Legal Issues in the War w Islamic Fascism, Epidemic, Quarantine, and Doxxing

[Crafty_Dog]

It came as good news yesterday from Attorney General Eric Holder that the government isn't going to prosecute any Central Intelligence Agency officials who participated in the government's waterboarding interrogations. Mr. Holder cited the simple logic that it would be unfair to prosecute these officials for acts ruled legal at the time by the Justice Department. Mr. Holder also pointedly said the U.S would defend the CIA interrogators against attempted prosecutions from overseas.

Mr. Holder's reference to out-of-area prosecutions is surely a reference to Spain, the source of yesterday's second piece of good news on the antiterror front. Spain's attorney general, Candido Conde-Pumpido, said his office would not support Judge Baltasar Garzon's outrageous effort to prosecute six Bush Administration officials for their role in the U.S. antiterror effort. Spain's AG said any such prosecution would turn his nation's National Court "into a plaything" for politics. Judge Garzon gets the final call, but the odds are strong this judicial overreach is ending.

What remains to be seen is whether the American left, maddened by these two decisions, will now demand that Congress gin up a "Truth Commission" to dissect the U.S. war on terror during the Bush years. This would hamstring even a gentler war on terror by the Obama team, as no official would risk being hung out to dry later by Congressional Democrats or the partisans they appoint to a commission. For elaboration on that we recommend the piece opposite by former Attorney General Michael Mukasey and former CIA director Michael Hayden.
==========================
 By MICHAEL HAYDEN and MICHAEL B. MUKASEY
The Obama administration has declassified and released opinions of the Justice Department's Office of Legal Counsel (OLC) given in 2005 and earlier that analyze the legality of interrogation techniques authorized for use by the CIA. Those techniques were applied only when expressly permitted by the director, and are described in these opinions in detail, along with their limits and the safeguards applied to them.

 
AP
9/11 mastermind Khalid Sheikh Mohammed.
The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.

Proponents of the release have argued that the techniques have been abandoned and thus there is no point in keeping them secret any longer; that they were in any event ineffective; that their disclosure was somehow legally compelled; and that they cost us more in the coin of world opinion than they were worth. None of these claims survives scrutiny.

Soon after he was sworn in, President Barack Obama signed an executive order that suspended use of these techniques and confined not only the military but all U.S. agencies -- including the CIA -- to the interrogation limits set in the Army Field Manual. This suspension was accompanied by a commitment to further study the interrogation program, and government personnel were cautioned that they could no longer rely on earlier opinions of the OLC.

Although evidence shows that the Army Field Manual, which is available online, is already used by al Qaeda for training purposes, it was certainly the president's right to suspend use of any technique. However, public disclosure of the OLC opinions, and thus of the techniques themselves, assures that terrorists are now aware of the absolute limit of what the U.S. government could do to extract information from them, and can supplement their training accordingly and thus diminish the effectiveness of these techniques as they have the ones in the Army Field Manual.

Moreover, disclosure of the details of the program pre-empts the study of the president's task force and assures that the suspension imposed by the president's executive order is effectively permanent. There would be little point in the president authorizing measures whose nature and precise limits have already been disclosed in detail to those whose resolve we hope to overcome. This conflicts with the sworn promise of the current director of the CIA, Leon Panetta, who testified in aid of securing Senate confirmation that if he thought he needed additional authority to conduct interrogation to get necessary information, he would seek it from the president. By allowing this disclosure, President Obama has tied not only his own hands but also the hands of any future administration faced with the prospect of attack.

Disclosure of the techniques is likely to be met by faux outrage, and is perfectly packaged for media consumption. It will also incur the utter contempt of our enemies. Somehow, it seems unlikely that the people who beheaded Nicholas Berg and Daniel Pearl, and have tortured and slain other American captives, are likely to be shamed into giving up violence by the news that the U.S. will no longer interrupt the sleep cycle of captured terrorists even to help elicit intelligence that could save the lives of its citizens.

