News and Views 1/05/10: 9/11 trials, Moussaoui, Gitmo, Thomson prison, NWA Fight 253, Yemen

Moussaoui Conviction Upheld; In the next case … the defendants will be smart enough not to plead guilty

The Fourth Circuit also reminds us that the trial judge initially struck the death penalty from the case because the government refused to give Moussaoui access to the al Qaeda prisoner witnesses. The Fourth Circuit reversed the judge at the time, but on the condition that it would be open to revisiting that conclusion if the government failed to provide Moussaoui with all the classified exculpatory information to which he was entitled. At that critical moment, Moussaoui decided to plead guilty. That is, we never found out what would have happened if Moussaoui had insisted on a trial at which he’d have access to all these witnesses and other national-defense information. The guilty-plea is deemed to have waived any claim by Moussaoui that he was denied the information to which he was entitled.

In the next case — like, say, KSM’s civilian trial — the defendants will be smart enough not to plead guilty. — They will insist on getting every piece of intelligence they’re entitled to. And the prosecutors will look at this ruling on Moussaoui’s appeal and realize they’d better give it to them or risk having the case thrown out. That’s what the law-enforcement approach buys you.

Thomson media alert for Wednesday

Editor — Watch Fox & Friends at 6:15 am Eastern time, Wednesday, January 6 for a segment on Thomson prison becoming Gitmo North. If you miss it, both Fox News and will have the video up soon afterward.

Taking Chances on Yemen

Given the ostensible ties between former Gitmo detainees and previous attacks and plots against the embassies in Yemen, it is natural to ask: What role are former Gitmo detainees playing in the current threats?

Moreover, both of these examples highlight the mistakes made during the Bush administration with respect to detainee transfers. Let us remember that the Bush administration itself wanted to close Gitmo and in an effort to do so agreed to a large number of suspect transfer decisions.

Yet, the Obama administration is apparently determined to make more suspect transfer decisions. Just this morning, John Brennan, the assistant to the president for homeland security and counter-terrorism, told CNN that the Obama administration is still committed to transferring Yemeni detainees to the cesspool that is Yemen. In December, for example, the Obama administration transferred Ayman Batarfi from Gitmo to Yemen. Batarfi is a known al Qaeda doctor who attended to wounded jihadists during the battle of Tora Bora, met with bin Laden at Tora Bora, and has admitted ties to al Qaeda’s anthrax program. Despite all of this and more, Batarfi, who has been a committed jihadist for decades, was deemed one of the most transfer-worthy detainees by the Obama administration.

Obama owes New York: Feds must pay every security penny for foolish terror trial

Obama and Holder have said they are out to show that the U.S. can grant full legal rights to worst-of-the-worst terrorists in civilian courts without jeopardizing the war on terror or public safety. Can they really do that? No way. No how.

The Police Department’s $200 million-a-year plan represents nothing so much as an effort to buy down an extremely high risk with heroic measures. But no amount of money will purchase freedom from all threat when danger is so substantial.

Stunningly, Holder did not consult, or forewarn, Police Commissioner Ray Kelly before ordering that Mohammed should be shipped to lower Manhattan. Since no formal action has yet been taken, Obama still has the chance to countermand the order. Failing such a step, the President must pay the full freight.

A new (or old?) halt to Gitmo-Yemen transfers (What halt?)

It’s also curious that the fact that no more detainees would be sent to Yemen was being touted to reporters as a finding or result of the post-Christmas bombing intelligence review, if indeed such repatriations were halted “quietly several weeks ago.”

On the other hand, in the pre-Christmas bombing environment, being candid about a decision not to send more prisoners to Yemen, would have 1) been offensive to the Yemeni government and 2) underscored the instability of the country to which we just sent six former Gitmo prisoners. So the earlier reticence was understandable even if the spin seems a bit whiplash inducing in retrospect.

UPDATE: On Sunday’s television talk shows, White House counterterrorism and homeland security adviser John Brennan said there will be future releases to Yemen, and he denied that the process had been halted, but he did not mention any plans to move any inmates there in the immediate future.

