Call it the grand slam. The Obama/Holder Justice Department is about to: (1) undermine a critical tool for prosecuting terrorists by military commission, (2) force more enemy-combatant cases into the civilian federal courts, (3) advance the transnationalist agenda to subordinate the Constitution to international law, and (4) provide what we might call “material support” to a convicted terrorist.
Two years ago, Mohammed Dawood, the Australian terrorist better known as David Hicks, pleaded guilty before a military court to providing material support to al-Qaeda. Because Dawood was detained for six years at Guantanamo Bay after his late 2001 capture in Afghanistan, the case became a cause célèbre for the Australian Left. This brought considerable pressure to bear on prime minister John Howard who, in turn, pressured the Bush administration to repatriate Dawood. The Aussies have been stalwart allies, so the Bush administration complied, accepting a guilty plea that permitted a sentence of a little more than time served. Dawood was allowed to return home — notwithstanding that “home” for him had been the jihad, not Australia, since the late 1990s.
Case closed — or at least it should be. But it’s not. The Australian press reports that Dawood’s crack international-law experts are angling for a repudiation of his guilty plea. They contend that material support to terrorism is not a war crime under international law; therefore, the argument goes, the military commission could not charge him with it. The claim is specious, but it has nevertheless found a sympathetic ear in today’s Justice Department, which teems with lawyers who spent much of the last eight years alongside Dawood’s attorneys in the Gitmo defense bar, representing America’s enemies in lawsuits against our country.
In July testimony before the Senate Armed Services Committee, Assistant Attorney General David Kris conceded that material support is “a very important offense in our counterterrorism prosecutions” in the civilian courts. Yet, he fretted, “there are serious questions as to whether material support . . . is a traditional violation of the law of war.” This, purportedly, is a problem because “the president has made clear that military commissions are to be used only to prosecute law-of-war offenses.” Jeh Johnsen, installed by Obama as counsel to the Pentagon, concurred, reiterating that there is doubt about the offense’s status as a war crime and that Obama “has made clear that military commissions are for law-of-war offenses.” On cue, Dawood’s lawyers leapt on this testimony as a “welcome” basis for exonerating the terrorist.
Committee Republicans were too polite to say so, but in bygone Bush days Democrats were quick to point out that they didn’t give a hoot about what “the president has made clear,” since it is Congress that writes the laws. And here, Congress has written the applicable law. It’s far from clear that material support could not qualify as a war crime suitable for trial by a traditional military-commission court, but that is academic now. We are not dealing with traditional military-commission courts — i.e., courts authorized by the president in his capacity as commander-in-chief under Article II of the Constitution.
We did start out with such courts after 9/11. But the Gitmo defense bar protested until, in 2006, the Supreme Court’s liberal bloc succeeded in invalidating those arrangements in the Hamdan case. The justices asked Congress to intercede, and Congress did just that in the 2006 Military Commissions Act (MCA).
This was a constitutionally significant event. Even though the MCA did not change the name of the tribunals in question — they are still called “military commissions” — these tribunals are now creatures of American statutory law, not international law. It is arguably true that the president is bound by international law — specifically, by the laws of war — in authorizing military commissions. But there are no such limitations on Congress. Unlike the president, our lawmakers are empowered by Article I of the Constitution to create new federal courts, to define the jurisdiction of those courts, and to prescribe all federal crimes, including “Offenses against the Law of Nations,” that may be prosecuted in those courts.
In his testimony, Kris elaborated that “identifying traditional law-of-war offenses can be a difficult legal and historical exercise.” That is certainly true under international law, a dizzying corpus that is ever evolving at the whim of progressive law professors and international bureaucrats predisposed against wartime measures that elevate national-security concerns over due process for terrorists. In the United States, however, we are not subject to these whims — unless we choose to be. The reason, for example, that we have a war-crimes statute (Section 2441 of the federal penal code) is because, in our system, law is made by representatives who are democratically accountable to the American people.
In enacting the MCA, those representatives did not just rubber-stamp President Bush’s handiwork — though they could properly have done that. Instead, they authorized military courts for the war on terror, defined who could be charged in them, and carefully prescribed what charges could be brought. In doing so, Congress avoided the difficult legal and historical exercise that so concerned Kris: The commissions were vested with jurisdiction to try both war crimes and any other offense, including material support, listed by Congress in the MCA. (See Section 948d: “JURISDICTION. — A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war.”)
