Thus far, in the realm of counterterrorism, Obama’s presidency has been about dialing back exuberant promises made while conflating the public’s war weariness with the Left’s cartoonish indictment of Bush. Yet, there is no real mystery about where Obama wants to take us. He has backed down on closing Gitmo, but he wants it closed. He has backed down — at least until after the midterm elections — on trying the 9/11 hijackers in civilian court, but he wants all terrorists tried in civilian court. He has kept military tribunals available in theory, but, in practice, he won’t use them.
Indeed, for Reuters to depict Obama as “favoring military tribunals in some cases and civilian trials in others” is laughable. The administration consigned a single terrorist, U.S.S. Cole bomber Abd al-Rahim al-Nashiri, to a military commission — and then pulled the plug on it. The president wants to be perceived as pragmatic while clinging to ideology. He kept the commissions that he’d campaigned against and even feigned using them. But, transparently fearful that a successful commission prosecution would undermine his overarching goal of returning to Clinton-era counterterrorism, he killed the commission and hoped no one would notice.
Republicans, however, should take less comfort from the fact that people have noticed. “Obama the pragmatist” may be a discredited narrative, but Reuters’ assertion that “most Republicans say all terrorism suspects should be tried in military tribunals” is one the public, by and large, believes. That is a problem because it is not where most Americans are, nor should they be.
Contrary to the contentions of Obama partisans, Bush counterterrorism was not about removing civilian prosecution from the equation. If anything, national-security conservatives want more civilian prosecutions. We want stepped-up use of statutes, such as material support to terrorism, that enable the government to starve terrorist cells of funding and strangle plots in the cradle. We want aggressive investigation and prosecution of so-called home-grown terrorists who are inspired by Islamist ideology but without operational ties to al-Qaeda and its affiliates. We want the government to stop canoodling with the Muslim Brotherhood’s American satellites.
For one category of offender, we have urged the use of military tribunals: alien enemy combatants. Very specifically, these are jihadists, plotting and carrying out attacks against Americans, as members of the al-Qaeda enemy identified by Congress in its authorization of military force. Controlling such enemy prisoners is a core aspect of war-fighting. Military tribunals have the dual benefit of keeping control of this task where it belongs — in the hands of commanders, not judges — while ensuring that our enemies are not able to exploit civilian due process as a tool of warfare.
To insist that these offenders go to the military justice system is a far cry from wholesale rejection of civilian prosecution. Bush counterterrorism acknowledged that civilian due process has an important role to play, but not the starring role it had in the Nineties — not if we are to prevent terrorist attacks rather than content ourselves with post-atrocity prosecutions.
Republicans need to do a better job of making this clear. The Obama administration has prioritized “outreach” to Islamists. It has quietly stifled the Bush crackdown on Islamic charitable fronts, a lifeline for terrorist organizations. Such policies critically undermine the Justice Department’s proper counterterrorism role. Yet Obama apologists have managed to convince a goodly portion of the public that Obama at least wants the Justice Department to have a counterterrorism role, whereas Republicans want to turn every terrorism case into a military matter.
The sooner that misimpression gets corrected, the more effectively a new Republican Congress will be able to probe what Obama counterterrorism has wrought.
– Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.