USS Cole bomber Abd al-Rahim al-Nashiri was supposed to be tried in a military commission, despite President Obama’s past opposition to such commissions. The administration, however, is now stopping that prosecution of al-Nashiri, but explanations are all over the map. A cited military official thinks the move is about politics, while a White House official defends the military commissions and the Department of Defense suggests that the investigation is ongoing.
The al-Nashiri case is very politically charged, so it’d be difficult to convince anyone that politics aren’t a factor. President Obama had criticized military commissions before taking office, and then allowed them with some cosmetic changes. When it was announced that KSM would be tried in civilian court, the plan was to hold military commissions for the USS Cole bombers. There was never much of a detailed explanation for the difference in approaches.
The left surely wasn’t satisfied with the use of military commissions, despite some modifications. Most of the country opposed a civilian trial for KSM. What were President Obama and AG Holder to do, and are they still holding out for civilian trials? Andy McCarthy takes a guess:
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[.]
So the administration might be willing to use a military commission for practical reasons, but if a civilian trial could hold up, the administration may change its mind. It’s possible that, and wouldn’t be surprising if Obama and Holder are planning to use civilian trials, as they originally intended for KSM, but are simply waiting until after the election to announce the decisions.
We’ve noted for a while now that these prosecutions can be complicated, so there may be good reason to believe that the administration is carefully considering its options for practical purposes. The way that this administration has jumped the gun and has changed its mind on these decisions as the politics demanded, however, suggests that it is once again playing politics to avoid telling us its true intentions. And as McCarthy notes, the administration might want to use a civilian trial for one of the embassy bombers as a way to put the 9/11 and Cole attackers into a civilian court as well.
On another terror trial note, here is the latest on the court challenge of the authority of federal judges to determine the outcomes of Gitmo detainees.
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