An Under-the-Radar Victory for Due Process in the War on Terror

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Sulaiman Abu Ghaith

As I'm sure you're aware by now, the usual suspects are engaged in a group freakout over the president's lack of consideration for civil liberties in the war on terrorism so much so that some, like David Sirota and Glenn Greenwald, have aligned themselves with crackpot hooplehead Rand Paul, who has little if any regard for the civil liberties of women and minorities (see also his support for personhood amendment, his support for states rights' nullification and his opposition to key sections of the Civil Rights Act).

Regardless of these brain-scrambling alliances, I haven't read a single article by some of these activists in which they, 1) acknowledge the president's efforts to wind-down military commissions, and 2) acknowledge the fierce political resistance the administration has confronted every time it's attempted item number one.

Here's why I bring this up. While everyone was losing their shpadoinkle in the Holder/drones fracas, exaggerating and misrepresenting what the administration's policies are regarding domestic use of lethal military force, news broke that Sulaiman Abu Ghaith, Osama Bin Laden's son-in-law and an "official spokesman" for al-Qaida had been captured alive in Turkey and was extradited to New York City where he plead not guilty to terrorism charges in federal court.

Briefly, I half-wondered whether some of the drone insanity last week was deliberately orchestrated as a distraction while Abu Ghaith was shuffled into New York for trial without hardly anyone noticing. If it was, in fact, intentionally planned that way, the administration played it quite well because when Eric Holder and the White House had previously announced that terrorism trials would be moved to American soil back in 2009 and 2010, everyone lost their minds.

As promised, on his second full day in office, the president signed Executive Order 13492, which closed the military prison at Guantanamo Bay. The plan was to move the 240 detainees to the empty Thomson Correctional Center in Illinois until they were put on trial in the federal court system, not unlike Abu Ghaith. But as soon as it was announced, heads began to explode. No one wanted suspected terrorists in their backyards, even though ostensibly far worse criminals were already being held in various prisons. Stirred up by the mass outrage, the U.S. Senate voted 90-to-6 to cut the necessary $80 million (pocket change for the government) to close the facility. The Democrats -- many of them liberal Democrats, like Russ Feingold, as well as liberal superhero Bernie Sanders -- voted to cut the funding under the dubious excuse that the president didn't have a plan for the closure. Ron Wyden, who, last week, helped Rand Paul with his filibuster, also voted to cut the funding. Other top-shelf senate Democrats who voted against the closure included John Kerry, Chuck Schumer, Dianne Feinstein, Sherrod Brown, Barbara Boxer and the late Daniel Inouye.

Inexplicably, the press and too many liberal bloggers to this day continue to accuse the president of breaking his promise to close Guantanamo. I'm not sure what they expect the president to do in this case. Should he defy Congress and do it anyway? If so, wouldn't that fly in the face of the rule of law and separation of powers? You can't have it both ways: either the president should play by the rules, or he should be allowed to act on his own accord as a unitary executive.

Anyway, that was just the beginning. Later, Congress refused to provide funding for the trial of Khalid Sheikh Mohammed, along with co-conspirators Ramzi bin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali and Mustafa Ahmed al-Hawsawi, in New York City per the administration's plan. This after extensive protests that included the families of 9/11 victims as well as New York mayor Michael Bloomberg. In early 2011, Congress further blocked the closure of Guantanamo by passing an amendment to that year's NDAA which outright banned the use of Pentagon funds to close Guantanamo. And as if that wasn't enough, late last year, the senate voted again, this time 54-41, to block the transfer of the Gitmo detainees to American soil. In fact, every NDAA has included language to block the closure in spite of veto threats by the president.

Glenn Greenwald in his usual cloak-and-dagger conspiratorial style wrote that Obama never intended to "close Guantanamo," (his scare-quotes) and, instead, simply wanted to create "Gitmo North" where indefinite detention would continue, but worse: Greenwald argued that indefinite detention would be imported to the United States -- predictably hyperbolic language intended to scare readers into thinking the next step is indefinite detention of you. Not surprisingly, he skimmed over the fact that 30 detainees would've been summarily released, while 100 more would've been prosecuted in court. That's more than half of the detainees, and that was simply the plan at the outset. Who knows how many others would've been shuffled through federal trials with due process if Congress had allowed the prison to be closed. Greenwald went on to accuse the president of being a civil liberties dilettante -- dabbling in symbolic, "pretty" gestures. Interesting how Rand Paul's brief dabbling in anti-drone rhetoric and filibusters was unquestionably embraced.

In the midst of being attacked by all sides on the issue, Holder said the following in a speech to the American Constitution Society:

...victory and security will not come easily. And they won't come at all if we adhere to a rigid ideology, adopt a narrow methodology, or abandon our most effective terror-fighting weapon -- our Article Three court system. [...] And I will continue to point out one indisputable fact, which has been proven repeatedly, during this Administration and the previous one: in disrupting potential attacks and effectively interrogating, prosecuting, and incarcerating terrorists -- there is, quite simply, no more powerful tool than our civilian court system.

Again, I'm still not sure how Rand Paul's brief, superficial and opportunistic tourism through the land of anti-drone apoplexy is considered earnest and genuine, but Holder's remarks in defiance of Congress about upending military commissions and providing due process for accused terrorists is seen as a conspiratorial flimflam.

Back to Abu Ghaith. His domestic trial in federal court isn't quite a sure thing yet because some of the same protesters are lining up against Holder's process of unraveling the military tribunals and bringing more terrorists into the Article III system. In that regard, it ought to be applauded as a victory for due process and a victory for those of us who support an end to the war on terrorism. However, in so far as there continues to be wartime military commissions, we only need to return to the Rosetta Stone solution for ending all of this: an immediate repeal of the 2001 Authorization for Use of Military Force and the end of the war on terrorism, along with its adjoining war powers, including the justification for indefinite detention of enemy combatants.

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