This is one of the three guys waterboarded (among other things) by the CIA, which made me think when I saw the headline that the feds had decided the evidence is simply too tainted and they’ll have to hold him indefinitely without trial going forward. Not so. Prosecutors believe they have enough to convict him in a tribunal even without the tortured testimony, thanks in part to the lack of any rule barring hearsay testimony from FBI agents who interviewed Nashiri’s alleged accomplices.
So why not prosecute him? If you believe WaPo, politics:
Military officials said a team of prosecutors in the Nashiri case has been ready go to trial for some time. And several months ago, military officials seemed confident that Nashiri would be arraigned this summer.
“It’s politics at this point,” said one military official who spoke on the condition of anonymity to discuss policy. He said he thinks the administration does not want to proceed against a high-value detainee without some prospect of civilian trials for other major figures at Guantanamo Bay.
A White House official disputed that.
“We are confident that the reformed military commissions are a lawful, fair and effective prosecutorial forum and that the Department of Defense will handle the referrals in an appropriate manner consistent with the interests of justice,” said the official, who also spoke on the condition of anonymity.
The Defense Department issued a statement Thursday saying the case is not stalled. “Prosecutors in the Office of Military Commissions are actively investigating the case against Mr. al-Nashiri and are developing charges against him,” the statement said.
In other words, unless and until they’ve got cases against detainees going on in civilian courts to please the left, they’re afraid their base will be grouchy about seeing a poster boy for CIA abuse on trial in the military gulag or whatever. Or that’s the theory; there’s actually little hard evidence here that the prosecution has been “shelved” rather than that it’s still developing. All WaPo has is a line in a court filing saying that they don’t expect to prosecute Nashiri in the near future plus unnamed officials saying that the team has been ready to go to trial for awhile. Could be that the DOD is blowing smoke when it says it’s “actively investigating” the case, but with the U.S.’s “shadow war” against Al Qaeda expanding all over the globe, it’s not unthinkable to me that they might have gotten hold of a Nashiri accomplice somewhere and are weighing whether to make him testify. (The site of Nashiri’s biggest terrorist hit happens to be the new number-one focus of U.S. counterterror officials as well as a place where we’ve had special forces operating for months.) Having a real live witness would help them out a lot with the civil liberties groups who are worried about hearsay.
If, however, the unnamed official quoted is right about the administration’s motives, it confirms what we’ve assumed all along about The One’s tribunal/civilian court protocol: Ain’t nothing but politics. For all his grandiose talk of due process, prosecuting the detainees has always been a game in which he balances the likelihood of conviction with the likelihood of civil-liberties political pageantry. If he can get a guilty verdict in a federal district court so that he can crow about the Constitution, he’ll do that; if he can’t, as is likely in the case of Nashiri, he’ll simply dump the guy in a tribunal so that at least he can crow about the conviction. See? He really is a pragmatist. And speaking of grandiose talk, go read Slublog’s recap of statements Obama made during the campaign — and directly to families of the Cole victims — about not dragging our feet in prosecutions. Just words?
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