Which brings us to the next of the justifications for disclosing and thus abandoning these measures: that they don't work anyway, and that those who are subjected to them will simply make up information in order to end their ordeal. This ignorant view of how interrogations are conducted is belied by both experience and common sense. If coercive interrogation had been administered to obtain confessions, one might understand the argument. Khalid Sheikh Mohammed (KSM), who organized the Sept. 11, 2001 attacks, among others, and who has boasted of having beheaded Daniel Pearl, could eventually have felt pressed to provide a false confession. But confessions aren't the point. Intelligence is. Interrogation is conducted by using such obvious approaches as asking questions whose correct answers are already known and only when truthful information is provided proceeding to what may not be known. Moreover, intelligence can be verified, correlated and used to get information from other detainees, and has been; none of this information is used in isolation.

The terrorist Abu Zubaydah (sometimes derided as a low-level operative of questionable reliability, but who was in fact close to KSM and other senior al Qaeda leaders) disclosed some information voluntarily. But he was coerced into disclosing information that led to the capture of Ramzi bin al Shibh, another of the planners of Sept. 11, who in turn disclosed information which -- when combined with what was learned from Abu Zubaydah -- helped lead to the capture of KSM and other senior terrorists, and the disruption of follow-on plots aimed at both Europe and the U.S. Details of these successes, and the methods used to obtain them, were disclosed repeatedly in more than 30 congressional briefings and hearings beginning in 2002, and open to all members of the Intelligence Committees of both Houses of Congress beginning in September 2006. Any protestation of ignorance of those details, particularly by members of those committees, is pretense.

The techniques themselves were used selectively against only a small number of hard-core prisoners who successfully resisted other forms of interrogation, and then only with the explicit authorization of the director of the CIA. Of the thousands of unlawful combatants captured by the U.S., fewer than 100 were detained and questioned in the CIA program. Of those, fewer than one-third were subjected to any of the techniques discussed in these opinions. As already disclosed by Director Hayden, as late as 2006, even with the growing success of other intelligence tools, fully half of the government's knowledge about the structure and activities of al Qaeda came from those interrogations.

Nor was there any legal reason compelling such disclosure. To be sure, the American Civil Liberties Union has sued under the Freedom of Information Act to obtain copies of these and other memoranda, but the government until now has successfully resisted such lawsuits. Even when the government disclosed that three members of al Qaeda had been subjected to waterboarding but that the technique was no longer part of the CIA interrogation program, the court sustained the government's argument that the precise details of how it was done, including limits and safeguards, could remain classified against the possibility that some future president may authorize its use. Therefore, notwithstanding the suggestion that disclosure was somehow legally compelled, there was no legal impediment to the Justice Department making the same argument even with respect to any techniques that remained in the CIA program until last January.

There is something of the self-fulfilling prophecy in the claim that our interrogation of some unlawful combatants beyond the limits set in the Army Field Manual has disgraced us before the world. Such a claim often conflates interrogation with the sadism engaged in by some soldiers at Abu Ghraib, an incident that had nothing whatever to do with intelligence gathering. The limits of the Army Field Manual are entirely appropriate for young soldiers, for the conditions in which they operate, for the detainees they routinely question, and for the kinds of tactically relevant information they pursue. Those limits are not appropriate, however, for more experienced people in controlled circumstances with high-value detainees. Indeed, the Army Field Manual was created with awareness that there was an alternative protocol for high-value detainees.

In addition, there were those who believed that the U.S. deserved what it got on Sept. 11, 2001. Such people, and many who purport to speak for world opinion, were resourceful both before and after the Sept. 11 attacks in crafting reasons to resent America's role as a superpower. Recall also that the first World Trade Center bombing in 1993, the attacks on our embassies in Kenya and Tanzania, the punctiliously correct trials of defendants in connection with those incidents, and the bombing of the USS Cole took place long before the advent of CIA interrogations, the invasion of Saddam Hussein's Iraq, or the many other purported grievances asserted over the past eight years.

