“If Guantanamo Bay is closed, scores of trained jihadists, committed to killing Americans, will be released to dwell among us: It is that simple.” — Andrew C. McCarthy, National Review Online, October 23, 2009

McCarthy was not fear mongering; if President Barack Obama brings Guantanamo detainees into the United States, federal judges will order trained terrorists released free onto America’s streets. McCarthy explains:

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.

Will we literally risk life and limb by leaving it to unelected, lifelong federal judges to decide — without Constitutional authority in matters of war and contrary to the Real ID Act — whether to set terrorists free on our streets?

Our Constitution says it is the Executive alone, the President who conducts war, national security, and foreign policy with Congress regulating the President’s authority through the power of the purse and ratification of treaties. It also says Congress can limit the Judiciary branch; it could deny the courts any authority concerning detainees. Yet that would require both a majority in Congress and this President to care more about the lives of Americans than the “rights” of terrorists. Barring that, judges will decide, common sense and the common defense be damned.