If Guantanamo Bay is closed, scores of trained jihadists, committed to killing Americans, will be released to dwell among us: It is that simple.
Pres. Barack Obama and Attorney General Eric Holder contend that America’s civilian federal prisons are secure. Our “supermaxes,” they insist, are up to the task of confining the most lethal terrorists. Even if that were true (and history shows it is not), the argument is the most hollow of strawmen. These terrorists are not going to escape — they are going to walk right out the prison gates. They are going to be freed by a perverse new legal system, an ad hoc creation of progressive federal judges, assisted mightily by an Obama Justice Department rife with lawyers whose former firms and institutions spent the last eight years representing America’s enemies.
The civilian criminal-justice system is neither designed for nor capable of handling wartime detention cases. The basic presumptions of the civilian system — innocence, privacy, the preference that the prosecution lose any case in which there is the slightest doubt about guilt — have no bearing on the detention of enemy operatives in wartime. Yet, international terrorists present challenges that traditional enemy combatants do not: They do not wear uniforms, they do not carry their weapons openly, they conduct their operations in secret, and they blend into the general population, intentionally creating ambiguity about whether they are combatants or civilians.
This ambiguity is a military issue, not a legal one. In our system, the conduct of war is a political exercise in which the judiciary has no proper role. Under separation-of-powers principles, a judge has no more business telling a field commander who the enemy is than a general has telling a judge how to rule on the validity of a contract. Unfortunately, our system has become over-lawyered, and our leaders lack the political will to tell judges to butt out — something Congress and the president have the power to do.
Recognizing that reality, a few of us have argued for years that Congress should create a national-security court. Such a tribunal would proceed under the laws of war, meaning that an individual could be detained if, in the rational judgment of the military, he was deemed an enemy operative. The procedures used would essentially mirror military justice, not the civilian system, with a significant caveat: To ensure the integrity of the rulings, and to entice cooperation from allies resistant to traditional military tribunals (which are unilateral executive-branch productions), independent federal judges would preside over detention cases. To guard against the propensity of judges to inflate the due-process rights of prisoners and defendants, Congress would enact four precautions: (a) the judges would have no authority to invent new procedural rights (i.e., detainees would have only whatever rights Congress gave them); (b) the government would have a right of immediate appeal if a judge tried to flout the rules; (c) the government would enjoy a strong presumption in favor of wartime detention (i.e., a detainee’s status as an enemy combatant could not be invalidated absent convincing evidence that the military had been irrational in so designating him); and (d) the government would have the right to appeal any decision voiding detention.
Many arguments supported the creation of a national-security court, but the best one was the inevitable consequence of a failure to act. Beginning in 2004, the Supreme Court’s liberal bloc signaled its determination to invite the federal courts into national-defense matters. If we lacked the will to tell the courts they had overstepped their constitutional limits, and lacked the foresight to create a tribunal that would circumscribe this meddling, then the judges would simply create their own system. Because judges are products of the American legal culture (as a class, they lean left, often radically), and because they have no political responsibility for national security (they don’t answer to the voters), a judicially crafted system was guaranteed to be terrorist-friendly.
Even these dire predictions failed to factor in the Obama administration’s radicalism. In the current Justice Department, several top officials, including the attorney general himself, are recused from various national-security cases under conflict-of-interest guidelines. The reason? They, or their former firms, represented enemy combatants in lawsuits against the American people. Indeed, such is the mindset of the Obama DOJ that, to help formulate detention policy, Holder recruited Jennifer Daskal — a Human Rights Watch official with no prosecutorial experience — who had been a tireless advocate for terrorists held by the United States.
#pageCongress failed to create a national-security court, and in 2007 both houses were taken over by Democrats philosophically aligned with the lawyers who would later fill the Obama Justice Department. The results are clear: We are now operating under a shadow detention-review system created by judges. In it, enemy combatants are not merely presumed innocent; the terrorists get advantages that American citizens do not get in the regular justice system.
To see that this is so, one need look no further than the case of Kuwaiti detainee Khaled al Mutairi, methodically dissected by the Foundation for the Defense of Democracies’ Tom Joscelyn in an important post at the Weekly Standard’s blog.
The intelligence and evidence supporting the military’s designation of Mutairi as an enemy combatant were not merely solid, they were overwhelming. The Kuwaiti intelligence service identified him as a “hardcore extremist” affiliated with al-Qaeda before he left for Afghanistan shortly after the September 11 attacks; to get to Afghanistan, he used a known al-Qaeda smuggling route; he contributed money to an al-Qaeda front designated as a terrorist entity by both the United States and the U.N.; after the U.S. invasion, he fled towards Tora Bora at the same time and using the same route as al-Qaeda and Taliban fighters; when al-Qaeda safehouses were raided after his apprehension, his name was found on a roster of “captured Mujahideen” (a mujahid is one who fights in a jihad); and his passport was deposited in a safe-deposit box consistent with the al-Qaeda practice of having operatives turn in their passports (which gives the network more control over them, makes identification difficult if they are captured, and provides al-Qaeda opportunities to forge fraudulent identification documents). In the face of these damning facts, the military’s determination that Mutairi is an enemy combatant was invalidated. A federal district judge in Washington, Colleen Kollar-Kotelly, absurdly held that the evidence was insufficient.
