I have pointed out for many years that civil liberties groups have been disingenuous in suggesting that every individual detained or turned over to the U.S. military in Afghanistan in 2001/2002 could and should have been prosecuted in federal court, or else released. As Ben explains, and as I have explained before, federal criminal law did not apply to the activities of most of these non-U.S. nationals outside the United States, and the U.S. military was not engaged in federal evidence collection when the individuals were detained. This is one reason why the Obama Administration reluctantly decided to retain military commissions in 2009. I wish civil liberties groups would finally put ideology and their distaste for the Bush Administration aside and concede that federal courts could not have been used to prosecute many of the detainees in Guantanamo. Do they really think that Taliban military commanders (who were released earlier this month) should have been prosecuted under federal criminal law in federal court, or otherwise released? Seriously?
At the same time, however, Congressional Republicans also need to put politics aside. They need to recognize that the post 9-11 military commissions have not been a smashing success for the United States. The commissions’ jurisdiction continues to be subject to serious legal challenge, and military commission judges have often been forced to exercise great leniency in order to demonstrate they are not kangaroo courts. Yes, they are necessary and appropriate for certain legacy trials of persons detained in 2001/2002, and they might be appropriate in certain future cases, but they are not necessary or appropriate for prosecutions of terror suspects who -- like Ahmed Abu Khattala -- have clearly violated federal criminal laws and who are captured after a lengthy criminal investigation and careful collection of evidence by the FBI.