December 19, 2013
By Charles "Cully" Stimson
A terrorist detainee currently in U.S. custody in Afghanistan may be brought stateside for trial by military commission.
Citing unnamed administration sources, the Washington Post reports that the detainee is Taliban fighter named Hamidullan. A Russian national, he reportedly was involved in attacks that wounded or killed American service personnel in 2009 and then fought against U.S. forces in Afghanistan after 9/11.
If the Obama administration tries Hamidullan before a military commission here, this would be a significant event for a number of reasons. It would also show that, in this area at least, the administration has learned from previous mistakes.
Recall that, in a May 23 speech at National Defense University, President Obama announced he had ordered the Department of Defense to “designate a site in the United States where we can hold military commissions.”
This was a huge disappointment for those human rights groups that viscerally oppose military commissions.
They are convinced that military commissions are unworkable and unconstitutional. But for those of us who support military commissions or federal courts for rendering justice to accused terrorists, the president’s announcement was welcome news. Here’s why.
Today, the United States has no detainees in Iraq, 160 detainees in Guantanamo, and a couple dozen detainees in Afghanistan. The U.S. had other detainees in custody in Afghanistan, but turned them over to the Afghan government. We have, however, kept legal and physical control over a handful of non-Afghan, high-value terrorists, whom the administration calls “enduring security threats” (ESTs in Pentagon speak).
As the U.S. struggles with President Karzai to sign a security pact -- and as it becomes increasingly clear a pact may never materialize -- it has become all the more necessary for the administration to sort out what to do with those ESTs.
Once we’re out of Afghanistan, we certainly cannot hold those ESTs there. And since the Afghan government has no interest in keeping non-Afghan ESTs in custody, it’s all but certain that these detainees would be freed and subsequently rejoin the jihad.
Hamidullan is not the first detainee with American blood on his hands to be held on foreign soil by the U.S. In 2011, as U.S. combat operations wound down in Iraq, the Obama administration had to decide what to do with Ali Musa Daqduq, a Lebanese national and Hezbollah commander who orchestrated the brutal torture and murder of five American soldiers.
Instead of bringing him to justice in an American court, the administration transferred him to Iraqi custody. Within a year, an Iraqi court ruled there was insufficient evidence to hold Daqduq, and he was returned to Iran to join his Hezbollah brothers. Perhaps the administration has learned its lesson.
During the first two years of Mr. Obama’s presidency, when his own party controlled both House and Senate, the Congress passed laws prohibiting the administration from bringing Guantanamo detainees into the United States. Yet those prohibitions, enacted once again in this years’ National Defense Authorization Act (Section 1034), do not prohibit the administration from bringing non-Guantanamo terrorist detainees into the United States for trial.
Hamidullan must be brought to justice in an American court. We cannot afford another Daqduq fiasco. Our troops -- those killed and those currently serving -- deserve better.
Bringing Hamidullan to the United States for trial by military commission would be a most welcome sign. It would signal that the administration believes, after careful review, that he cannot be tried in an Article III federal court (their preferred venue), but that he is simply too dangerous to set free. It would also send a loud and clear message that the administration now recognizes -- albeit tardily -- that military commissions are an important tool for the commander-in-chief to have at his disposal.
- Charles “Cully” Stimson is a widely recognized expert in national security, homeland security and crime control. A senior legal fellow at The Heritage Foundation since 2007, Stimson became manager of the National Security Law Program in Heritage’s Davis Institute for International Studies in April 2013 after serving as Heritage’s chief of staff for a year.
Originally published by Fox News
Charles "Cully" Stimson
Manager, National Security Law Program and Senior Legal Fellow
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