Over at The Corner, in “Military Drops Cole Bombing Charges … For Now and Possibly Forever,” Andy McCarthy has some important observations about Obama’s ordering the charges withdrawn against the USS Cole bombing mastermind:
[…] I hate to say “I told you so,” but I predicted this in Tuesday’s article as one of the likely outcomes after the military judge in Nashiri’s case, U.S. Army Col. James Pohl, foolishly rebuffed President Obama’s reasonable request for a four-month adjournment while the new administration ponders whether military commission trials or some other option (like trials in the civilian justice) are the best way of dealing with terrorist war crimes.
This is worth recounting because there is another outcome that could very well be occasioned by Judge Pohl’s folly. As I also discussed Tuesday, it is entirely possible that
Obama will discover in Pohl’s grandstanding evidence for his own belief that terrorism cases belong in the civilian justice system, where they were before 9/11. That would be a lamentable outcome. The military commissions have not performed well, but the paradigm of detentions and prosecutions under the laws of war””whether administered by the military or by a new hybrid system with civilian judicial oversight””is essential to our security.
If we go back to a September 10 way of doing things, under which only those who can be convicted under daunting civilian court standards may be detained, we will get September 11 results.
On that score, it is noteworthy that, before the appointing authority acted this evening, Obama had scheduled a meeting for tomorrow afternoon with victims and families of victims not only of the Cole bombing but of of the 9/11 attacks. At a minimum, he appeared poised to announce he was dropping the Cole charges against Nashiri. All evening, however, it has been floated from several knowledgeable sources that the president was prepared to announce the dismissal of all the commission cases “” i.e., not only against Nashiri but against Khalid Sheikh Mohammed and the other 9/11 plotters. That suggestion is supported by the fact that the 9/11 families were invited to the White House meeting: there would have been no need to invite them to discuss an announcement that impacted only the Cole case.
Dismissals, if they happened, would surely be couched as “without prejudice.” That is, Obama would be able to tell the families “” whether he meant it or not “” that he could always re-file military commission charges if he ultimately decided that commissions, rather than civilian trials, were the best way to go. […]
Maybe his ultimate decision would be to transfer the war-crimes detainees for trial in civilian court, maybe it would be to ship them to some country willing to take them, or maybe it would be to continue detaining them without trial under some new legal system. But you could bet the ranch that war crimes defendants would never again be charged in military commissions. Obama’s antiwar base, which rejects the premise that we are at war, cannot abide such military prosecutions.
September 10 America is back.