President Barack Obama's Justice Department has quietly abandoned the long-delayed prosecution before a military tribunal of suspected USS Cole bomber Abd al-Rahim al-Nashiri, signaling that a civilian trial may be in the works – but not to be revealed until after the November elections.
The Washington Post reported Thursday that “In a filing this week in the U.S. Court of Appeals for the District of Columbia, the Justice Department said that ‘no charges are either pending or contemplated with respect to al-Nashiri in the near future.’”
The Post quoted a “military official” anonymously, who charged, “It’s politics at this point,” adding that “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.”
Appearing in National Review’s The Corner, former U.S. attorney Andrew McCarthy, who successfully prosecuted the 1993 Twin Tower terrorists, provided a conjecture: “If I were Attorney General Holder and President Obama, and I were hell-bent on giving the top al-Qaeda terrorists civilian trials,” McCarthy said he would “add the terrorists involved in both the 9/11 and Cole attacks” to the civilian prosecution of Ahmed Ghailani, charged in the 1998 U.S. embassy bombings in Kenya and Tanzania, a case being handled by Manhattan Federal District Court Judge Lewis Kaplan.
Kaplan earlier this year dismissed a Ghailani motion to have the charges against him thrown out on the basis that he was denied the constitutional right to a speedy trial. This tough judge, appointed to the federal bench by President Bill Clinton in 1994, could be the key to the Obama administration successfully using the civilian legal system to convict terrorist prisoners that the Bush administration kept at Guantanamo Bay in a state of legal limbo.
Obama could then take credit for bringing al-Qaida terrorists to justice using the same legal system to which ordinary American citizens are subject – a system former President George W. Bush clearly distrusted in regard to dealing with foreign terrorists.
Some 17 U.S. sailors were killed in 2000 when suicide bombers cruised a small craft alongside the Cole at a harbor in Yemen. Nashiri was secretly delivered from a CIA foreign “black site” to Guantanamo in 2003, on board the same unmarked government jet as three fellow high-ranking al-Qaida members.
Not just Cole plotter Nashiri but even 9/11 mastermind Khalid Sheikh Mohammed could end up before Judge Kaplan. Both men were waterboarded, and as Bush White House speechwriter Marc Thiessen notes in the book “Courting Disaster,” the CIA inspector general found that after undergoing enhanced interrogation techniques, Nashiri “provided information about his most current operational planning.”
The wrong civilian judge could rule that Nashiri and other al-Qaida defendants cannot be convicted because of unconstitutional offenses committed against them by CIA or other U.S. personnel.
McCarthy wondered if Obama would delay announcing a civilian trial for these al-Qaida operatives “until after the November elections because of the uproar it would cause and the hot seat on which it would put Democrats already beleaguered in their re-election bids.”
Commentary magazine’s Jennifer Rubin similarly warned of a post-election announcement of a civilian trial for the two: “a final decision on KSM has also been delayed, it is widely assumed, so that the administration need not disclose its intentions before the election,” Rubin blogged Friday. “In an administration with plenty of both, this ranks near the top when it comes to hypocrisy and politicizing the administration of justice.”
Only two Gitmo cases are currently underway, both sent to trial during the Bush administration. Defense Secretary Robert Gates, who stayed on as Pentagon chief when Obama became president, in January, 2009 ordered that no further cases be referred to military commissions for trial. Gates’ order remains in effect.
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