September 10 is Back

ARTICLE FROM NATIONAL REVIEW ONLINE:

Military Drops Cole Bombing Charges ... For Now and Possibly Forever   [Andy McCarthy]

Distressingly, there is more going on here than meets the eye.  Suffice it to say that the Defense Department's "appointing authority," which oversees all military commissions, has dismissed the charges against Abd al-Rahim al-Nashiri, the U.S.S. Cole bombing mastermind whose commission case I wrote about on Tuesday. 

I hate to say "I told you so," but I predicted this in Tuesday's article as one of the likely outcomes after the military judge in Nashiri's case, U.S. Army Col. James Pohl, foolishly rebuffed President Obama's reasonable request for a four-month adjournment while the new administration ponders whether military commission trials or some other option (like trials in the civilian justice) are the best way of dealing with terrorist war crimes.

This is worth recounting because there is another outcome that could very well be occasioned by Judge Pohl's folly.  As I also discussed Tuesday, it is entirely possible that

Obama will discover in Pohl’s grandstanding evidence for his own belief that terrorism cases belong in the civilian justice system, where they were before 9/11. That would be a lamentable outcome. The military commissions have not performed well, but the paradigm of detentions and prosecutions under the laws of war—whether administered by the military or by a new hybrid system with civilian judicial oversight—is essential to our security. 

If we go back to a September 10 way of doing things, under which only those who can be convicted under daunting civilian court standards may be detained, we will get September 11 results.

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.

The appointing authority's action tonight removes the pressure on Obama to do anything tomorrow.  (In truth, there was really no pressure on Obama to act tomorrow.  It just happens that tomorrow is Friday, the day when administrations traditionally announce news they'd prefer to see buried — even when the country is not already distracted by a catastrophic trillion dollar "stimulus" bill.)  Nevertheless, I would not be surprised to see the new administration go ahead and shut down all the commissions tomorrow.  It could then blame Col. Pohl for an action that involved far more than the case before Col. Pohl — which action it was going to take anyway. 

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. 

September 10 America is back.