February 24, 2010

NY al Qaeda Plea Tells Us Nothing About Military Tribunals


Yesterday Eric Holder held up the plea-bargain reached with al Qaeda trained terrorist Najibullah Zazi as a model of how the criminal justice system worked to thwart terror. He's right, in this case a subway bombing plot that could have killed hundreds was thwarted. And because Zazi is now cooperating several of his associates will probably go to jail.

Two friends from his Flushing, New York high school have been charged in connection with the plot. A Bosnian named Adis Medunjanin attended the al Qaeda camps with Zazi and an Afghan named Zarein Ahmedzay was also part of the plot.

But what Holder fails to mention is that the plot investigation was a botched one. By asking questions of Zazi's former imam, Zazi learned that the FBI was on to him. He was able to ditch the bomb making material and warn the others to do the same.

As Andy McCarthy notes over at NRO:

In any event, the positive development of Zazi’s guilty plea does not transform the case into a model. To the contrary, it remains a screw-up....

while the mistake does not condemn the civilian justice system, neither does the guilty plea establish anything conclusive about the effectiveness of the system. Even less does it demonstrate the system’s overall effectiveness against international terrorism....

Nobody is “trying to take this tool out of our hands.” Nobody is saying terrorism cases should never be tried in the civilian courts. The point of Bush counterterrorism was to correct the ineffective Clinton model, which treated international terrorism only as a crime, to be handled as such in all cases. It grossly oversimplifies the matter to say that the pre-9/11 error was to prosecute terrorism cases in civilian court. Rather, the error lay in (a) believing that we were dealing with mere crimes rather than a war, (b) therefore believing that all facets of terrorism, including atrocious acts of war, were fit for civilian prosecution, and (c) concluding that we could deter our enemies and protect our citizens with nothing more than civilian prosecution.

Which is exactly the point. The Zazi case does, rightfully, belong in the civilian court system. Zazi is an American citizen who committed acts of treason on American soil. Cases like Zazi's should be handled by our criminal courts.

What the case does not do is inform us on how Khalid Sheikh Mohammad or any other Guantanamo detainee should be handled. We are fighting a war against al Qaeda and the Taliban. Congress has designated them the enemy. These enemies have been rounded up on the field of battle abroad by our military or intelligence agencies, or government's sympathetic to our cause. They are not common criminals who have been extradited by the Justice Department.

To treat those caught on the battlefield as criminals is to imagine that the hundreds of thousands of American men and women involved in military operations in Iraq and Afghanistan were not at war.

Instead, they are just beat cops. Beat cops with tanks, but still beat cops.

We are at war. In war, the people you kill or capture are the enemy.

In no prior war have we transferred captured enemies back to the homeland. Even when those enemy combatants had committed war crimes -- as is clearly the case when speaking of Khalid Shiekh Mohammad and other al Qaeda members -- they have been tried over seas. After the war was over. By specially created war crimes tribunals. The Nuremberg Trials were military tribunals.

Personally, I favor Winston Churchill's idea of summary execution. It was a Democratic president, FDR, who suggested military tribunals. Oh how far the Democratic party has come!

By Rusty Shackleford, Ph.D. at 10:33 AM | Comments |