Yesterday Attorney General Eric Holder announced that the Obama Justice Department would appeal a U.S. District Court Judge James Robertson’s order to release 9/11 terrorist operative Mohamedou Ould Slahi.
This is a good decision by Holder. Our nation would be less safe if Slahi was released from U.S. custody. But the very need for the appeal underscores how the Obama administration’s larger approach to detainee treatment is seriously undermining our national security. Former Assistant United States Attorney for the Southern District of New York and current National Review Institute senior fellow Andrew McCarthy explains:
The courts are institutionally incompetent when it comes to matters of national security, particularly the prosecution of war.
The Framers intended it that way. National-security decisions are the most important ones a political community makes, so our system of government was designed to have them made by the political branches — by those who answer to the voters, to the people whose lives are at stake. When the political branches abdicate this first responsibility of government, sitting by as it is usurped by politically insulated judges, they deny us the freedom to decide for ourselves what our security requires. We are then the subjects of judges rather than masters of our own destiny.
Now, we’ve somehow made it the job of Judge James Robertson, a progressive civil-rights activist appointed to the bench by President Clinton in 1994. Robertson is the district judge who started it all, the first to rule — back in 2003 — that Salim Hamdan, Osama bin Laden’s personal bodyguard and driver, had Geneva Convention rights and could not be subjected to a military-commission trial. He later quit the FISA court in apparent protest over the president’s wartime effort to penetrate our enemies’ international communications without asking permission from federal judges. Now, he is ready to spring Slahi, the terrorist who set 9/11 in motion.
Mohamedou Ould Slahi and Judge Robertson are exactly why Heritage fellow Cully Stimson has been calling for the President and Congress to establish “a durable, long-term, and sustainable framework for legal detention, not just for detainees currently at Guantanamo, but for future high-value captures outside of Afghanistan.” The Judiciary is just the wrong body to be making these key national security decisions.