Thursday, February 5, 2009
And so it begins. Tonight Mr. Obama ordered charges dropped "without prejudice" against Abd al-Rahim al-Nashiri, the accused planner of the USS Cole attack in Yemen in 2000. ABC News first reported the story this evening.
Tonight, the convening authority for the Department of Defense Military Commission, Susan Crawford, withdrew the charges. Tomorrow Mr. Obama will meet with the families of 9/11 and of the USS Cole and explain why he is dropping charges on a terrorist. I'm wondering if they will bring shoes to throw. He will assure them that this step was not done to be lenient towards al-Nashiri. The move is being done to stop the continued prosecution of al-Nashiri in a court system that his administration may ultimately find illegitimate.
Somehow I don't expect they will be pleased. However, "without prejudice" does mean that the charges can be refiled in a military commission or a federal court or military court. But we already have a system in place for prosecuting these detainees, so what is the purpose here? This just takes the al-Nashiri case back to ground zero (so to speak.)
You may remember that last week a military judge denied Obama's request to delay proceedings for 120 days saying that he found the request's reasoning "unpersuasive." The order was granted in all cases except this one. Obama's executive order calls for a panel to study where in the United States the prisoners at Gitmo might be moved and in what courts they might be tried. But what about the 2007 Senate resolution that forbids bringing Gitmo detainees to American soil?
Congress has twice addressed the issue of military tribunals and these laws remain in force.
Lt. Col. Gordon Cucullu, author of Inside Gitmo, says that "If detainees are indeed prosecuted in U.S. courts, the issue of evidentiary standards looms large, as does the handling of classified intelligence data. The battlefield is a poor environment for forensic criminal investigations, which may result in some detainees being summarily discharged." He also points out that many of "these detainees hold information that, if publicly released during a trial, would be considered a national security breach by intelligence services."
Obama's withdrawal of charges now means we are holding al-Nashiri WITHOUT CHARGE which is what people originally hated about Gitmo. Human rights groups are bound to love this twist. Vincent Warren, the executive director of the Center for Constitutional Rights, has said in The New York Times that "It only took days to put these men in Guantanamo; it shouldn't take a year to get them out." Just let 'em go? Send al-Nashiri back to his home country so he can plan more attacks? Yes, he will remain in custody for now, but isn't it only a matter of time?
The issue of what to do with al-Nashiri has now been complicated by Obama's own hands. His proceedings were moving along; his arraignment on capital charges is scheduled for February 9. The families of the 17 soldiers killed and many others wounded are ready for justice.
The defense attorneys for other cases have suggested said they would also seek withdrawal of charges against their clients, according to the Washington Post.
It seems to me that every message we are sending to the terrorist world so far has been one of weakness. We've "extended the open hand" to Iran, made plans to meet with Chavez, ordered the closure of Gitmo, suspended actions in trials, dismissed charges against a terrorist. We've apologized to Iran for "dictating" rather than listening, in essence, trashing our own country.
Meanwhile, as Victor Davis Hanson suggests, "the North Koreans are readying their missiles; the Iranians are calling us passive, bragging on nukes and satellites; Russia is declaring missle defense is over...Pakistanis say no more drone attacks."