BARACK BUMBLES LEGAL QS
By SCOTT W. JOHNSON
New York Post
June 23, 2008
Abdel-Rahman: Continued jihad from jail
SPEAKING without a text in front of him, Barack Obama betrays a troubling lack of knowledge on important issues - such as the law and terrorism.
In his ABC interview last Monday, for example, Obama attacked the Bush approach on fighting terror. He claimed that, in the case of "the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in US prisons, incapacitated."
As an assistant US attorney, Andrew McCarthy prosecuted the perpetrators of the 1993 WTC attack. He calls Obama's statement "a remarkably ignorant account of the American experience with jihadism."
Writing for National Review Online, McCarthy notes: "While the government managed to prosecute many people responsible for the 1993 WTC bombing, many also escaped prosecution because of the limits on civilian criminal prosecution.
"Some who contributed to the attack, like Khalid Sheik Mohammed, continued to operate freely because they were beyond the system's capacity to apprehend. Abdul Rahman Yasin was released prematurely because there was not sufficient evidence to hold him - he fled to Iraq, where he was harbored for a decade (and has never been apprehended)."
Pointing to the later terrorist attacks on Americans and US assets, culminating in 9/11, McCarthy concludes that the law-enforcement approach to combating terrorism was futile.
But Obama's comments fall short on other grounds, too.
The convicted spiritual mentor of the 1993 WTC bombers is Omar Abdel-Rahman ("the blind sheik"). By Obama's logic, the blind sheik was "incapacitated" and therefore rendered harmless by his conviction and imprisonment. In fact, Abdel-Rahman continued to wage jihad from behind bars, issuing instructions to his followers in Egypt.
Attorney Lynne Stewart was convicted in February 2005 of conspiracy and providing and concealing material support of terrorism for her actions in smuggling messages from Abdel-Rahman to his followers in the terrorist group Gama'a al-Islamiyya (Islamic Group).
The jihadist activities of Abdel-Rahman from behind bars, plus the collaboration of his attorney, illustrate the challenges President Bush sought to confront fairly with the arrangements for the detention and isolation of captured enemy combatants in Guantanamo.
Of course, the Supreme Court just upended those arrangements with its controversial ruling in the Boumediene case, which gave Gitmo detainees the right to challenge their confinement through habeas corpus proceedings in federal court.
Obama approves: He recently asserted that the "principle of habeas corpus, that a state can't just hold you for any reason without charging you and without giving you any kind of due process - that's the essence of who we are."
He explained: "I mean, you remember during the Nuremberg trials, part of what made us different was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court and that taught the entire world about who we are, but also the basic principles of rule of law. Now the Supreme Court upheld that principle."
Oops. At Nuremberg, an international military commission composed of representatives of the victorious Allies put the top surviving Nazi leaders on trial starting in late 1945.
Yet, in Boumediene, the Supreme Court disapproved of the system of military commissions that Congress had adopted for Gitmo (at the high court's previous urging). Thus, the Nuremberg defendants' "day in court" came before a kind of tribunal found constitutionally inadequate in the decision Obama was praising.
The Nazi war criminals had no access to US courts. The fair-trial provision of the charter governing the trial was relatively skimpy - and the provision on appeal rights was even shorter and sweeter: The defendants had no right to appeal. The procedures the court found deficient in Boumediene, by contrast, provided for appeal rights to the DC Circuit, the most prominent US bench below the Supreme Court.
In short, the procedural protections for Gitmo detainees under the statute before the Supreme Court in Boumediene exceed those accorded the Nuremberg defendants.
Obama's unfavorable comparison of the legal treatment at Gitmo with that at Nuremberg suggests either that he doesn't know what he's talking about - or that he feels free to exploit the ignorance of audiences that don't know the truth of the matter.
Scott W. Johnson is a Minneaopolis attorney and contributor to the blog Power Line (powerlineblog.com).