We should by now be familiar with Judge Kollar-Kotelly. She is the Clinton appointee who became chief judge of the Foreign Intelligence Surveillance Court (the FISA court) in 2002. She is one of the judges who tried to rebuild the infamous “wall” between criminal investigators and intelligence agents — the disastrous impediment that Congress razed in the 2001 PATRIOT Act because it had contributed so significantly to the failure to detect the 9/11 plot. Though that lawless rebuilding effort was overruled by the FISA Court of Review in 2002, Kollar-Kotelly was reportedly among the sharpest critics of the Bush administration’s warrantless-surveillance program targeting international terrorist communications. And in 2005, in the absence of any authority in the habeas corpus statute, she ruled that enemy combatants were entitled to counsel, at taxpayers’ expense, to challenge their detention. In sum, she has a record of elevating concerns about due process for America’s enemies over the security of Americans.
Even by Kollar-Kotelly’s standards, however, the Mutairi ruling is breathtaking. She treated wartime detention of the enemy as if it were a bells-’n’-whistles criminal trial in which the government has the burden of proving a crime beyond a reasonable doubt. She offered no deference to — much less a presumption in favor of — the conclusion of our professional war-fighters about who the enemy is. She gave every bounce of the ball to Mutairi, reasoning that he, not our military, was entitled to the benefit of any doubt.
But it’s even worse than that. If Mutairi’s detention proceeding had been a regular trial rather than a habeas corpus hearing, the terrorist would have been convicted of being part of the al-Qaeda conspiracy. That is because trials in the regular criminal-justice system take place under rules fashioned by Congress — the judges don’t get to make it up as they go along. For one thing, they are jury trials. Under our law, the jury determines the facts of a case and the credibility of witnesses. Judges may not interfere. Thus jurors, ordinary Americans drawn from the community, are a key safeguard against the defendant-friendly proclivities of jurists such as Kollar-Kotelly.
Criminal trials also proceed in accordance with a pair of centuries-old legal principles. First, pieces of evidence are viewed not in isolation but in conjunction; second, jurors do not check their common sense at the door when they enter the courtroom. This is why the vast majority of defendants who go to trial get convicted. Even a not-so-clever defense lawyer can always come up with a reason to degrade this or that aspect of the prosecution’s case: Maybe the teller didn’t get a good look at the bank robber; the defendant’s fingerprint could have been left in the getaway car weeks before the robbery; the robbery money might be in his house because he unknowingly borrowed it from the real robber; and the accomplice may have falsely fingered him in hopes of saving his own skin. But if the prosecution shows an identification by the teller, a fingerprint in the getaway car, possession of the robbery proceeds, and a co-conspirator saying the defendant was in on it, that’s not a shaky case. Taken together, those facts spell slam dunk to a rational, objective fact-finder.
But Gitmo terrorists don’t have to deal with jurors vetted to ensure their objectivity. They get highly opinionated judges. Those judges first make up the rules, procedures, and presumptions, and then purport to apply this “law” to the facts — in many cases, just as a defense lawyer would do. As Joscelyn demonstrates, Kollar-Kotelly simply ignored some of the facts (like the Kuwaiti intelligence that Mutairi was an al-Qaeda operative) and speciously minimized or explained away others, studiously averting her gaze from the mosaic composed by the proof.
Naturally, the Obama Justice Department went along for the ride. No appeal was pursued, nor would one have expected otherwise. The way Kollar-Kotelly warped the case is precisely the kind of “justice” top Obama lawyers were pushing for over the last eight years. Now they’re in charge, and they readily cited Kollar-Kotelly’s ruling as justification for transferring Mutairi back to Kuwait, where he’ll be free to rejoin the jihad and take up arms against the United States — like so many other former detainees who’ve been released in the mad dash to empty Gitmo.
Here’s the thing: Because we still have Gitmo, at least Mutairi was outside the United States. When the judge voided his combatant status and the Justice Department declined to challenge the ruling, Kollar-Kotelly was in no position to force Mutairi’s release inside our country. He either had to go home to Kuwait or bide his time, like the Uighur detainees, until a country willing to take him was found.
Rest assured that this will not happen if the detainees are transferred to U.S. prisons, so that Gitmo can be shuttered. Once they are here, we will have the perfect storm: Federal judges, inherently hostile to detention without trial, running amok with no guidance from Congress, no political accountability, and no jury to check their excesses; combatant-designations judicially voided for scores of trained jihadists no trustworthy country is willing to take in; and a combatant-friendly Justice Department unwilling to challenge the judicial usurpation of the military’s war-fighting powers. Inexorably, the judges will order that the detainees be released in the United States. One judge already tried to do that with the Uighurs, even though they were outside the United States and had no legal right to enter.
For the judges, the hard part was wresting from the executive branch the power to decide who is an enemy combatant. With that accomplished, ordering their release will be easy. And once the Obama administration brings the combatants into the United States, it will be done — bank on it.