In case you have not noticed, the Obama policy actually remains unchanged from Bush’s. He has wanted to change it but was unable to because of popular opinion. His only explicit chance at demonstrating a difference turned out to be this Ghailani case, which is now a public relations nightmare. Having all but one count dropped may not have been as scary close as it seems, but it is close enough for people’s original suspicions to be justified.
The US is a party to all Geneva Convention protocols. But the concept of what constitutes an unlawful combatant, a lawful combatant, a POW and whatever sub-categories exist, is Talmudic to the extreme. Yet these interpretations do determine the legality of various policies. I am confident that logical arguments in the abstract, given the unanticipated recent rise of cross national guerrilla warfare organizations such as al Qaeda, can make opposing legal arguments each sound plausible. I am equally confident that such laws as now written have significant internal contradictions and undefined operational definitions that make the interpretation itself the precedent setting and law defining event.
Like all law, therefore, this means the choice to try Ghailani in New York City was purely political in nature. The Obama administration chose to take this course of action (which he effectively has already reversed by the cancellation of the KSM trial) based on his political views. It was designed to curry favor with the internationalist left wing element of the Democrat party of which he and Holder are a part. Obama even seemed to have the naive belief that this would actually help in our relationship with these terrorist organizations and enemy nations.
Now we have Biden proclaiming the civil trial is better because the sentence is longer than it would have been had there been a military tribunal. We have no idea what would have happened under a military tribunal. But is that the case he is supposed to make? Its process they have always argued for, not outcomes. I could be wrong, but is there any chance at all Ghailani would have been released under any circumstances even if declared not guilty? The answer is no. It would be absolute political suicide. This was all but stated explicitly by Holder in Congress when making his case for a civilian trial of Mohammed.
This “we guarantee conviction” argument is a strong reason for not having civilian trials of known terrorists. These really are and would be show trials. These guys would never go free because it would guarantee electoral disaster. So why push the envelope on this issue? The people have zero sympathy for fake constitutional rights for terrorist enemies such as Ghailani.
Obama actually has heard this message loud and clear. If the KSM revolt did not do the trick, the dismissal of 285 counts in the Ghailani trial certainly did. But he is stuck, hoisted once again on his own petard.
Perhaps if he only communicated with us more…………….
