Failure to Execute: Obama Halts the Case Against the Cole Bomber
It’s a sleepy Friday in late August, the president is on another vacation, Congress is out of town, no one is paying much attention. What better time for the Obama administration to pull the plug, once again, on military commissions? This time, it has halted the case of top al-Qaeda operative Abd al-Rahim al-Nashiri, who was to be prosecuted by a military court for the Cole bombing. The Washington Post report is here, and Jen Rubin has thoughts at Contentions.
None of this is terribly surprising. Prosecuting the Cole case by military commission sticks in the Left’s craw because it shows the incoherence of the Obama/Holder position. They want to treat the war like a crime and endow our enemies with all the rights and advantages of civilian courts; yet, they went military in the Cole case, despite the fact that there is a pending Justice Department civilian indictment addressing that attack. There can be only one explanation for that: they are afraid the case against Nashiri is weak and might not hold up under (slightly) more exacting civilian court due process. That is, the Obama/Holder position is not principled — for all their “rule of law” malarkey, they are willing to go where they have the best chance to win. But there were no military commissions when the Cole was bombed, so what is the basis for trying it militarily? Answer: the 9/11 attacks and the ensuing war... except the Left doesn’t accept that it’s a war and the administration wants to prosecute the 9/11 plotters in civilian court. None of it makes any sense. -- Andy McCarthy
One of the most difficult tasks for any outsider is to fathom the motivations of government prosecutors in dealing with particular cases. But the McCarthy account does not appear to make any sense to me. If the government thinks that its case could be too weak for civilian court (because of more restrictive rules on hearsay evidence) that is not a reason to stop the proceedings before the military commissions, unless the case is too weak for that forum as well. At that point we are left in the position where there is enough evidence to hold for the duration of the conflict but not enough to convict, especially for death. This does not sound like a decision to prefer civilian courts to satisfy Obama's own left wing. Indeed, on many of the security issues, the Obama policies have strongly resembled the Bush policies with only one exception. Bagram Air Force base is the new preferred destination because it is outside territorial limitations which we are told actually makes a different in dealing with these matters by Supreme Court case law.
In my view this incident is symptomatic of a deeper flaw: a President and Attorney General who cannot execute any game plan. It reminds me of the waffling on the Mosque. What is needed is more coherence and more transparency. And those are not possible without more consistency.
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Jul '10
Re: Failure to Execute: Obama Halts the Case Against the Cole Bomber
I'm thinking reality show.
Release these guys into hostile terrain - say Michelle Bachmann's district - with nothing but a prayer rug and one of those cool curvy swords. Yeah, scimitar.
And then you put a bunch of killer drones in the air.
And here's the beauty part - the audience at home can control the drones with their Wii or Xbox.
Rob, can you get me a meeting?
Jun '10
Re: Failure to Execute: Obama Halts the Case Against the Cole Bomber
I am thinking this is war. Don't bring them home to the USA, and don't let them kill again.
Jun '10
Re: Failure to Execute: Obama Halts the Case Against the Cole Bomber
Question: Is Holder the worst AG in US history? Or is he merely operating under instruction from the worst president in US history. Discuss amongst yourselves, but remember there's a mid-term in November.
May '10
Re: Failure to Execute: Obama Halts the Case Against the Cole Bomber
Richard Epstein
What is needed is more coherence and more transparency. And those are not possible without more consistency.
My reading of McCarthy's post was that this decision is about consistency: trying al-Nashiri in civilian court brings the Cole case in line with Holder's continued insistence on treating 9/11 terrorists as everyday criminals.
Absent a complete, principled plan, stick with Bush policies... with the occasional nod to left-wing thought in symbolically important cases.
Jul '10
Re: Failure to Execute: Obama Halts the Case Against the Cole Bomber
He may be the worst.
But Alberto Gonzalez was the most embarrassing.
The Bushes just could not get their affirmative action groove right.
Edited on Aug 27, 2010 at 7:36pmMay '10
Re: Failure to Execute: Obama Halts the Case Against the Cole Bomber
Ten years since the Cole bombing and no trial has even been started. Pull the trigger or let him go. This mocks our whole system.
May '10
Re: Failure to Execute: Obama Halts the Case Against the Cole Bomber
Mr. Epstein, I'd be interested to know your thoughts on how the Reagan Administration handled the legal response to the Marine Barracks bombings in Beirut in 1983, if there was one. I thought the civil suit filed by the victims and their families against Iran was the only legal action. I don't even know if comparing and contrasting the Cole and Marine Barracks bombings would be a useful exercise. I agree that it appears Team Obama is very inconsistent. But what is the right course? Have we any precedents as examples?
Jul '10
Re: Failure to Execute: Obama Halts the Case Against the Cole Bomber
Richard Epstein
What is needed is more coherence and more transparency. And those are not possible without more consistency. ·
The Obama Administration is consistent, consistently incoherent and opaque.
