NRO February 18, 2014 by John Yoo and Robert Delahunty
Chalk up yet one more legal fiasco to Attorney General Eric Holder. Apart from failing to enforce Obamacare, immigration, and the drug laws, the administration continues to endanger national security with its catch-and-release approach to terrorists. In a preview of the consequences of its plans to close Guantanamo Bay, the Obama Justice department (DOJ) is starting to apprehend terrorists abroad and free them at home.
The story begins with the 2011 arrest of Ali Mohamed Ali, who took part in the pirate attack on a Danish vessel, the CEC Future, off the northern coast of Somalia three years earlier. Ali acted as a translator for the pirates and communicated their demands to the vessel’s owner, Clipper Group...
Out of options, Holder began the sad comedy of errors by bringing Ali back to the United States. Consistent with Holder’s preferred policy of trying suspected terrorists in ordinary civil courts inside the United States, rather than before military commissions, federal prosecutors put Ali on trial in a federal district court in Washington, D.C. The most important charge against him was piracy, which on conviction carries a mandatory life sentence. Lesser charges included hostage taking.
Prosecutors compounded Holder’s basic mistake by failing last November to persuade the jury to convict Ali. Obama’s DOJ then brought its bungling to new heights by deciding to drop the remaining charges against Ali. Having gotten a read on the men across the table, Ali has called the administration and now raised it — by applying for permanent [Sic. There is no such thing as permanent asylum, only asylum. Ed.] asylum in the United States. The chances are excellent that Ali will remain inside the United States for a prolonged stay or even the rest of his life.
The strategy is related to the indictment of another Gitmo detainee in New York, Ahmed Khalfan Ghailani. The scenerio will probably play out like this. A number of detainees will be indicted, but the goal will not to gain a conviction or perhaps to just gain a minor conviction. A reliable judge will then determine, as in the the case of the Kangaroo Taliban, David Hicks. In Hicks' case he was released immediately after sentencing because he was given credit for the time he was detained as a prisoner of war, albiet an unlawful combatant.
It appears the Hicks pattern will be the master plan for Obama. Bring several detainees to the U.S., indict numerous detainees on either major charges and offer only a half-hearted prosecution hoping for dismissal by a reliably liberal judge and then not appeal that action. Or, indict on minor charges, hoping for a conviction, then allow the court to use time served at Gitmo as a part of any sentence.
Then, with the detainees in the U.S. with either dismissed charges or minor convictions, and no way of deporting them to their home countries, then, after six months of detention in the custody of the Department of Homeland Security, they must be released under precedent Supreme Court decision, the horrible St. Cyr decision.
And it has come to be fulfilled. I warned you. All I can say to Yoo and Delahunty is welcome to the party, pal.