- - Wednesday, August 5, 2015

More than Hillary Clinton’s missing emails is bedeviling the legal system in the aftermath of the outrage at Benghazi. A Libyan terrorist, accused in the 2012 attack on the U.S. diplomatic compound, asked a federal judge Monday in Washington to dismiss the charges and send him home to Libya. Ahmed Abu Khattala says his capture and jailing in the United States, pending a trial, is a “government conspiracy.”

He may have a point. President Obama chose to have him kidnapped on Libyan soil and interrogated without legal counsel, then imprisoned in the United States, and granted the constitutional protections meant for Americans. Treating him as both an enemy combatant and a criminal suspect has given Abu Khattala an opening to charge government misbehavior. If the president had not schemed to close the Guantanamo Bay detention camp without regard to U.S. security, Abu Khattala would likely be a guest in the same tropical prison that is home to fellow enemy combatants, and without a legal leg to stand on.

Abu Khattala, a 40-something son of a Libyan government employee, is the purported leader of the assault on the U.S. consulate and CIA annex in Benghazi on Sept. 11, 2012, in which Ambassador J. Christopher Stevens and three other Americans died. Abu Khattala boasted of his role when a reporter for The New York Times caught up with him for an interview in Libya.

Two more years passed until the embarrassed Obama administration worked up the courage in June 2014 to order his capture, accomplished by a team of Navy SEALs and Army Delta Force commandos. He was taken aboard the USS New York off the Libyan coast and, according to his lawyers, interrogated for 13 days as the ship steamed into American waters. Rather than sending him to Guantanamo, Abu Khattala was brought to Washington and charged with 18 felonies, including murder.

Where most Americans see Islamic terrorists conducting war on the West, Mr. Obama sees mere ne’er do wells who happen to be Muslims misbehaving badly. Guantanamo Bay, in the president’s view, is not a sensible place to keep such fellows until the war ends, but a recruiting tool for the next generation of angry Muslim youth. He has whittled the number of detainees from more than 700 to 116 today. Fifty-two of those remaining have been cleared for transfer to the Middle East, and the rest are likely to be gone when the president boards Marine One and circles above downtown Washington for a last goodbye. His swap of five top Taliban commanders for the pitiful American Sgt. Bowe Bergdahl last year is proof that Mr. Obama is determined to fulfill his campaign promise to close Gitmo. Its doors are closed now to dedicated evildoers like Abu Khattala.

Enemy combatants should not eligible for the constitutional protections that U.S. law provides. Mr. Obama’s bungled prosecution of Abu Khattala is the result of his stubborn refusal to recognize war when he sees it all around him. His efforts to wish the struggle away, compounded by Mrs. Clinton’s steps to conceal the email record of the Benghazi attack, conspire to raise the likelihood of more terror, more suffering and more death to Americans.

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