T here there would never be justice for Americans killed in the war of the Benghazi attack. The jihadist attack on the eleventh anniversary of the atrocities of September 11 was too linked to the policy of the 2012 presidential election. In addition, the prosecution of the lone accused accused in the attack was the product of the progressive ideological insistence that the acts of War can be degraded to simple criminal offense, awarded with all due process restrictions that imply.
This bull presumption is a fiction, and therefore the experiment is a failure.
It is not my intention to make a competitive affirmation of "I told you so" that Ahmed Abu Khatallah should have been designated enemy combatant and sent to military detention and trial. Yesterday, after an eight-week trial in a federal civil court in Washington, Khatallah was acquitted of the most important charges against him, the charges that arose from the murders of US Ambbadador J. Christopher Stephens, the employee of the State Department Sean Smith and the CIA security contractors Glen Doherty and Tyrone Woods. Despite these 14 acquittals, he was convicted on four charges related to material support for terrorism, the destruction of property and the use of firearms during a violent crime. There is no reason to believe that the result would have been more just, or even that we still had a result, if the case had been badigned to the existing military commission system, which was deeply flawed.
Instead, by postulating two points, I want to reiterate a plea that we stop playing with fire and move beyond the "military v. Civil" debate – Is it a war or is it a crime? – which has undermined US counterterrorism for 16 years.
Point one: the identification of our enemy during the war must be done with more precision, which means that the Authorization for the use of military force (AUMF) under which we have been operating since October 2001 urgently needs a replacement . It is the AUMF that determines who can be considered an illegal enemy combatant. Only illegal enemy combatants can be detained, interrogated and prosecuted outside the civil justice system. It is unclear whether the AUMF would have supported the designation of Khatallah as an enemy combatant, despite his murderous jihadist attack on US government facilities. UU Part of that is due to the way the Obama administration distorted Al Qaeda, but another part is the growing obsolescence of the AUMF.
At present, many or all of the jihadist organizations that we faced did not even exist when the AUMF was enacted (although most carry the DNA of al-Qaeda, since that network existed 16 years ago). The problem has been obvious for a long time, even if we remain deliberately blind: our enemy is not a particular jihadist network; es sharia-supremacist ideology extracted from a fundamentalist interpretation of Islam, which engenders virulent anti-American and anti-Western jihadist factions. The factions come and go, their names change over time: al-Qaeda, ISIS, Ansar al-Sharia, al-Shabaab, al-Qaeda in the Islamic Maghreb or the Arabian Peninsula, and so on. The constant is the ideology. It is what catalyzes the jihadists and unifies their forces in constant evolution.
We need an enemy designation that is based on ideology and puts all these conformed groups within reach. The current AUMF, on the other hand, is circumscribed by a long-standing event (9/11) and the entities (whether terrorist organizations or nations) that were accomplices of it.
We are in a second decade of philosophical partisan argument on this subject. It has not taken us anywhere.
Item two: To repeat what I have been arguing for more than a dozen years, we need a national security court. For the time being, we have two models for prosecuting enemy terrorist fighters: the civil justice system and the military commission system. None of them is a good option. Khatallah's case highlights the incurable deficiencies of civil prosecution for acts of war that occur outside of US jurisdiction, as did the 2010 trial of Ahmed Ghailani, who was acquitted of 284 of the 285 terrorism charges for his participation in the al-Qaeda attacks in 1988 US embbadies in East Africa. However, the military justice system is also inadequate to address a non-traditional enemy that intersects between the civilian sphere and combat operations.
We are in a second decade of partisan philosophical arguments on this subject. It has not taken us anywhere.
Progressives fantasize that all national security challenges can be resolved by diplomatic demands and tactics, fallaciously reasoning that since a conflict may not have a military solution, the solution should not have a military component. They insist that the civil justice system "works" for terrorism because comparatively few terrorists who are prosecuted are condemned for at least something, even Ghailani, with his hundreds of acquittals, received a life sentence for the only charge of condemnation, and a fate awaits Khatallah. But apologists for due process know that most terrorists can not even be apprehended, much less proven in our judicial system. Most terrorist plans and attacks occur in dangerous territories where our research agencies do not operate and the mandate of our courts does not work.
Dozens of terrorists were involved in the Benghazi attack. However, only two have been captured in the following five years: Khatallah and Mustafa al-Imam, who recently appeared before the federal district court in Washington after being captured in Libya. The probability of many more detentions is zero. The investigations and arrests in these cases are based on foreign intelligence that often can not be presented to the courts, and on foreign sources that must be rewarded for their cooperation in ways that would never happen in the ordinary prosecutions of the US. UU In fact, a major problem in Khatallah's trial was an easily discredited informant because our government paid $ 7 million for his badistance.
