Of all the infuriating aspects of the decision to transfer five 9/11 war criminals to civilian federal court, the one that grates most is the contention that the Obama administration is finally moving forward after “eight years of delay” — as Attorney General Eric Holder put it at his Friday press conference — during which the Bush administration managed to complete only three military-commission trials.
This is chutzpah writ large. The principal reason there were so few military trials is the tireless campaign conducted by leftist lawyers to derail military tribunals by challenging them in the courts. Many of those lawyers are now working for the Obama Justice Department. That includes Holder, whose firm, Covington & Burling, volunteered its services to at least 18 of America’s enemies in lawsuits they brought against the American people. (During 2007 alone, Covington contributed more than 3,000 hours of free, top-flight legal assistance to our enemy detainees.)
Almost from the moment President Bush authorized military commissions in 2001, this legion of litigators flooded the courts with habeas corpus petitions, contending that military detention and trials violated the Constitution, the Uniform Code of Military Justice, and the Geneva Conventions. In 2004, the al-Qaeda bar induced the Supreme Court, in Rasul v. Bush, to grant enemies a statutory habeas corpus right to challenge their military detention in civilian court. Congress tried to stop them by amending the habeas statute to divest the lower federal courts of jurisdiction in these lawsuits, but the al-Qaeda bar later persuaded the liberal bloc on the Court to ignore that amendment.
In 2006, in Hamdan
, our enemies’ lawyers persuaded the Court’s liberal bloc to invalidate the military commissions on the ground that they had been prescribed by the president rather than by Congress. This rationale was (a) disingenuous, because Congress had implicitly approved military tribunals in the 2005 Detainee Treatment Act, (b) legally untenable, inasmuch as presidentially authorized commissions have a long history in the United States, and (c) practically pointless: Since Congress already had implicitly approved the commissions, it was no surprise when it then explicitly approved the commissions in the 2006 Military Commissions Act. In terms of delay, however, the damage was done. The military commissions that had been convened up to that point — and delayed by continuous litigation — had to be started all over again under the new congressionally authorized system.
As night follows day, the al-Qaeda bar immediately went to work attacking the new commission system. Simultaneously, the terrorists’ volunteer lawyers worked to undermine Congress’s narrowing of their statutory habeas corpus rights by claiming the combatants had a constitutional right to seek civilian federal court review of their military detention. In the disastrous 2008 Boumediene v. Bush decision, the Supreme Court’s liberal bloc again went along with the leftist lawyers for the enemy. Armed with that victory, the lawyers redoubled their efforts, using the new Boumediene ruling (which only applied to detention, not to commission trials) as a basis to argue, again, that the military-commission system was invalid.
It was well into 2008 when the lower courts finally ruled that Boumediene did not invalidate the commissions. At that point, in the eleventh hour of its second term, the Bush administration was able to push ahead and get some commissions done. In the interim, however, Boumediene meant that more than 200 detainee cases were dumped on the lower federal courts with no guidance about how to proceed.