It’s a sleepy Friday in late August, the president is on another vacation, Congress is out of town, no one is paying much attention. What better time for the Obama administration to pull the plug, once again, on military commissions? This time, it has halted the case of top al-Qaeda operative Abd al-Rahim al-Nashiri, who was to be prosecuted by a military court for the Cole bombing. The Washington Post report is here, and Jen Rubin has thoughts at Contentions.
None of this is terribly surprising. Prosecuting the Cole case by military commission sticks in the Left’s craw because it shows the incoherence of the Obama/Holder position. They want to treat the war like a crime and endow our enemies with all the rights and advantages of civilian courts; yet, they went military in the Cole case, despite the fact that there is a pending Justice Department civilian indictment addressing that attack. There can be only one explanation for that: they are afraid the case against Nashiri is weak and might not hold up under (slightly) more exacting civilian court due process. That is, the Obama/Holder position is not principled — for all their “rule of law” malarkey, they are willing to go where they have the best chance to win. But there were no military commissions when the Cole was bombed, so what is the basis for trying it militarily? Answer: the 9/11 attacks and the ensuing war . . . except the Left doesn’t accept that it’s a war and the administration wants to prosecute the 9/11 plotters in civilian court. None of it makes any sense.
I have been saying for a while now: Keep your eye on the civilian prosecution against Ahmed Ghailani, one of the embassy bombers. That case is now pending in Manhattan federal court before Judge Lewis Kaplan, who has made significant rulings in favor of the government — declining to throw the case out on the grounds of “torture” and delay. As I said back in May:
It is . . . worth noting that Ghailani is not charged just with blowing up the embassies. The indictment against him alleges the overarching al-Qaeda conspiracy to murder Americans — going back to 1991. The same indictment, with a few tweaks to add the terrorist rampages that occurred after the embassy bombings, could easily be used to charge the 9/11 plotters, as well as other enemy combatants.
Despite all the outrage it stirred, Attorney General Holder has not abandoned his push for a civilian trial of [Khalid Sheikh Mohammed and the other 9/11 plotters] in New York. Don’t be surprised if the Justice Department uses the Ghailani ruling to argue that the naysayers’ concerns about giving KSM a soapbox are overblown. Don’t be surprised if Justice tries to slide the 9/11 attacks right into the embassy-bombing indictment. That would land KSM squarely before Judge Kaplan.
What I said about the 9/11 plotters can also be said about Nashiri: the pending embassy bombing indictment could easily be adjusted to add the Cole attack. If I were Attorney General Holder and President Obama, and I were hell-bent on giving the top al-Qaeda terrorists civilian trials, I would supersede the embassy bombing indictment to add the terrorists involved in both the 9/11 and Cole attacks to the case before Judge Kaplan . But . . . I would delay announcing that I was doing this until after the November elections because of the uproar it would cause and the hot seat on which it would put Democrats already beleaguered in their reelection bids.
But that’s just me. I’m sure the administration wouldn’t think of doing something like that, right?