money. Rather than motion them to death in a court in New York, let's put some American steel on al-Qa'idah targets in Pakistan, Yemen, Somalia etc. - but that's just me....

A military tribunal should have the same result as a federal court - executions with no release of classified information with no security/logistics nightmares and no grandstanding.

I was surprised - pleasantly - that most Americans wanted "Christmas bomber" 'Umar Faruq 'Abd al-Mutalab moved to Guantanamo and water-boarded. They get it - Holder and Obama don't.