Only under Holder

Chalk up yet one more legal fiasco to Attorney General Eric Holder. Apart from failing to enforce Obamacare, immigration, and the drug laws, the administration continues to endanger national security with its catch-and-release approach to terrorists. In a preview of the consequences of its plans to close Guantanamo Bay, the Obama Justice department (DOJ) is starting to apprehend terrorists abroad and free them at home.

The story begins with the 2011 arrest of Ali Mohamed Ali, who took part in the pirate attack on a Danish vessel, the CEC Future, off the northern coast of Somalia three years earlier. Ali acted as a translator for the pirates and communicated their demands to the vessel’s owner, Clipper Group. After two months of holding the ship and its crew of 13 captive, the pirates eventually released them in exchange for a ransom of $1.7 million. The ransom payment was dropped onto the vessel by helicopter. As part of its efforts to suppress piracy, including the stationing of a naval task force off East Africa, the United States eventually captured Ali.

For centuries, international law has considered pirates to be the ultimate war criminals and “enemies of all mankind.” As a crime of “universal jurisdiction,” piracy can be punished by any nation. But there is no requirement that it be tried in the civilian courts. Piracy is inherently a warlike enterprise, and in its present form off the Somali coast it has reached higher levels of violence than some wars do. In 2008, the year in which the CEC Future was taken captive, pirates seized 49 ships and held nearly 900 crew members for ransom worldwide. Somali pirates were responsible for 111 attacks that year. Although the incidence of Somali piracy has dropped since peaking in 2011, it is still a serious menace.  

But this administration, trapped by the ideology of its anti-war base, had no idea what to do with Ali. The Obama administration refuses to send any new detainees to Guantanamo Bay, Cuba, because it cannot bring itself to admit agreement with Bush-era anti-terrorism policies. Instead, it prefers to kill terrorist leaders (and nearby civilians) with drone strikes rather than capturing them to gain intelligence. As a result, the Obama administration has failed to capture a single high-ranking terrorist leader in five years, and the most valuable pool of information — human intelligence — is drying up.

Out of options, Holder began the sad comedy of errors by bringing Ali back to the United States. Consistent with Holder’s preferred policy of trying suspected terrorists in ordinary civil courts inside the United States, rather than before military commissions, federal prosecutors put Ali on trial in a federal district court in Washington, D.C. The most important charge against him was piracy, which on conviction carries a mandatory life sentence. Lesser charges included hostage taking.

Prosecutors compounded Holder’s basic mistake by failing last November to persuade the jury to convict Ali. Obama’s DOJ then brought its bungling to new heights by deciding to drop the remaining charges against Ali. Having gotten a read on the men across the table, Ali has called the administration and now raised it — by applying for permanent asylum in the United States. The chances are excellent that Ali will remain inside the United States for a prolonged stay or even the rest of his life.

This is not the first time that Holder’s DOJ has sought to try such cases in ordinary civil courts inside the country, rather than at Guantanamo Bay, where military commissions for trying terrorists are available. Earlier in the Obama administration, Holder sought a civil criminal trial for Khalid Sheik Mohammed and other suspects involved in the 9/11 attacks on New York and Washington. But Holder had no answer to questions about what would happen if a jury failed to convict these al-Qaeda suspects. He said merely, “I would not have authorized the prosecution of these cases unless I was confident that our outcome would be a successful one.”

In other words, Holder acknowledged that he had no Plan B. But despite Holder’s presumptuousness, federal prosecutors cannot control jury deliberations or predict their outcomes with certainty. Once a case has gone to the jury, it is for the jurors alone to decide whether to find that the accused has been proven guilty or not.

The public blowback against trying terrorists inside the United States was intense and bipartisan, and the White House retreated from Holder’s plan under fire. But this administration is not one to admit to or learn from its mistakes. In the Ali case, Holder and his subordinates took the risk that they might not succeed in convincing a jury that Ali was himself a pirate because he had provided translation services to a pirate gang. Their gamble backfired when the jury reported its verdict.

What happened makes plain the original wisdom behind military commissions. From the Revolution to World War II, American commanders convened these special military courts to try the enemy for war crimes. George Washington, Andrew Jackson, Abraham Lincoln, and Franklin Roosevelt ordered the use of commissions as part of their responsibility to punish enemy transgressions and to encourage compliance with the rules of civilized warfare. They combine speedy proceedings unencumbered by the years of delay in the peacetime justice system with judges and juries drawn from the officer corps who are specialists in the laws of war. In a WWII decision, Ex Parte Quirin, the Supreme Court unanimously upheld FDR’s choice of military commission to try German spies captured on a sabotage mission within the United States, even though at least one of the defendants may have been born in the country.

But committed to its base’s dislike of Bush anti-terrorism policies, the Obama administration has forsworn the detention of terrorists at Guantanamo Bay and trial by military tribunals. Instead, Holder may have assumed that even if Ali were not convicted, he could be deported from the country as an illegal alien. But our immigration laws permit aliens inside the United States to apply for asylum — even if they have been brought into the country to stand trial. Ali has taken advantage of that opportunity. In all likelihood, his asylum application will take months, if not years, to process. And in the end, he may even prevail. Other terrorists will take note: Even if their plots in the U.S. fail, they can always try their luck with a jury trial and then file for citizenship.

There is no need for our government to create a public danger of this kind. We should not have to worry about the presence of suspected pirates or terrorists in our midst. The correct course in a case like this would have been to try Ali outside the United States, before a military commission. But the broader problem still remains: President Obama is intent on returning terrorism to our domestic law enforcement and civilian courts for resolution because he believes that — all information to the contrary — the tide of war is receding. Grappling with the metamorphosis of the terrorist into a less intense, more decentralized enemy, however, is no excuse to bring terrorists back home for release.

— Robert Delahunty is professor of law at St. Thomas School of Law. John Yoo is Heller Professor of Law at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. They both served in the Justice Department during the George W. Bush administration.