This column originally appeared on Human Events on September 16, 2009.
People are again talking about fighting terrorism in the wake of Scotland freeing a man who murdered 180 Americans on Pam Am 103 over Lockerbie and Eric Holder’s criminal investigation of the CIA. In the midst of that discussion, Barack Obama has let a terrorist detainee go free.
Mohammed Jawad was released from Gitmo when a federal judge granted his habeas petition. President Obama could have appealed this ruling, but instead caved in, returning this terrorist to Afghanistan on August 24.
This situation springs from Boumediene v. Bush. On June 12, 2008, a narrowly-divided Supreme Court handed down Boumediene, extending the writ of habeas corpus to foreign terror suspects at Guantanamo Bay, Cuba (Gitmo). Under habeas, American citizens or anyone detained on American soil can petition a judge to order their release if the judge finds their detention unjustified. It had never before been applied to foreigners on foreign soil.
The four conservatives on the Court passionately dissented in Boumediene. Justice Antonin Scalia wrote, “Today the Court warps our Constitution … It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving in a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner…. The Nation will live to regret what the Court has done today.”
Then on July 30, 2009, a federal judge granted habeas to Jawad, ordering him released because the evidence was legally insufficient to hold him.
This decision marks the first step toward fulfilling Justice Scalia’s prophecy. Whether or not Jawad returns to the battlefield, he is only the first to be released by a habeas petition; there will be others. Some will return to the battlefield. Sooner or later, one will kill an American. Heaven forbid that any of them carry out a major attack like 9/11.
Our civilian courts are designed to heavily favor defendants in domestic life, not a war on foreign soil. Courts use extremely restrictive rules of evidence and procedure. People can only be convicted in our court system if every element of a crime has been proven beyond a reasonable doubt. Guilty people go free all the time in America, because our system is based on the belief that it’s better for the guilty to be released than for the innocent to be condemned.
Any standard approaching our rights as American citizens creates an impossible task for our military. You can’t preserve evidence and make an airtight case or eliminate reasonable doubt about what happened on foreign battlefields.
We capture and hold terrorists all the time with evidence that wouldn’t hold up under the rigorous standards of an American court. You can’t win a war in a courtroom.
When Boumediene came down, then-candidate Obama praised it as a perfect display of America upholding its highest promises. Now he’s faced with the consequences of that decision, where people that our military knows are dangerous terrorists are released because we can’t prove it in court.
Obama has been quiet over this detainee’s release, maybe because he’s boxed himself in and can’t complain at this point. He can’t praise the Boumediene decision as exemplifying America’s best ideals, and then object when a federal judge follows the Boumediene decision. Either his grandiloquent praise of the Supreme Court’s decision was insincere and driven by far-left politics, or he’d be crying crocodile tears over this district court’s grant of habeas relief.
Even so, President Obama should have appealed this ruling to the D.C. Circuit appeals court. As commander-in-chief he owes it to our troops to support them against this terrorist. Instead Obama chose to give up the fight.
It’s a good thing that our troops don’t surrender as quickly as Barack Obama.