We have a clueless ideologue, or, more likely, a hopelessly dishonest ideologue, as commander-in-chief. There can’t be any other explanation.
The Hill reports that President Obama has said he would have had Osama bin Laden sent to a civilian U.S. court for a criminal trial if the Navy SEALs had captured him, as opposed to killing him. The report is based on a Vanity Fair article derived from Mark Bowden’s new book, The Finish. Using the constitutional term “Article III” as lawyers often do in referring to the civilian federal courts, the report quotes Obama as explaining,
We worked through the legal and political issues that would have been involved, and Congress and the desire to send him to Guantánamo, and to not try him, and Article III…. I mean, we had worked through a whole bunch of those scenarios. But, frankly, my belief was if we had captured him, that I would be in a pretty strong position, politically, here, to argue that displaying due process and rule of law would be our best weapon against al-Qaeda, in preventing him from appearing as a martyr.
It is hard to know where to begin with anything this foolish. Let’s start with dishonesty. Thanks to the train wreck Obama’s demagoguery against Bush counterterrorism has made out of terrorist detention, our forces have killed in several situations — including the bin Laden raid — when it might well have been possible to capture terrorists. A president who actually believed the fantasy that Muslim populations are swayed by how much “due process and rule of law” we give to jihadist terrorists would never have adopted a kill-over-capture preference. For all his agitation against Bush’s war-paradigm for confronting our terrorist enemies, Obama has made liberal use of it in killing terrorists without any judicial warrants or trials. As he well knows, the law of war is the rule of law in wartime, and he has obviously not wasted much time fretting over due process.
Secondly, my former defendant the Blind Sheik, Omar Abdel Rahman, got all the due process and rule of law that our system is capable of displaying during the 9-month civilian trial we gave him in 1995 and the 3-year appellate process that followed. How has that helped us with shaping attitudes in Muslim countries about al-Qaeda and about the Blind Sheik himself? Muslim populations care only that we are detaining him — they couldn’t care less how much due process he got or whether he is being held in a civilian prison or Gitmo. He is a hero for making war against us, and Egypt — very much including its new president from the Muslim Brotherhood — is demanding his return. Moreover, in the years after the Blind Sheik was convicted, al-Qaeda enjoyed wild popularity among Middle Eastern Muslims, who reveled in bin Laden’s attacks against us, many taking to the streets to celebrate. In a 2008 interview, the Muslim Brotherhood’s then-supreme guide, Muhammad Mahdi Akef, opined that bin Laden himself should be revered as a “mujahid” — a term of honor for a warrior in Allah’s cause — and that, while the Brotherhood did not always agree with his targets, bin Laden was “close to Allah on high” when it came to resisting “the occupiers” — by which he meant … us.
Finally, even if we ignore the fact that military commissions are the time-honored way of dealing with war crimes and that Congress has endorsed them multiple times, the main reasons we use them are to protect classified information and to avoid unnecessarily rewarding the worst savages with the gold-plated civilian due process that is designed for American citizens — a benefit that perversely incentivizes them to persist in their atrocities. In bin Laden’s case, a civilian trial’s due process rules would have required the revelation of more classified information and sources than any terrorism case in history. Plus, he was the very worst of the worst — if you are going to have military commissions for war crimes at all, he is the textbook case.
Personally, I’m confident the president is lying. I don’t believe there was any way he’d have announced a civilian trial for the likes of bin Laden … at least until after the election.