Andy McCarthy writes a lengthy and informative column today reminding us of the reasons we have the terrorist detention center located in Guantanamo Bay — and why the Bush administration didn’t decide to build it in Thomson, Illinois. Had Mohamedou Slahi been held in a federal prison inside the US, an order by a federal court this month to release him for alleged misconduct during his detention would have resulted in Slahi walking the streets of America. As it is, the Obama administration still has the option of holding him outside the court’s jurisdiction, McCarthy argues:
Mohamedou Slahi is responsible for the murder of thousands of Americans. He was a core member of the 9/11 conspiracy — the recruiter of Mohamed Atta and the other ringleaders. If he’d had his druthers, even more Americans would have been killed: He is almost certainly the al-Qaeda middle manager who activated the Canadian cell that attempted to bomb Los Angeles International Airport. On the scale of war criminals, he edges toward the Khalid Sheikh Mohammed range, as bad as it gets.
A federal judge has ordered that he be released. …
Bear this in mind: Because Slahi is still at Guantanamo Bay, Judge Robertson only has the authority to review his status as an enemy combatant. That means the judge could do nothing more than order Slahi’s release; if the Justice Department does not successfully appeal the decision, we will find another country to take Slahi. But if Gitmo had been closed, as the Obama administration and Sen. Lindsey Graham want, Slahi would have been physically inside the United States. Judge Robertson then would have claimed that his physical presence in our country entitled Slahi to all of the Constitution’s protections (not just habeas corpus). He would have ordered that Slahi be released in the United States if no suitable alternative could be found.
Who is still at Gitmo? The worst of the terrorists, including scores who are known to be dangerous but cannot be tried because, as in Slahi’s case, there is not sufficient admissible evidence to convict them of war crimes: There is only intelligence and coerced admissions — useful information but inadmissible in a trial court, civilian or military.
Scores of detainees fall into the detention category to which judges are most hostile: indefinite imprisonment without trial. If that imprisonment is happening here rather than in Cuba, judges will be free to order the terrorists released here.
And if they’d release Mohamedou Slahi, who wouldn’t they release?
Indeed. Slahi’s role in the 9/11 plot has been well known for years, even before Mauritania arrested him in November 2001, transferring him first to Jordan and eventually to the US in 2002. McCarthy reviews the facts of the case, but Allahpundit goes into more detail, relying on the always-invaluable Thomas Joscelyn for background on the Slahi case.
In this column, McCarthy explains why judicial intervention in war cases is not just unprecedented but wrong-headed. It’s not that the judges are bad people who want to see bad things happen to the US; far from it. But their role in this system is designed to protect accused Americans in criminal cases, not to conduct national security on behalf of the nation, and that tilt produces bad results. The framers of the Constitution understood this, which is why they gave Congress the role of declaring war, the executive branch the role of conducting it, and the judiciary no role at all.
I’ll be talking with Andy on The Ed Morrissey Show today, starting at 3 pm ET, about this and a few other topics as well. Don’t miss it.
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