No surprise that the lawyer for an American accused of going to Pakistan to enlist with the Taliban would demand that Jews be barred from his federal jury. Nor are we surprised by the Obama administration’s decision to try Osama bin Laden’s son-in-law in federal court in New York rather than put him before a military commission.
By their nature, these trials can easily become circuses. It’s one reason we prefer military commissions where possible. Commissions are both more secure and less open to terrorists’ manipulating their trials to advance their war on the US by forcing our government to make public crucial intelligence.
In the case of Abdel Hameed Shehadeh, the Staten Island native who lost his bid to banish Jews from his jury, it would be a stretch to try him as an enemy combatant before a military commission. That’s not because he’s a US citizen, but because he was captured before he could enlist.
The same is not true of bin Laden’s son-in-law, Sulaiman Abu Ghaith, who’ll be tried in federal court in Manhattan for conspiring to kill Americans.
You’d have thought that the administration would’ve learned from its experience with Khalid Sheik Mohammed. In 2010, Attorney General Eric Holder had to back down from his decision to try the 9/11 mastermind in New York after a public outcry. But here they are, trying again.
That’s unwise on its own terms. But it is just one symptom of a much larger confusion of this administration. That confusion stems from President Obama’s habit of undermining his own war policies by cutting them to fit his politics.
Drone attacks on American combatants overseas, for example, are perfectly defensible as a war measure — but become far more complicated when we’re in law-enforcement mode.
Killing rather than capturing (and interrogating) terrorists can be a legitimate choice in war — but it becomes dangerous if done because a political stance (e.g., closing Gitmo) means we have to kill terrorists because we have no place to put them.
And though intervention in Libya was right, surely it’s hard to swallow the legal justification that the War Powers Resolution didn’t apply because there was no war.
Which points to the one question linking all these issues: Are we at war, or aren’t we?