Obama withdraws charges against Nashiri, for now

When President Obama demanded 120-day continuances of all military tribunals at Guantanamo Bay, he said he wanted time to review the best possible course of action while he planned Gitmo’s eventual closure.  The trial judge for the mastermind of the USS Cole bombing refused to grant the continuance, telling prosecutors that he couldn’t base decisions on trials based on how the law might change in the future, and practically daring the government to withdraw charges instead.  Obama did just that yesterday, while planning to meet with some of the victim’s families (via The Anchoress):

President Obama will meet today with victims of the Sept. 11 terrorist attacks and the USS Cole bombing and their families as his administration reviews how to handle detainees at Guantanamo Bay, Cuba.

The meeting comes as the judge overseeing military trials at Guantanamo ordered charges against Abd al-Rahim al-Nashiri withdrawn, overturning an earlier ruling that the case against the alleged organizer of the Cole bombing should go forward Monday as scheduled.

Pentagon spokesman Geoff Morrell said Judge Susan J. Crawford overruled the decision, bringing the case into compliance with an order Obama issued in his first week in office to suspend Guantanamo cases.

Unfortunately, this was all too predictable.  Obama had no intention of prosecuting the Gitmo detainees in the first few days of his administration.  The delay may have made it palatable for them to continue later, with a little spin, but Obama’s likely intent was to inure himself against criticism from the Right on the prosecutions by delaying and dragging out the Gitmo closing process.

This decision puts Nashiri into the very status to which Obama and the Left objected so strenuously: held without charge.  That was the status that Congress and the Bush administration worked hard to change twice in passing legislation that established the military tribunal system.  The last time, in 2007, Democrats joined Republicans in creating a system with more safeguards for defendants than our own military personnel get under the UCMJ, complete with access to the federal court system on appeal.

Andy McCarthy, who sharply criticized the judge in the Nashiri case for forcing Obama’s hand, says that Obama may not be done dropping charges, either, and welcomes back September 10th America:

On that score, it is noteworthy that, before the appointing authority acted this evening, Obama had scheduled a meeting for tomorrow afternoon with victims and families of victims not only of the Cole bombing but of of the 9/11 attacks.  At a minimum, he appeared poised to announce he was dropping the Cole charges against Nashiri.  All evening, however, it has been floated from several knowledgeable sources that the president was prepared to announce the dismissal of all the commission cases — i.e., not only against Nashiri but against Khalid Sheikh Mohammed and the other 9/11 plotters.  That suggestion is supported by the fact that the 9/11 families were invited to the White House meeting:  there would have been no need to invite them to discuss an announcement that impacted only the Cole case.

Dismissals, if they happened, would surely be couched as “without prejudice.”  That is, Obama would be able to tell the families — whether he meant it or not — that he could always re-file military commission charges if he ultimately decided that commissions, rather than civilian trials, were the best way to go. …

Such dismissals would get the administration out from under the four-month deadline its adjournment request would have imposed.  That is, the cases would be gone instead of suspended.  Nothing further would ever have to happen, and nothing further would happen, unless and until Obama decided what to do about all the detainees remaining at Guantanamo Bay.  Maybe his ultimate decision would be to transfer the war-crimes detainees for trial in civilian court, maybe it would be to ship them to some country willing to take them, or maybe it would be to continue detaining them without trial under some new legal system.  But you could bet the ranch that war crimes defendants would never again be charged in military commissions.  Obama’s antiwar base, which rejects the premise that we are at war, cannot abide such military prosecutions.

From Obama’s rhetoric and actions, it looks like Andy’s correct; we’re going back to the law-enforcement model, which failed so miserably to protect our country during the Clinton adminstration.  Andy knows this from personal experience, as he prosecuted the Blind Sheikh, Omar Abdel Rahman, and his terrorist network for the first World Trade Center bombing.  For almost a decade afterwards, we pursued terrorists as though they were burglars, unwilling to grab them before they killed Americans, and obsessing over their legal status.

Will Obama drop charges against Khalid Sheikh Mohammed and the 9/11 plotters, too?  What makes them different from Nashiri and the others whose plots ended in American deaths?

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