The career path from Gitmo to Yemen gets bigger

How effective has the Yemeni rehab program for Gitmo detainees been? The Times of London reports that it has done almost no good at all. At least a dozen repatriated Yemenis have rejoined al-Qaeda while the Obama administration plans to release almost a hundred more in the country … Keep in mind that these numbers reflect those released early from Gitmo. Those detainees were considered to be a lower risk than those remaining in the center. If the recidivism among the lower-risk detainees has been this bad, it means that either the ones we release now will be so hard-core that we can expect most or all of them to return to AQ or our screening process for release in the Bush administration was decidedly poor — or both.

Attorney General Eric Holder at War (but on whose side?)

Ready or not, trained terrorists are coming to America on your and my dime, courtesy of Attorney General Eric Holder. How else can he smooth the political way for President Barack Obama to convince other nations to take the rest of al Qaeda’s killers off America’s image-stained hands? To be fair, Obama will only import 17 Uighurs, who are associated only with the East Turkistan Islamic Movement (ETIM), who only went to Afghanistan to join the violent jihad, and who only fought alongside the Taliban and al Qaeda or were only training in ETIM terrorist camps when we invaded. (News reports last week said Obama may also import one, two, or three other terrorists who are not Uighurs.) Fair being fair, Obama will spread them around to sponsors in northern Virginia, California, Florida, and a half-dozen other states.

What harm could maybe a mere 19 or so trained terrorists running around loose in America possibly do?

The National Review’s Andrew C. McCarthy writes this morning:

One jihadist held in U.S. to get federal trial: al-Marri will not ‘save the day by pleading guilty’

The New York Times reports:

The Justice Department, in an abrupt change in policy from the Bush administration, is preparing to bring terrorism-related charges against a man identified as an operative of Al Qaeda who has been held in a military brig for more than five years, government officials said Thursday. The charges would move the case of the only enemy combatant to be held on American soil, Ali Saleh Kahlah al-Marri, into a civilian criminal court. The Bush administration had argued that he could be held indefinitely without being charged.

Within their reporting, the Times made its own position quite clear:

Jonathan Hafetz of the American Civil Liberties Union, the lead lawyer in the case, said bringing charges would “definitely be a positive step in that the government will no longer be detaining Mr. Marri without charge and returning him to the civilian justice system.” But Mr. Hafetz said the criminal charges should have been filed seven years ago, when Mr. Marri was first arrested in Peoria on suspicion of ties to Al Qaeda. He said the Supreme Court should reject any government argument that the case is moot because the issue of whether the government may indefinitely detain legal residents or those in Guantánamo remains alive. The case should go forward, Mr. Hafetz said, “to make clear, once and for all, that the indefinite military detention of legal residents or American citizens is illegal, and to prevent this from ever happening again.”

I’ll assume from those quotes that Mr. Hafetz believes the enemy should be afforded full due process under our Constitution and our national security must take a back seat to al Qaeda’s killers “right” to speedy adjudications.

Andrew McCarthy of the National Review Online explains some of the difficulties the Obama administration faces as it tries to balance protecting both the United States and al-Marri at trial in federal court:

Once the executive branch files charges, it loses control over discovery. There are rules in place, of course, but they are very elastic and they will be construed by a judge. The judge’s responsibility is not national security but to provide due process for the accused. We are still at war, al Qaeda is still trying to attack us, and it goes to school on the trove of information that comes out of civilian trials — both information in our files that must be disclosed and information that comes out in the courtroom during the public hearings and trial proceedings. The Justice Department’s best lawyers (who are very good) can try to draft narrow charges to minimize the potential damage, but — as Moussaoui’s case showed — they can’t control the judge (who, in Moussaoui’s case, authorized extensive discovery of intelligence gleaned from detained terrorists, at one point dismissed the indictment because she thought the government wasn’t disclosing enough, and even delved into interrogation tactics despite the fact that those tactics had no relevance to Moussaoui). It does not appear that al-Marri is a Moussaoui-like loose cannon — he is not going to save the day by pleading guilty.

I refer to people like Jonathan Hafetz as al Qaeda’s lawyers. Frankly, I believe they share the same ultimately goal of dictating to the American people how much freedom they will be allowed. No worries though; al Qaeda surely plans on murdering their lawyers last.