Jun '10
Re: Failure to Execute: Obama Halts the Case Against the Cole Bomber
The left is apoplectic that 18% of Americans think that the President is a Muslem. The next polls may show a percentage that think Eric Holder is Al-Qaeda
Edited on Aug 28, 2010 at 1:43pmJun '10
Re: Failure to Execute: Obama Halts the Case Against the Cole Bomber
Karen: Thought that I had chosen the most hyper-patriotic avatar possible, I think you trumped me, way to go!
Re: Failure to Execute: Obama Halts the Case Against the Cole Bomber
This is yet another sign of the Obama administration’s fundamental unwillingness to treat terrorism as war. That is the only explanation, to me, about why it would drop military charges against al-Nashiri in favor of civilian trials. If the case is indeed weak, as you note, Richard, it will be harder to try the case under civilian rules of evidence – though a conviction in military court, with an educated jury, is no sure thing. The confusion harms our national security beyond just whether al-Nashiri is convicted or not. Relying solely on the law enforcement system will restrict our ability to carry the fight to al-Qaeda. When we capture their leaders – if we can even do that any more – they will invoke their right to remain silent and demand lawyers. Our troops in the field will have to worry about following rules of evidence gathering and interviewing witnesses that stand up in civilian courts thousands of miles away. They will have to worry about warrants to conduct surveillance. Our troops’ fighting edge will be dulled. Shooting predator missiles from distance does not make the problem antiseptically go away.
Re: Failure to Execute: Obama Halts the Case Against the Cole Bomber
You are surely correct, John, that those persons who are enemy combatants should be treated as though they were terrorists and not as criminals. Rather than make that determination, the Obama administration does nothing, but sit on its heels, which adds additional elements of uncertainty into the mix. But there is one issue that both they and you have to confront in some cases, but by no means in all. How do we know whether someone who is taken into custody is in fact an enemy combatant? That problem does not arise for persons taken on the battlefield, where easy documentation of capture is done in any event in the ordinary course of business. The government has to know whom it has captured and where. But the issue is more troubled when bounty hunters turn in feudal rivals as enemy combatants when their only crime is to have powerful enemies in remote villages. In these case where the pedigree of custody is uncertain, habeas corpus or some equivalent is in my view appropriate to see which track these individuals should go down. [1/2]
Re: Failure to Execute: Obama Halts the Case Against the Cole Bomber
I do trust the military, which has an excellent tradition of internal self-governance, to give this kind of hearing. I do fear the willingness of Congress and civilian authorities to choke off that line of review. It is a small concession to error in the name of human decency. It will go a long way to stop the nasty attacks on the legitimacy of the United States in dealing with the entire question of enemy combatants within its larger social context. [2/2]
Re: Failure to Execute: Obama Halts the Case Against the Cole Bomber
I tend to agree that a hearing should be held to make sure that people who are detained are in fact enemy combatants. As Richard says, this is easily done when enemies are captured on the battlefield; it is difficult when the enemy chooses to disguise themselves as civilians in order to infiltrate into our homeland and attack our civilians. At the same time, no one wants to detain people by mistake. It serves no purpose, and is a waste of resources, for our military to hold innocent civilians.
Where we disagree is that federal judges, using the ancient writ of habeas corpus, are the right people to do this job. Historically, the military conducts these hearings where there are cases of doubt. I believe that we should keep the hearings within the military system. Civilian judges are utterly unfamiliar with military and intelligence matters, and their imposition of criminal law standards, I worry, will place the wrong incentives on our troops and agents who are currently carrying out the fight with al Qaeda. (1/2)
Re: Failure to Execute: Obama Halts the Case Against the Cole Bomber
Civilian hearings also risk the disclosure of intelligence, and its sources and methods, into the public sphere, where they can be picked up by the enemy. I am confident that the military would conduct fully fair hearings, but ones that protect intelligence from disclosure and are better balance with operational needs.
The last concern is with executive oppression. While this is always a concern, I simply see no evidence, under either the Bush or the Obama administration, that the authority to detain enemy combatants is being used to oppress Americans, the political opposition, etc. Some think that checks on the executive ought to be increased in this war. I disagree; I think the unusual nature of the conflict and the enemy -- particularly its covert nature and the use of surprise attacks on our civilians -- require that we give the executive more discretion than in a conventional war. (2/2)
Re: Failure to Execute: Obama Halts the Case Against the Cole Bomber
In the spirit of cooperation, I tend to agree with you, John, that a civilian trial is not necessary, which is why I said earlier that the military has "an excellent tradition of self-governance." My disappointment with the Military Commissions Act was not directed toward separation of powers concerns, but with the grim fact that after the Congress authorized these hearings, it did so in a slipshod fashion. As I understand matters, the military is quite willing to give more extensive protections that Congress supplied. If so, someone should listen to them and not contradict the experts when they have a greater respect for individual liberty than the political branches. The difficulty that Obama has in making intelligent adjustments here is that he appears to be so weak and indecisive that people will be happy to read into sensible reforms the fear that the President has caved. Only consistent and forthright leadership can generate public confidence that changes in policy are not harbingers of going off some deep end. The President, and the Congress, have real vulnerabilities on that point.
Jun '10
Re: Failure to Execute: Obama Halts the Case Against the Cole Bomber
Well. Ok, then.