By Andrew C. McCarthy
http://www.nationalreview.com
November 5, 2011
Binyam Mohamed is back in the news. You may remember him as the al-Qaeda operative who was slated to help would-be “dirty bomber” Jose Padilla conduct a second wave of post-9/11 attacks, targeting American cities. You also may not remember him. After all, the Obama administration quietly released him without charges.
Well, there’s a new chapter in this sordid tale. Mohamed is living large — taxpayer-funded large — in Great Britain. For that, we can thank the Lawyer Left’s stubborn insistence that enemy war criminals are really run-of-the-mill defendants. Actually, make that run-of-the-mill plaintiffs.
Unlike Padilla, who actually got into the United States, only to be apprehended in Chicago, Mohamed was captured in Karachi and turned over to the CIA. (Marc Thiessen provides more details about the case here.) Mohamed was interrogated by American and British intelligence.
The U.S. Defense Department wanted to try Mohamed by military commission. Alas, Britain’s Labour government was deathly afraid of the potential for a trial to expose its complicity in “enhanced interrogation” tactics, which an international propaganda campaign had equated with “torture” — and how about a round of applause for Sen. John McCain and Attorney General Eric Holder for sharpening that arrow in every defense lawyer’s quiver? Like virtually all captured terrorists now do, Mohamed claimed to have been tortured with Saddam-style cruelty. And as is virtually always the case, to call the allegation overblown is not to do it justice. Based on disclosures in various court cases, it is now clear that Mohamed was subjected to stress — essentially, sleep deprivation. Compared to actual torture, that is trivial.
Yet, goaded by its base (the leftist and pro-Islamist contingents that now make up the Occupy London crowd), the Blair-Brown government pleaded with the Obama administration to transfer Mohamed from Gitmo to England. The fact that Mohamed, when he was captured in the midst of plotting to kill thousands of people, had been trying to board a flight to London with a fake British passport was apparently of no import. That he is an Ethiopian national who had no legal right to be repatriated to England did not matter. The same British government that slammed the door on Geert Wilders, an anti-Islamist Dutch parliamentarian, rolled out the welcome mat for the jihadist. President Obama acquiesced, and Mohamed was released — free and clear.
Yes, free and clear. The Obama administration said barely a word about Mohamed’s transfer. Odd, since this was early 2009, right when the administration was gearing up its campaign to give enemy combatants civilian trials, and Mr. Holder was here, there, and everywhere, assuring every ear that there was no terrorism case the justice system could not handle. In fact, the officials involved in the decision to release Mohamed understood full well that he would be neither detained nor prosecuted by British authorities. He was to be freed.
To grasp just how outrageous that is, a comparison is in order. After being held for years as an enemy combatant, Mohamed’s accomplice, Jose Padilla, was finally convicted in civilian court. The charges involved terrorism, but not the “9/11 second wave” plot that had led to his capture (about a month after Mohamed’s). This was not because the second-wave conspiracy was fiction. It was because the plot could not be prosecuted under civilian due-process standards. To prove it, prosecutors would undoubtedly have had to cut deals with witnesses who knew its details — al-Qaeda bigwigs such as Khalid Sheikh Mohamed. As if that prospect were not unacceptable enough, such deals require the government to disclose the intelligence debriefings of these witnesses — something that is intolerable in wartime.
That is one of the principal reasons the Bush administration adopted, and Congress later endorsed, a military-justice system for detaining and prosecuting enemy war criminals. The military system makes possible prosecutions that would be impractical under civilian rules: It provides additional protections against unnecessary disclosure of intelligence, and it eases evidentiary standards so that information from witnesses can often be presented by hearsay, rather than by calling the witnesses themselves.
Regrettably, the Bush administration flinched from a Supreme Court challenge to its treatment of Padilla as a military detainee — even though the Fourth Circuit had upheld Padilla’s detention in 2005 (no thanks to an amicus brief filed on Padilla’s behalf by some lawyer named Eric Holder). As it happens, Padilla had been an ambitious enough terrorist that his hands were in multiple schemes, including one in Florida to recruit jihadists to commit mayhem overseas. Had that not been the case, the decision to treat Padilla as a mere criminal defendant would have resulted in his outright release. And because, unlike Mohamed, Padilla is an American citizen, we would have had no recourse against his living in our midst.
Echoing Mohamed, Padilla claimed to have been tortured. But the courts ruled that this was irrelevant: Even if his allegations were true, the abuse was a matter separate from the question of whether he had committed terrorism crimes — at least as long as the government did not attempt to use evidence derived from the alleged abuse to prove his guilt. A federal court in New York City drew the same conclusion in a prosecution against one of the 1998 embassy bombers, who also claimed he had been tortured. Padilla’s indictment thus stood. In fact, the most notable aspect of his case is that a federal appeals court found the 17-year sentence imposed by the trial judge to be woefully inadequate. The jail term has been remanded to the lower court for re-sentencing.
Now, let’s contrast this with the treatment of Binyam Mohamed. Because he is not an American citizen, there would have been no tenable legal objection to trying him for war crimes by military commission. (The Military Commissions Act directs that only alien enemy combatants may be subjected to such military tribunals.) And even if, in slavish deference to its political base’s aversion to commissions, the Obama administration remained hell-bent on resisting a military war-crimes trial, Mohamed could still have been detained indefinitely. Indeed, our military is still holding at Gitmo scores of enemy combatants who are less serious offenders than Mohamed — in the sense that, however threatening they may be, they did not plan to carry out mass-murder plots on American soil. In sum, the Obama administration could have declined to transfer Mohamed — certainly in the absence of a commitment that the Brits were willing and able to keep him under lock and key. If the president had done that, Mohamed would still be detained at Gitmo today.
But instead, Mohamed has hit the jihad jackpot in Albion — or is it al-Bion? I’ve previously noted that British authorities not only released him but also sustained him on public welfare. Now, we learn, that’s not the half of it.
The British government has actually given this al-Qaeda celebrity a cool £1 million payment. Mohamed, you’ll be shocked, shocked to learn, showed his gratitude for being extracted from Gitmo through the intercession of Her Majesty’s government by . . . suing the Brits for being complicit in his “torture.” The £1 million payment is the settlement the government decided it was best to have British taxpayers fork over. Thus, the Daily Mail reports, Mohamed was recently able to plunk down £250,000 for a lovely three-bedroom, two-bathroom terrace house in Norbury, South London — conveniently located near the Croydon Mosque and Islamic Centre.
That makes him one of 16 terror suspects who have scored huge financial payouts by simply claiming to have been mistreated by security and intelligence officials. Why does the British government settle rather than fight these claims by jihadists whose goal is to destroy the very system on which they are feasting? Because the Lawyer Left that makes up the transnational progressive vanguard insisted that enemy-combatant terrorists should be seen as civil litigants, and the Brits went along.
Under prevailing justice-system rules, the jihadist gets to sue and, if the British government tries to contest the case, the jihadist is entitled to discovery of all the intelligence about him in British government files. With this lawfare gun at its head, the government’s choice is to tell al-Qaeda what the West knows (and how we know it) or pay pricey settlements. Justice Secretary Ken Clarke explained that Mohamed got £1 million because, if the government hadn’t settled, the case might have cost British taxpayers £50 million.
One unnamed British government official told the Daily Mail, “The danger is that we have become a cashpoint for terrorists.” Gee, you think?
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.
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