Bad Idea: Five Gitmo Combatant-Detainees to be Tried in New York

It really has become just a prosecution of the War on Terrorism. Obama will bring Khalid Sheik Mohammed and four other detainees to New York to face criminal charges.

Bringing such notorious suspects to U.S. soil to face trial is a key step in President Barack Obama’s plan to close the terror suspect detention center at Guantanamo Bay, Cuba. Obama initially planned to close the detention center by Jan. 22, but the administration is no longer expected to meet that deadline.

The New York case may also force the court system to confront a host of difficult legal issues surrounding counter-terrorism programs begun after the 2001 attacks, including the harsh interrogation techniques once used on some of the suspects while in CIA custody. The most severe method — waterboarding, or simulated drowning — was used on Mohammed 183 times in 2003, before the practice was banned.

Several other terrorists including one of the U.S.S. Cole attackers will face military commissions. I'm going to assume that the Obama people have determined which of the bunch have a likelihood of conviction under the more burdensome evidentiary rules of the criminal courts. Those without a high likelihood of conviction are probably being kept for the military commissions.

That's almost shameful, by the way. The President undermines the legitimacy of the military commissions, but doesn't have the stones to replace them or end them. There is no guiding principle here, no brave and historic philosophy of governance. It's mere electoral practicality.

The President knows he can't merely sit and do nothing this time. He made a bunch of nice words about closing the detention facility at Guantanamo Bay and sending these guys to criminal trials. His minders probably pulled him aside twenty minutes after sitting down in the Oval Office and explained that if he did that, he'd never see a second term. As a result, we have this bifurcated prosecution. Some go to criminal trials, some go to military commissions and not a rhyme or reason to it except the President wants to be reelected.

Sidebar: that number, 183, has become the received wisdom on KSM's waterboarding. It is not actually the number of times he was waterboarded and it's a shame that the NY Post is repeating it.

posted by Gabriel Malor at 09:26 AM

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