Bring terrorists to America for trial in civilian courts — what could possibly go wrong? Well, if you want a glimpse into the future, consider what happened when the Obama administration brought a Somali pirate to America to stand trial in a civilian court.
Just a few weeks ago, Ali Mohamed Ali was facing the possibility of a mandatory life sentence in a 2008 shipjacking off the coast of Yemen — an incident much like the one dramatized in the film “Captain Phillips.” Now, the Somali native is in immigration detention in Virginia and seeking permanent asylum in the United States.
Ali, who was accused of piracy for acting as a translator and negotiator for a crew of pirates, was partially acquitted by a jury in November after a trial in Washington. Prosecutors initially vowed a retrial but decided last month to drop the rest of the case against him.
The result may be that Ali is now freed to live among us. The story continues:
That’s just the kind of situation that opponents of U.S. criminal trials for Al Qaeda suspects caught abroad have long feared: The government falls short at trial — and the courts eventually order an accused terror figure freed to live legally among Americans….
One current federal terrorism prosecutor said the Ali case and the potential for his eventual release is another reason why foreign Al Qaeda suspects picked up overseas should not be brought to the United States but should instead be detained at Guantánamo or some other facility.
“It’s a significant risk … to say, ‘Oh well, we’ll just turn him over to the immigration service’” if a criminal case falls apart, said the prosecutor, who asked not to be named because he was not authorized to speak publicly. “You can’t count on the justice system working out just the way you want it to.”
Of course, the Obama administration says that could not possibly happen. When Attorney General Eric Holder was pressing for the trial of 9/11 mastermind KSM in New York he declared, “I would not have authorized the prosecution of these cases unless I was confident that our outcome would be a successful one.”
But that is also what they said about Ahmed Ghailani – an al Qaeda terrorist who was charged with 285 counts in the bombings of our embassies in Kenya and Tanzania. When his civilian trial ended, he was acquitted on 284 counts, convicted only of one single count for “destruction of government property.”
What would have happened if he had been acquitted of all 285 counts? Perhaps the government could have continued to detain him anyway as an enemy combatant, citing the Authorization for the Use of Military Force. But Obama has said in his speech at the National Defense University last year that he wants to repeal the AUMF:
The AUMF is now nearly 12 years old. The Afghan war is coming to an end. Core al Qaeda is a shell of its former self…. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate…. [T]his war, like all wars, must end.
Even if the AUMF remains in force, continuing to detain an acquitted terrorist would be politically problematic for this president. Moreover, at that point, it is no longer a decision for the president alone. At that point, a federal judge will have a say in the matter, and (depending on the judge) might very well rule that the administration cannot continue to hold the terrorist under the laws of war.
In which case, we could find ourselves with al Qaeda terrorists in the same position as a Somali pirate is today: seeking permanent asylum in the United States.