July 9, 2010 | National Review Online
Three Cheers for Politics
A guilty plea by one of Osama bin Laden’s most trusted minions demonstrates yet again that political accountability can spur even a Democrat-controlled Congress to correct the Obama administration’s wayward national-security instincts.
Ibrahim Mahmoud al-Qosi, a 50-year-old jihadist who helped move al-Qaeda’s operations from his native Sudan to Afghanistan, served for years as bin Laden’s bodyguard, driver, and cook. On Wednesday, he pled guilty to terrorism charges. Notably, the plea was entered in a military commission — a centerpiece of the Bush-Cheney counterterrorism approach that Sen. Barack Obama condemned on the 2008 campaign trail, much to the delight of the transnational Left. Qosi’s plea was doubly significant because material support to terrorism was included among the charges to which he admitted guilt.
President Obama has come grudgingly to accept military commissions, just as he now accepts the detention of enemy combatants without trial, the continuing operation of the Guantanamo Bay detention camp, the preservation of state secrets, and aggressive national-security surveillance. That’s what happens when you transition from hopey-change candidate to accountable commander-in-chief. Still, Obama has an agitated base to answer to, and they are agitated precisely because his Bush-bashing campaign rhetoric gave them cause to be.
Consequently, he’s made a series of rash moves that can be explained only by the desire to appease his core supporters. As Gitmo grads rejoin the jihad at a rate that alarms everyone except John Brennan (Obama’s ineffable counterterrorism czar), the imperative to continue detaining the rest is manifest. Thus, Obama’s ballyhooed Gitmo closure order, now seven months overdue and counting, is all but officially rescinded, and the absurd claim that the detention camp “causes” terrorism is barely mentioned anymore. The brute fact is that the public wants terrorists kept behind bars and outside our country. Congress knows that. With their eyes on the electoral calendar, Obama can’t afford to release the detainees and congressional Democrats can’t afford to help him transfer the detainees to the U.S. mainland. Politics can be a beautiful thing.
Politics is, in fact, what stopped the 9/11 plotters from bringing their act to Broadway. Well, actually, bringing it about a block east of Broadway, to federal court in Lower Manhattan. Obama wanted to give Khalid Sheikh Mohammed & Co. a civilian trial, to endow them with all the rights of the American citizens they had slaughtered. (The president deftly hung his attorney general out to dry on this hugely unpopular decision, but Eric Holder was dutifully carrying out his president’s policy.) Even in New York City — still solidly Obama country — this gambit sparked vehement protest, which inevitably prompted indignant congressional protests. The plan, at least for now, has been quietly dropped.
That could mean the 9/11 case will proceed as a military commission. This is as it should have been all along. In fact, had the administration not pulled the plug on military commissions upon coming to power in January 2009, KSM and his cohorts might already have been executed.
At the time of the suspension, a team of Justice and Defense Department lawyers had been diligently working for three years, making discovery and answering scores of defense motions. The effort cost taxpayers millions of dollars. The only thing of consequence that hadn’t happened was the trial itself. And on that score, KSM and his co-defendants announced their readiness to plead guilty and proceed to execution. As was the case with the New Black Panther Party voter-intimidation case, however, Team Obama would not accept victory on behalf of the American people. Instead, they threw the jihadists a lifeline: the prospect of the New York City soapbox KSM had craved from the day of his capture, but that the Bush administration had denied him.
Now, with the Qosi plea, military commissions at Gitmo are up and running again. That should mean that the archetypal war-crimes defendants — the terrorists behind the atrocity that took the nation to war — will find themselves back in the dock at the offshore naval base. Expect the political heat to make it so, regardless of Obama’s preference for the civilian-law-enforcement model of counterterrorism.
The success of a material-support charge against Qosi is also a triumph of our political system over Obama’s transnational progressivism. In 2009, the Democratic Congress moved to tweak military commissions, which Congress had authorized in 2006. Obama and his media allies have referred to this tweak as an “overhaul,” but that is just to save face: The president reluctantly realized he needed to keep the dreaded Bush-Cheney commissions, so he figured he’d better tell his base he’d done something to “fix” them. A few cosmetic changes were made, but nothing meaningful.
That is not to say, though, that the administration did not try to make one salient change: The Justice Department urged Congress to drop material support for terrorism as an offense triable by military commission. The availability of this charge could be crucial for prosecuting al-Qaeda operatives against whom proof of participation in an actual terrorist attack is weak. Yet, Assistant Attorney General David Kris posited that there was serious doubt whether material support was a cognizable war crime under international law.
As I argued at the time, there was no legal merit to this overwrought fear. It may be true that the international law of war limits the offenses prosecutable in presidentially authorized military commissions. But we no longer have presidentially authorized military commissions. In the 2006 Hamdan case, a slim Supreme Court majority bought the argument (advanced on behalf of the terrorists by lawyers now working in the Obama Justice Department) that the military commissions ordered by President Bush were infirm because Congress had not approved them. So Congress responded by approving them. Therefore, they are now congressionally authorized military commissions.
That’s a major difference. Regardless of international law, our Constitution makes Congress supreme in defining federal crimes and determining which courts have jurisdiction to try them. Congress was thus well within its power to make material support an offense triable by the military commissions it had established.
The Justice Department’s handwringing over international law was an administration smokescreen to avoid political accountability. If the president truly believed it was legally unsound to prosecute material support by military commission, he could direct that such cases not be brought. While Congress defines crimes, the executive branch has unreviewable discretion over whether to prosecute and what to charge. The president, however, would have to pay the political price for sparing terrorists from easily provable charges that could incapacitate them for years. And if Congress were to remove material support from the anti-terrorist arsenal of military commissions, lawmakers, too, would have to explain to voters why they would do such a thing while terrorists are plotting to kill Americans.
Because of this political pressure, Congress rebuffed the administration’s attempt to cashier material support. As a result, the law remains on the books, and the administration is under political pressure to use it, lest it be forced to explain why it is cutting a break for jihadists like Qosi.
Sure, the international-law professors hate it, and Obama’s anti–anti-terrorist base is incensed. But the rest of us will be very glad that Ibrahim Mahmoud al-Qosi today stands convicted by a military commission of material support. He pled guilty because, for all the hyperbole about fundamental unfairness, Qosi and his lawyers could find nothing worth challenging: The commissions are fine, and the material-support charge is entirely appropriate. With barely concealed chagrin, the New York Times acknowledges that no appeal is expected.
When the American people care about something, as they care about crushing al-Qaeda, politics can work wonders. Very soon, it could even land KSM back in a humbling Gitmo courtroom, an eternity removed from a star turn on the Great White Way.
– Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.