In endeavoring to scrub material support from the menu, the Obama administration is confusing matters by highlighting questions of nomenclature, not substance. Let’s say that, in the MCA, Congress had done everything exactly the same way except that it had decided to call the tribunals “special terrorism courts” rather than “military commissions.” There is no doubt that Congress has the constitutional authority to establish such courts and to prescribe the offenses to be tried therein. In fact, contrary to Kris’s doomsday prediction of courts “reversing hard-won convictions” in material-support cases, judges actually are required to presume that congressional statutes are valid, absent some clear constitutional infirmity. Far from infirm, the MCA is clearly constitutional. That, undoubtedly, is why Dawood’s lawyers advised him to plead guilty rather than seeking dismissal of the charges. Our lawmakers are not divested of their Article I authority just because they used the term “military commissions.” The name creates opportunity for mischief, true, but the DOJ is supposed to undo such confusion, not exacerbate it.
Why would the Obama administration want to exacerbate the confusion here? As I’ve argued before, its motive is transnationalism.
Nothing in the Constitution bars Congress, in the war it has authorized, from permitting tribunals it has created to try a crime it has prescribed against those who provide meaningful assistance to enemies it has identified. That is part of how a self-determining, democratic people defends itself. But when the Obama administration says Congress can’t do this, it is in effect saying there is a corpus of law, superior to our Constitution, that somehow prevents Congress from exercising its sovereign constitutional authority in our national defense. In other words, what we can and cannot do with terrorist enemies is to be decided not by us, under our own law, but by the transnational progressives who are pushing international law in a more terrorist-friendly direction. That is absurd and dangerous.
It is undeniably true that the executive branch has unreviewable prosecutorial discretion — it decides who, what, and where to charge. If the Obama administration would rather not try our enemies in military courts, where we are more likely to convict them without having to disclose all the intelligence that civilian discovery rules mandate, it has that power. The president must, however, bear the political cost of choosing to give our enemies a benefit that the law does not require. Similarly, Congress has the power to amend the MCA to strip material-support cases from military-court jurisdiction. But Democrats should be forced to defend that position — to explain to Americans why military courts should not be an option against those who abet al-Qaeda as it kills our troops and plots to kill the rest of us. Neither the administration nor the Democratic Congress should get away with their tired pretense that the “rule of law” compels such an outcome. It doesn’t.
Finally, let’s consider the beneficiary of all this largesse: Mohammad Dawood. In early 2000, he left Europe to join Lashkar e Tayyiba (LeT) — the Army of the Righteous — one of Pakistan’s most ruthless jihadist groups. Then age 25, the Australian convert to Islam already had several months of fighting in Kosovo under his belt. After a year of LeT training and operations against India in Kashmir, he was ready for the big time. In early 2001, armed with a letter from LeT leaders vouching for his commitment to the cause, Dawood joined al-Qaeda in Afghanistan, making his own the terror network’s imperative to kill Americans. He met personally with Osama bin Laden as well as other al-Qaeda chieftains. He received sophisticated training in explosives, assassination tactics, kidnapping, urban warfare, and methods for transmitting intelligence to other terrorists. He scouted the American and British embassies as potential terror targets. Visiting Pakistan when news of 9/11 broke, he raced back to Afghanistan and took up his AK-47 to fight the American and Coalition forces.
Dawood was captured in late 2001, and detained from then on at Gitmo. That meant he’d soon get the best legal help the transnational Left could muster. The Gitmo defense bar had sage advice for Dawood: Pretend you are not a Muslim terrorist: Go back to being David Hicks, Aussie ne’er do-well, the jihad’s Walter Mitty, who really wouldn’t hurt a fly — an innocent man who wandered into the wrong place at the wrong time, only to be cast into George W. Bush’s “legal black hole.”
The con game worked for a while. It was a hit in the faculty lounges, got a sympathetic airing in the international media, and spurred the usual indignation from “human rights activists” — lawyers like Jennifer Daskal, the “senior counterterrorism counsel” for Human Rights Watch. (Yes, counterterrorism.) But the charade did not last: In 2007, Dawood pleaded guilty before a congressionally authorized military commission to the charge of providing material support to al-Qaeda.
The left-wing lawyers in attendance were apoplectic. The plea, they told the New York Times, did not mean that “Hicks” was really guilty — just that “the system was rigged to show detainees that the only way out of Guantanamo was to give the prosecutors what they wanted.” Sure, Dawood admitted his exertions for al-Qaeda and conceded that he had been well treated by his American captors. But Jennifer Daskal wasn’t fooled. She assured the Times that the whole proceeding was a sham, a case of the Bush administration seeking “protection against the disclosure of abuse.”
Daskal got a new job this summer. She now works for the National Security Division in the Obama/Holder Justice Department. She has no prosecutorial experience, but she’s said to be a real expert in detainee issues.