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02-10-09, 08:58 PM #1
G-Bay. It’s Not the Prison, It’s the Prisoners
Among our illustrious allies in the War on Terror, Yemen ranks right up there with Pakistan, whose government just released nuke-peddler A. Q. Kahn from house arrest. Yemen’s government says it is preparing a major combat operation to drain one of the many swamps where jihad festers. So what preparations is it making? Massing troops? Infiltrating terrorist strongholds to identify top targets? No, Yemen’s approach is a little different: They’re releasing al-Qaeda operatives from prison—more than 170 of them.
It’s a development worth remembering as the Obama administration continues its hand-wringing over the prison camp at Guantanamo Bay, where 245 enemy combatants, including 21 charged with war crimes, are being held.
The Yemen/Gitmo nexus is in the news again because of Abd al-Rahim al-Nashiri, a ringleader behind the October 2000 bombing of the USS Cole in the port of Aden. Last week, the “appointing authority” (sometimes called the “convening authority”), which oversees military commissions at Gitmo, dismissed all charges against Nashiri. The action came after the military judge handling Nashiri’s case denied prosecutors’ request that the case be adjourned for four months while the Obama administration studies the commissions.
The dismissal of charges against Nashiri is far from the end of the case. The charges can be reinstated; the question is, where? That is what the Obama administration is studying. At issue is whether to keep military commissions (which Obama opposed as a candidate), to end them by transferring war-crimes cases to the civilian courts, or to come up with a different system altogether.
Nashiri is a Saudi terrorist who, like many other Saudi terrorists, found friendly operating conditions throughout Yemen, the ancestral home of the bin Laden clan. That’s because Yemen has still more in common with Pakistan: a weak government and an ungovernable tribal hinterland—optimal conditions for a thriving Islamic terror network. A Yemeni court convicted Nashiri in absentia, but that fact is meaningless: The Cole plotters who were rounded up and prosecuted by Yemen all have been released. That includes Jamal al-Badawi, who supposedly was sentenced to death. (Our valued ally has refused to extradite him.) It also includes at least two who bee-lined to Iraq to rejoin the jihad.
The moral of the story is reiterated with each new report of released terrorists returning promptly to terror, as they reliably do: If we didn’t already have Gitmo, we’d have to invent it. There really is a war going on out there. President Obama admitted as much in his inaugural address, to the unspoken dismay, no doubt, of his most ardent supporters. We cannot rely very much on other countries to protect our national security.
It has never been possible, nor thought possible, to win a war in court. There are simply too many jihadists, with the vast majority operating outside the jurisdiction of our laws. When we are fortunate enough to nab one, that usually happens under fog-of-war conditions not conducive to Miranda warnings, police evidence-collection protocols, and the like. And it bears keeping in mind that the purpose of an American trial is to force the government to meet a very high burden of proof in a system developed for the benefit of American citizens enjoying the presumption of innocence. That is why we say we would prefer to see the government fail—i.e., prefer to see the guilty go free—than to see an innocent person wrongly convicted.
War is different. A war is fought—meaning that people are killed and prisoners taken—in order to achieve vital national objectives, particularly the protection of American lives. In that context, we cannot prefer to see the government fail. We need the government to prevail, or our lives and the rights we cherish are in jeopardy. That doesn’t mean the enemy doesn’t get due process, particularly if we decide to put some of them on trial for war crimes rather than simply detaining them for the duration of the conflict. There is, however, a reason it is called due process, rather than, say, trial process. We owe only the process that is due in the particular circumstances. War and peace are not the same circumstance. The process due Americans accused of crimes in civilian courts is not the same as the process due foreign combatants and terrorists captured during military operations.
While 245 prisoners remain at Gitmo, we’ve detained tens of thousands in Afghanistan, Iraq, and elsewhere at one time or another in the course of this war. Gitmo has never held more than 800 prisoners. And even the gross number of detainees in this conflict pales in comparison to the number held, for example, in World War II, during which millions of prisoners were taken. We couldn’t conceivably conduct full-blown civilian trials for everyone detained under the necessities of war. Even in the Clinton years, when trial in the civilian courts was the favored counterterrorism strategy, we tried fewer than three dozen terrorists—even as Americans were attacked year after year.
Like it or not, we require a framework for detaining enemy combatants and trying provable war criminals, and that framework is not the civilian judiciary. The military justice system is, by necessity, going to have to be a part of any meaningful solution.Undeniably, the military-commission system has performed dismally so far, but performance should be distinguished from principle. Remember, we turned to military justice because the civilian system had shown itself inadequate for the purpose at hand—and the purpose, remember, is not to provide due process for our enemies. The purpose is to secure our citizens by neutralizing as many of our enemies as possible.
That means we have to be able to apprehend our enemies and, when appropriate, try them under the laws of war. Those laws—as the Supreme Court reaffirmed in the 2004 Hamdi case—permit the detention of combatants if they are reasonably believed by our war-fighters to be aiding the enemy. We don’t need probable cause or proof beyond a reasonable doubt to detain them.
Some of our enemies can be convicted in federal court. Most of them can’t—at least not until after they’ve carried out the kind of attacks that it is the aim of this war to prevent. We can have the war, in all its imperfections, or we can have those attacks. We can take four months to study it, but there is no avoiding that choice.
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