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Will Obama Sell Out on Terrorist Trials?

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In the dark farce that is the Obama administrations counter-terrorism policy, decisions are now, it seems, being made by whoever makes the most noise, regardless of whether what they are shouting for actually makes sense.

Since last November, when Attorney General Eric Holder first announced that five men including Khalid Sheikh Mohammed would face federal court trials for their alleged involvement in the terrorist attacks of September 11, 2001, critics have pushed to keep the men at Guantánamo, and to try them instead using the latest version of the military commission trial system that was dragged from the grave in November 2001 by Dick Cheney, who, at the time, was looking for a bent system in which to try and execute enemy combatants with the minimum of due process.

Cheney’s attempts to thoroughly subvert the Constitution failed, however, and in June 2006, the Supreme Court ruled that the commissions were illegal because their structures and procedures violated both the Uniform Code of Military Justice and the Geneva Conventions. Congress then revived the commissions, in the Military Commissions Act of 2006, but although Mark 2 was a slight improvement on the original version, the commissions never succeeded in persuading anyone with a genuine respect for the law and with an interest in the effective prosecution of terrorist suspects that they were much more than a joke; a half-baked process, full of holes, in which the military judges struggled to cope with the unfamiliar and often bewilderingly imprecise legal terrain, and only three verdicts were delivered.

When President Obama suspended the commissions, on his first day in office, sensible people were overjoyed, as it seemed that the president had understood that federal courts were more than capable of handling cases related to terrorism, and had secured convictions in 195 terrorism cases (out of a total of 214) between the 9/11 attacks and June 2009.

In fact, as Human Rights First explained in a major report examining the federal courts record on cases related to terrorism, the statutes prohibiting material support of terrorist organizations were drafted very broadly, causing concerns that they could be used to penalize individuals for exercising legitimate First and Fifth Amendment rights. Human Rights First suggested that, over the years the courts have construed and Congress has amended the statutes so that they are less susceptible to abuse, but even so, [b]ecause material support prosecutions do not require that any act of terrorism actually occurred, and have successfully involved prosecuting persons who enrolled at terrorist training camps, who acted as messengers for terrorist leaders, who intended to act as doctors to terrorist groups, or who raised money to support terrorist organizations, they can potentially result in overreaching.

In other words, cautious lawyers worry that it is, perhaps, too easy to secure convictions in federal court cases involving material support to terrorism, whereas in the venue favored by Eric Holders critics the military commissions knowledgeable lawyers have pointed out that there is no precedent for pursuing material support cases, and, last summer, lawyers for the government unsuccessfully urged Congress to drop material support as a charge in the revived commissions, fearing that it would be overturned on appeal.

Despite the federal courts impressive track record, and for reasons that have never been adequately explained, President Obama decided, by May last year at the latest, to work with Congress to revive the commissions. This was a major mistake, as numerous well-qualified critics including Lt. Col. David Frakt, Lt. Col. Darrel Vandeveld, and retired Rear Admiral John Hutson explained to various Senate and House Committees last summer, when the criticisms mentioned above were raised.

It appears that the president may, with some cynicism, have reintroduced the commissions both to assuage Republican critics (and, perhaps, critics within his own party), and may also have been persuaded by his interagency Task Force, which reviewed the Guantánamo cases throughout last year, that restoring the commissions would provide a second tier of justice for those cases in which the evidence was less than watertight.

Nevertheless, the decision to revive the commissions provided invaluable leverage to those who opposed civilian trials outright: deluded individuals whose belief in the commissions importance was not based on any evidence that they actually worked (when they were palpably useless compared to federal court trials), but out of a dogged belief that only a military arena was suitable for trying terrorists.

These critics alarmingly large in number, it seems had persistently ignored, and continue to ignore, the inconvenient truth that, despite his bluster, George W. Bush prosecuted terrorists in federal court, and, in fact, had far more success in federal court than in the military commissions at Guantánamo.

The reason for this counter-productive denial of reality boils down to just one thing: the critics insistence that America is at war with terrorists, who, as a result, cannot and must not be regarded as criminals, even if all the evidence, including the successful prosecutions of terrorists in federal court under George W. Bush, demonstrates that their approach will, in all likelihood, result in more legal challenges and less lengthy sentences. In order to hold firm to their bellicose rhetoric, the critics are, it seems, prepared to undermine their own case where it counts the most: in a court before a judge and jury.

In case anyone has forgotten, two of the three men convicted in the military commissions, David Hicks and Salim Hamdan, are now free men, having served very short sentences, and in the case of the third man, Ali Hamza al-Bahlul Ali Hamza al-Bahlul, who was sentenced to life in November 2008 for making an al-Qaeda propaganda film, lawyers are currently appealing his sentence.

Inside the Obama administration, only one man, Attorney General Eric Holder, seems to understand the importance of holding firm on the decision to try Khalid Shiekh Mohammed and the four other men in civilian court. Last month, Holder told Jane Mayer of the New Yorker, I don’t apologize for what I’ve done. History will show that the decisions we’ve made are the right ones.

Last week, in testimony before the House Appropriations Subcommittee on Commerce, Justice and Science, Holder defended his position. When Texas Rep. John Culberson raised the topic of Ahmed Khalfan Ghailani, a high-value detainee accused of being involved in the African Embassy bombings in 1998, who was transferred to New York last May to face a federal court trial that will begin next year, Holder had a swift response when Culberson asked why he was being put forward for a civilian trial when he was a foreign national, alerting Culberson to the readily accessible fact that other conspirators in the bombings had already been tried and in a major national security speech last May, when he referred to prisoners who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States, and the policy was confirmed in January, when the Task Force on the prisoners future delivered its findings, and recommended that 47 of the remaining 188 prisoners should continue to be held indefinitely without charge or trial.

As well as endorsing the notion that preventive detention is somehow acceptable (which it is not), and endorsing the notion that the preventive detention of prisoners at Guantánamo is acceptable because they were tortured (which is even worse), Obama and his Task Force also, effectively, announced with these statements that there was a three-tier system of justice at Guantánamo, consisting of federal court trials, military commissions, and indefinite detention without charge or trial.

Last week, picking up on this, Benjamin Wittes of the Brookings Institute, who has long argued for the creation of a new national security court, used the warped logic of this three-tier system to argue, in a Washington Post Washington Post op-ed with former Assistant Attorney General Jack Goldsmith, that the most sensible way forward was not to bother trying Khalid Sheikh Mohammed at all, and simply to carry on holding him in military detention. As they explained:

Both the Obama administration and the Republicans who object to trying him in federal court accept the legitimacy of such detention as a traditional incident of war for those in the command structure of al-Qaeda, and perhaps for associated forces as well. In general outline, so do the courts. Given these facts, the politically draining fight about civilian vs. military trials is not worth the costs.

Wittes and Goldsmith have a point, of course, but only because of the mistakes made by Obama, who put all the cards back on the table last May when he should, instead, have insisted that prisoners would either be released or put forward for federal court trials. The refusal to stick to unassailable principles has been nothing short of poisonous, and the result, sadly, is that justice itself has become nothing more than a commodity, to be bartered and traded by those who shout the loudest.

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    Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at: www.andyworthington.co.uk.