October 12, 2010 | National Review Online

Some Pragmatism

‘Obama’s administration has adopted what it calls a flexible approach” to terrorism cases, says the Reuters dispatch. The president, Reuters elaborates, “favor[s] military tribunals in some cases and civilian trials in others.” By contrast, we’re told, “most Republicans say all terrorism suspects should be tried in military tribunals.”

None of this is right — except that Obama officials claim their doctrinaire approach is flexible. Nevertheless, Reuters’s assessment surely reflects the public’s muddled understanding of where competing sides stand in the muddled terror-trial debate. That debate is stirring anew thanks to a Manhattan federal judge’s decision to suppress key evidence in the trial of Ahmed Ghailani, a terrorist accused of murdering 224 people in the 1998 embassy bombings.

If President Obama’s approach were actually flexible, Ghailani would by now have been shipped back whence he came: Guantanamo Bay. That’s where the confessed al-Qaeda operative was detained as an enemy combatant from the time of his 2004 capture in Pakistan until the Obama administration transferred him to the civilian justice system for trial. Ghailani would be back at Gitmo because policy makers who are truly flexible make adjustments when their strategies backfire and better options are available. That is pragmatism. True, Ghailani may still be convicted in a civilian trial — let’s hope so. But the judge’s ruling, which prevents the government from calling the witness who sold Ghailani the explosives used to bomb the U.S. embassy in Tanzania, shows that this is no sure thing.

It would be easier to get the government’s proof admitted at a military commission under less burdensome rules. Such commissions remain legally available. And there is no real doubt about Ghailani’s guilt: He has confessed, and others have implicated him. This is all a real pragmatist would need to know. A flexible president would be looking neither to vindicate civilian due process nor belittle military justice. He’d be looking for the option that gave him the best chance of obtaining the right result.

President Obama puts on pragmatic airs, but it is strictly a show. He is an ideologue of the Left. Any grudging adjustment he makes occurs only within that framework. While political winds must be navigated, the ship never veers from his charted course.

Obama sought the presidency as the candidate who would turn the clock back to the 1990s. He idealized the Clinton years, when terrorism was treated only as a crime, when preventing it was decidedly secondary to prosecuting it and the courthouse was the only battlefield on which the government had any interest in meeting al-Qaeda — an arrangement that suited al-Qaeda just fine.

Outside Obama’s left-wing base, Americans don’t share these sentiments. Their speed is more President Bush’s conception of counterterrorism as a defensive war to quell enemies — not defendants but enemies — who are actively making war against the United States. The war in Iraq and, now, in Afghanistan, turned unpopular, but that is because its focus drifted from defeating Islamist terrorists (an aim still strongly supported) to building Islamic democracies (an aim that never had strong support).

Leftists mistook the unpopularity of the war overseas for a rejection of Bush’s robust antiterrorism approach at home. They assumed that because the public was confused and angry over the unrequited sacrifices our troops were making, Americans must also have bought the ACLU narrative that Bush had shredded the Constitution. In point of fact, Americans are very content to have terrorists treated as military enemies and killed or captured before they can strike. They don’t think Gitmo is a gulag, they don’t see military justice as a kangaroo-court system, they don’t believe alien jihadists should automatically be endowed with constitutional rights, and they don’t want those jihadists brought into our country, where — the public adroitly suspects — our federal judges will find reasons to order their release.

Thus far, in the realm of counterterrorism, Obama’s presidency has been about dialing back exuberant promises made while conflating the public’s war weariness with the Left’s cartoonish indictment of Bush. Yet, there is no real mystery about where Obama wants to take us. He has backed down on closing Gitmo, but he wants it closed. He has backed down — at least until after the midterm elections — on trying the 9/11 hijackers in civilian court, but he wants all terrorists tried in civilian court. He has kept military tribunals available in theory, but, in practice, he won’t use them.

Indeed, for Reuters to depict Obama as “favoring military tribunals in some cases and civilian trials in others” is laughable. The administration consigned a single terrorist, U.S.S. Cole bomber Abd al-Rahim al-Nashiri, to a military commission — and then pulled the plug on it. The president wants to be perceived as pragmatic while clinging to ideology. He kept the commissions that he’d campaigned against and even feigned using them. But, transparently fearful that a successful commission prosecution would undermine his overarching goal of returning to Clinton-era counterterrorism, he killed the commission and hoped no one would notice.

Republicans, however, should take less comfort from the fact that people have noticed. “Obama the pragmatist” may be a discredited narrative, but Reuters’ assertion that “most Republicans say all terrorism suspects should be tried in military tribunals” is one the public, by and large, believes. That is a problem because it is not where most Americans are, nor should they be.

Contrary to the contentions of Obama partisans, Bush counterterrorism was not about removing civilian prosecution from the equation. If anything, national-security conservatives want more civilian prosecutions. We want stepped-up use of statutes, such as material support to terrorism, that enable the government to starve terrorist cells of funding and strangle plots in the cradle. We want aggressive investigation and prosecution of so-called home-grown terrorists who are inspired by Islamist ideology but without operational ties to al-Qaeda and its affiliates. We want the government to stop canoodling with the Muslim Brotherhood’s American satellites.

For one category of offender, we have urged the use of military tribunals: alien enemy combatants. Very specifically, these are jihadists, plotting and carrying out attacks against Americans, as members of the al-Qaeda enemy identified by Congress in its authorization of military force. Controlling such enemy prisoners is a core aspect of war-fighting. Military tribunals have the dual benefit of keeping control of this task where it belongs — in the hands of commanders, not judges — while ensuring that our enemies are not able to exploit civilian due process as a tool of warfare.

To insist that these offenders go to the military justice system is a far cry from wholesale rejection of civilian prosecution. Bush counterterrorism acknowledged that civilian due process has an important role to play, but not the starring role it had in the Nineties — not if we are to prevent terrorist attacks rather than content ourselves with post-atrocity prosecutions.

Republicans need to do a better job of making this clear. The Obama administration has prioritized “outreach” to Islamists. It has quietly stifled the Bush crackdown on Islamic charitable fronts, a lifeline for terrorist organizations. Such policies critically undermine the Justice Department’s proper counterterrorism role. Yet Obama apologists have managed to convince a goodly portion of the public that Obama at least wants the Justice Department to have a counterterrorism role, whereas Republicans want to turn every terrorism case into a military matter.

The sooner that misimpression gets corrected, the more effectively a new Republican Congress will be able to probe what Obama counterterrorism has wrought.

– 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.