Progress in closing Guantanamo

In his campaign, president Obama famously promised to “close Guantanamo Bay prison ” early in his administration. It didn’t happen. Then Eric Holder determined that he would try Khalid Sheik Mohammed in federal court in New York City. That didn’t happen.

The death blow was struck by New York’s mayor, Michael Bloomberg, who had previously pledged his support to Holder. On January 27th, Bloomberg distanced himself from the Justice Department, saying that a trial in New York would be too expensive. For months, companies with downtown real-estate interests had been lobbying to stop the trial. Raymond Kelly, the commissioner of the New York Police Department, had fortified their arguments by providing upwardly spiralling estimates of the costs, which the federal government had promised to cover. In a matter of weeks, in what an Obama Administration official called a “classic City Hall jam job,” the police department’s projection of the trial costs went from a few hundred million dollars to a billion dollars.

Eventually, the conservative movement relaxed and concluded that the idea of granting terrorists American style civil rights had lost. Not so fast.

In another of those Obama fast moves, the concept of civilian trials just won the contest. As Mark Twain said, the lie is half way around the world, while the truth is still getting its boots on.

In the blink of an eye, the second Obama term has turned the clock back to the pre-9/11 days, when al-Qaeda was a law-enforcement problem, not a national-security challenge.

Of course, it was a Friday afternoon. That’s when Obama does his best work.

Last month, Turkey found itself in custody of longtime al-Qaeda bigwig Sulaiman Abu Ghayth, the son-in-law of Osama bin Laden and described by the FBI as the terror network’s “consiglieri.” To satisfy its Islamist base, Erdogan’s government pretended to extradite the Muslim terrorist to his native Kuwait rather than cooperate with American agencies. But the Turks conveniently shipped Abu Ghayth to Kuwait by way of Jordan . . . where the U.S. has more open, effective counterterrorism cooperation and where our government was thus able to take Abu Ghayth into custody.

So, was this high-ranking member of the enemy forces shipped to Gitmo for long-term detention and interrogation in the hope of gleaning fresh intelligence? Of course not. Because Abu Ghayth was not detained at Gitmo, he was not subject to the statutory prohibition against using government funds to transfer enemy combatants into the U.S. So, while no one was paying attention, the administration whisked him into lower Manhattan, where his indictment in civilian court was promptly announced. He thus promptly received legal representation — so much for interrogation — and is enjoying all the protections of the Bill of Rights.

So the show trial that Holder promised for KSM is now on schedule for OBL’s son-in-law. All the security braeches that would be expected in the KSM trial can be expected here.

According to a government press release, prosecutors plan to prove the overall al-Qaeda conspiracy against Abu Ghayth — going back to 1989 and “including the attacks on the United States on September 11, 2001, in New York, Virginia, and Pennsylvania, which killed approximately 2,976 people.”

Understand what this means. Other than the relative notoriety of the culprits, bringing Abu Ghayth to New York is no different from bringing KSM to New York for a civilian trial. The Obama administration’s intention is to try the same case against Abu Ghayth that it planned to present against KSM. This is a bold presidential decision to undermine military commissions and to proclaim that the civilian courts are the government’s venue of choice for all terrorism cases — even those against wartime enemy combatants.

Of course, Holder guaranteed that KSM would be convicted, proving the show trial rationale.

Moreover, as Attorney General Holder must know, by proceeding with this civilian prosecution in New York at the very moment when KSM and the other 9/11 defendants are facing a military commission at Gitmo, he has given KSM & Co. an exquisite legal argument that proceeding with their military commission would be arbitrary and unjust in light of the grade-A due process Abu Ghayth is getting. That is, the government is virtually inviting the federal courts to invalidate military commissions — which was a top goal of many Obama administration lawyers back when they were in private practice, volunteering their services to terrorist detainees.

It will be interesting to see how much this damages the, admittedly lukewarm, prosecution of the war on al Qeada by this administration. The treatment of Major Hassan is an illustrative example.

Attorneys for the suspect charged in the Fort Hood shooting spree have filed their appeal of rulings that he can have his beard forcibly shaved before his murder trial.

Last month, the U.S. Army Court of Criminal Appeals upheld Gross’ order to shave Hasan. His court-martial remains on hold pending the appeals.

For the opposite arguments, see the Jane Mayer New Yorker link above.

Holder tried to address his critics with lawyerly detachment. Dick Cheney had equated Holder’s approach to handling terrorism with giving “aid and comfort to the enemy”—the legal definition of treason. Holder said of Cheney, “On some level, and I’m not sure why, he lacks confidence in the American system of justice.” He added that he had seen documents making clear that Cheney’s office was the driving force behind the Bush Administration’s most controversial counterterrorism policies, especially those sanctioning brutal interrogations. He said of Cheney, “I think he’s worried about what history’s judgment will be of the role that he played in making decisions about everything from black sites to enhanced interrogation techniques.” Holder said that he doesn’t know Elizabeth Cheney, but noted, with a laugh, “She’s clearly her father’s daughter.”

Holder is clearly the guy who recommended the last minute pardons that Bill Clinton signed as he left office. I have no confidence in any of the decisions of this administration.