President Obama is relenting on military-commission trials, and the New York Times is, shall we say, chagrined.
The administration’s retreat can be chalked up to the political climate proximately created by two developments. The first is Congress’s prohibition against the transfer of terrorist detainees from Gitmo to the United States, which makes giving them the bells-’n’-whistles civilian trials preferred by the president and his Justice Department impractical. On that count, the president — in a downright Bush-like signing statement, of all things — floated a very weak constitutional objection to the transfer ban. That huffing and puffing went nowhere, and deservedly so. Thus the administration must deal with reality.
The second significant turn of events to shape that reality was the outcome of al-Qaeda operative Ahmed Ghailani’s civilian trial. Though fully complicit in the 1998 embassy bombings, the terrorist was acquitted on 284 of 285 counts after a judge refused to allow
the prosecution to call its most important witness. As previously noted
, the compromise verdict probably had more to do with a loopy juror than with the court’s ruling. Nevertheless, both the bizarre jury deliberations and the ruling on the witness — which was premised on the notion that a foreign terrorist, whose only connection to the United States is blowing up our embassies, somehow has full-throttle Fifth Amendment rights — served to underscore the risks inherent in a civilian justice system that permits even guilty criminals to escape conviction if doubt is cast on the government’s case. That’s fine when defendants are American citizens accused of ordinary crimes — they’re the ones for whom our justice system was quite intentionally designed that way. For enemy jihadists? Not so much.
The first of the military-commission trials will apparently involve Abd al-Rahim al-Nashiri, the better known alias of the Saudi national whose true name is Abd al-Rahim Hussein Muhammad Abdu. He is a top al-Qaeda operative, responsible for the October 2000 bombing of the U.S.S. Cole.
Nashiri is of immense interest to the Times, but not because he killed 17 American sailors, wounded 39 others, and nearly sank a naval destroyer. The Gray Lady is in a snit because Nashiri was waterboarded by CIA interrogators after being captured in November 2002. This fact results in the most spurious aspect of Charlie Savage’s dispatch:
Mr. Nashiri’s case . . . would attract global attention because he was previously held in secret Central Intelligence Agency prisons and is one of three detainees known to have been subjected to the drowning technique known as waterboarding. Lt. Cmdr. Stephen Reyes of the Navy, a military lawyer assigned to defend Mr. Nashiri, declined to comment on any movement in the case. But he noted that two of Mr. Nashiri’s alleged co-conspirators were indicted in federal civilian court in 2003, and he made clear that the defense would highlight Mr. Nashiri’s treatment in C.I.A. custody. “Nashiri is being prosecuted at the commissions because of the torture issue,” Mr. Reyes said. “Otherwise he would be indicted in New York along with his alleged co-conspirators.”
No he wouldn’t. Savage and Reyes are bloviating. What happened to Nashiri after his apprehension in 2002 is irrelevant to what he did leading up to the 2000 attack, unless the government tries to introduce his interrogation statements as evidence. The interrogation was done to collect intelligence, however, not to elicit a confession, and statements obtained through physical coercion have no place in any kind of trial, civilian or military. Thus, the government surely will not attempt to introduce them. Savage, in fact, implicitly concedes this when he observes that “much of the evidence against Mr. Nashiri consists of witness interviews and documents gathered by the F.B.I. in Yemen after the bombing.” The “torture” narrative and its corollary, that of the CIA’s allegedly sinister use of “black site” prisons, continue to inspire a frisson for the editorial boards that so carefully crafted them. Most Americans, though, care chiefly about whether Nashiri killed members of our armed forces. That is what the trial will be about.