In addition, a military battlefield abroad is evidently not a domestic crime scene. Case example, once again, the Khatallah trial: unable to secure the Benghazi compounds from the jihadist militias, and angry with the Obama administration for fraudulently claiming that the attack was instigated by an anti-Muslim video, what happens for the Libyan authorities is It delayed for three weeks the FBI's access to the relevant sites for a short brief forensic examination. This delay fatally compromised the integrity of the physical evidence. As my friend Cliff May has joked, we are not filming an episode of "CSI Kandahar" here. When civil due process protocols are applied but the demands of a war zone corrupt recovery and prosecution of evidence by the FBI, cases are easily dismantled by competent defense attorneys.
These problems, it should be noted, are separate and apart from the main challenge: it is impossible to prove terrorists under civil due process protocols without providing them with a generous discovery of the government's intelligence files. This means that we are telling the enemy what we know about the enemy while the enemy is still planning to attack Americans and US interests. That's crazy.
The disadvantages of the patent of treating international terrorism as a matter of law enforcement are the reasons why critics, myself included, are confident that a change to the military prosecution of enemy combatants would improve things: more protection of intelligence and due process limited by the laws and customs of war. We were wrong. The experiment has been a bleak failure. To catalog all the delays, the false starts and the misadventures of the military commission system would take another column or three. Suffice it to say that it was unfair and unrealistic to ask our armed forces to design a legal system on the march, even as they fought in a complex war in which, unlike the previous American wars, swathes of the American legal profession backed the enemy , volunteering. they represent the belligerent jihadists in the challenges to military detention and prosecution.
The disadvantages of the patent of treating international terrorism as a matter of law enforcement are the reasons why critics hoped that a change to the military prosecution of enemy combatants would improve things.
Even if the military system had performed adequately, it is not clear whether Khatallah could have been legally prosecuted there. This goes back to the politics of the 2012 elections and the outdated AUMF.
As relates the incomparable Tom Joscelyn, Khatallah was a member of a Libyan jihadist militia, Ubaidah ibn al-Jarrah, which was absorbed by Ansar al-Sharia (AAS) after overthrowing Gaddafi. In Libya, AAS has factions in Derna and Benghazi that have close ties to al-Qaeda. (The head of AAS-Derna, Suffian bin Qumi, was an al-Qaeda agent before being detained for a while in Guantanamo Bay). The two AAS chapters, along with three other tentacles of al-Qaeda that emerged in the post-9/11 years (al-Qaeda in the Islamic Maghreb, al-Qaeda in the Arabian Peninsula and the Mohammad Jamal network), conspired in the attack of Benghazi.
This attack and its aftermath, including the capture of Khatallah, occurred in the context of President Obama's preposterous claim that al-Qaeda had been "decimated." This political narrative, backed by our politicized intelligence community, argued that the badbadination of Osama bin Laden was the death knell of the terrorist network. ISIS ("the JV team") was just emerging, and the remaining components of al-Qaeda were represented as gangs of disorganized neighborhoods animated by local disputes. We must believe that a transcontinental network that pursues global jihadist aspirations was a thing of the past (just as Russia was no longer a geopolitical enemy and Iran was no longer seriously interested in the "death of the United States"). To summarize the story: The Al Qaeda of September 11 no longer existed.
That's more of a problem when the AUMF that describes the enemy we're still fighting with is based on al-Qaeda on September 11th.
In Obama's airy universe, al-Qaeda was not a factor in the Benghazi attack. . . in spite of that, as I have related, the successor of Bin Laden, Ayman al-Zawahiri, who sought to avenge a Libyan leader of Al Qaeda killed by US forces, had called for attacks against the Americans. Therefore, al-Qaeda was not mentioned in the indictment against Khatallah. Prosecutors defined him as a commander on the site during the attack. But as Obama sought to wipe al-Qaeda from the public's mind – instead of emphasizing how al-Qaeda raised the Libyan factions by persisting in the anti-American jihad – it was not clear to the jury exactly what Khatallah was supposed to be commander.
Again, that does not mean that the military indictment would have settled things. If we were to pretend that al-Qaeda of September 11 no longer exists (instead of having been transformed), what would have been the justification for treating Khatallah as an enemy combatant covered by the AUMF centered on al-Qaeda?
We need to review how we do this.
The jury's verdict is not rational: Khatallah was found guilty of conspiring to provide material support to the terrorism that resulted in deaths, however, he was acquitted of causing these deaths – acquitted of murder US officials in the course of attacks on facilities federal. However, the recount of support material carries a potential life imprisonment. It would not be surprising if, as in the case of Ghailani, the judge imposes a term of life. And then, naturally, the multitude that considers terrorism as a matter of law enforcement will see to it that "the system worked", despite how close the case came to a disastrous end, despite the large number of jihadists still released after killing four Americans. 19659002] We can forge a hybrid system adapted to the supremacist threat of sharia that we face: independent judges of Article III who supervise the arrest, interrogation and trial of jihadists, as well as intelligence matters, within a framework of the law of war. Or we can continue doing what we are doing. The latter should not be an option. The case of Khatallah, like that of Ghailani, should be a wake-up call that we must leave behind in the debate on military versus civil justice. It is time to combine the best of both systems.
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– Andrew C. McCarthy is a principal investigator at the National Review Institute and a contributing editor of National Review .