The problem is that there must be a better defense for Attorney General Holder’s choice to try the Underpants Bomber in civilian courts than “Bush did it.” In other words, could it be that Bush got it right, and that the reasons for trying Umar Abdulmutallab as a civilian stand on their own? After all, even a blind pig gets an occasional truffle.
At present, the debate is about whether we should try the terrorist in a military tribunal or in a civilian court. The case for the civilian courts is easy to make. The symbolism of trying an al Qaida terrorist in downtown Manhattan is potent, indeed. Additionally, the civilian courts have judges and prosecutors with vast experience in the prosecution of terrorists. The U.S. Attorneys have an excellent record of putting terrorists behind bars with no possibility of escape or release.
Far be it from me, a self-described knee jerk liberal, to prejudge the case of the Underpants Bomber, but safe to say, there is no chance of him being acquitted and released. It is likely that the U.S. Attorney will hold some charges in reserve so that even if he were acquitted, the government would simply bring new charges against him. While it is theoretically possible that he could be acquitted on all charges, it is also possible – in theory, at least – to get hit by lightening twice on the day you win the lottery.
What about the case for military tribunals? They have secured the convictions of three so-called terrorists, two of whom have since been released from custody. The highest ranking al Qaida partisan to be convicted was Bin Laden’s driver.
Military tribunals have a long history in the law of war. They are provided to deal with a particular situation which occurs frequently in the fog of war, videlicet, a person is captured and it is not certain whether he is a combatant or a civilian. If he is a civilian, he must be released, but if he is an enemy combatant, he may be held until the end of hostilities. At that point he must be released, unless he is held over for trial in civilian courts on charges alleging war crimes.
The first question we must ask is whether or not Abdulmutallab is an enemy combatant. It is entirely possible, though not very likely, that he was a mentally disturbed individual who acted on his own, for his own purposes. It is also within the realm of possibility that a fair court could reach this conclusion, by mistake. Let’s assume that if any of these possibilities came to fruition, the would-be Christmas day bomber would be arrested and tried in a civilian court.
Of course, it is much more likely that he would be held to be an enemy combatant, and placed in custody to await the outcome of the war. Say what? What will happen if three years from now, the vigorous efforts of the Obama administration to disrupt, dismantle, and destroy al Qaida are successful? Suppose, for example, that the government of Afghanistan arrives at some modus vivendi with the Taliban, and together they agree to disarm al Qaida and execute the leadership. This sounds like good news, but especially so for Captain Underpants, since the legal rationale for holding him will no longer exist.
In other words, what Dick Cheney and his ditto heads are saying is that we will never win the war on terror. The question that needs to be asked is why are Republicans surrendering in the War against Al Qaida?
If we are going to follow the example of the previous administration shouldn’t we start with framing the issue to our best advantage? After all, the party that won World War II shouldn’t lose an argument to the party that cut and ran in Vietnam. The party that won the war in Kosovo, shouldn’t take a back seat to the party that got us mired in Iraq by lying to the American people. The party that sold arms to Iran to raise money for the Contras ought not to be lecturing Democrats on national security. The party that tried to destroy the American constitution isn’t the one teach us about criminal procedure.
... and tell ’em Big Mitch sent ya!