ANDREW McCARTHY: A TERRORIST RELEASED…THE OBAMA ADMINISTRATION LET BINYAMIN MOHAMED GO
http://www.nationalreview.com/articles/282289/terrorist-released-andrew-c-mccarthy
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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