The effect of this disclosure on the morale and effectiveness of many in the intelligence community is not hard to predict. Those charged with the responsibility of gathering potentially lifesaving information from unwilling captives are now told essentially that any legal opinion they get as to the lawfulness of their activity is only as durable as political fashion permits. Even with a seemingly binding opinion in hand, which future CIA operations personnel would take the risk? There would be no wink, no nod, no handshake that would convince them that legal guidance is durable. Any president who wants to apply such techniques without such a binding and durable legal opinion had better be prepared to apply them himself.

Beyond that, anyone in government who seeks an opinion from the OLC as to the propriety of any action, or who authors an opinion for the OLC, is on notice henceforth that such a request for advice, and the advice itself, is now more likely than before to be subject after the fact to public and partisan criticism. It is hard to see how that will promote candor either from those who should be encouraged to ask for advice before they act, or from those who must give it.

In his book "The Terror Presidency," Jack Goldsmith describes the phenomenon we are now experiencing, and its inevitable effect, referring to what he calls "cycles of timidity and aggression" that have weakened intelligence gathering in the past. Politicians pressure the intelligence community to push to the legal limit, and then cast accusations when aggressiveness goes out of style, thereby encouraging risk aversion, and then, as occurred in the wake of 9/11, criticizing the intelligence community for feckless timidity. He calls these cycles "a terrible problem for our national security." Indeed they are, and the precipitous release of these OLC opinions simply makes the problem worse.

Gen. Hayden was director of the Central Intelligence Agency from 2006 to 2009. Mr. Mukasey was attorney general of the United States from 2007 to 2009.

 

[Crafty_Dog]

Helen Thomas: Why is the president blocking habeas corpus from prisoners at Bagram? I thought he taught constitutional law. And these prisoners have been there . . .

Robert Gibbs: You're incorrect that he taught on constitutional law.

You know we live in interesting times when Helen Thomas is going after Barack Obama. Miss Thomas was asking the White House press secretary last week why detainees at Bagram Air Base in Afghanistan should not have the same right to challenge their detention in federal court that last year's Supreme Court ruling in Boumediene v. Bush gave to Guantanamo's detainees. All Mr. Gibbs could do was interrupt and correct the doyenne of the White House press corps about Mr. Obama's class as a law professor.

The precipitate cause of Miss Thomas's question was a ruling earlier this month by federal district Judge John Bates. Judge Bates says that last year's Supreme Court ruling on Gitmo does apply to Bagram. The administration has appealed, saying that giving detainees such rights could lead to protracted litigation, disclosure of intelligence secrets and harm to American security. The wonderful irony is that, at least on the logic, everyone is right.

Start with Judge Bates. The judge is surely correct when he says the detainees brought in to Bagram from outside the country are "virtually identical" to those held at Guantanamo. He's also correct in asserting that the Supreme Court ruled the way it did out of concern "that the Executive could move detainees physically beyond the reach of the Constitution and detain an individual" at Bagram.

But President Obama's appeal is also right. Though most headlines from the past few days have focused on the release of Justice Department memos on CIA interrogation, the president's embrace of the Bush position on Bagram is far more striking. Mr. Gibbs became tongue-tied while trying to explain that stand. But the Justice Department brief is absolutely correct in asserting that "there are many legitimate reasons, having nothing to do with the intent to evade judicial review, why the military might detain an individual in Bagram."

Finally, critics like Miss Thomas also have it right. In a long and thorough post called "Obama and habeas corpus -- then and now," Glenn Greenwald, a former constitutional law litigator who blogs at Salon.com, exposes the gaping contradiction between past Obama rhetoric on the inviolability of the right to habeas corpus and the new Obama reality. He also quotes Mr. Obama's reaction to Boumediene as a "rejection of the Bush administration's attempt to create a legal black hole at Guantanamo."

Manifestly, Mr. Greenwald believes that "black hole" is simply moving to Bagram. "I wish I could be writing paeans celebrating the restoration of the Constitution and the rule of law," he writes. "But these actions -- these contradictions between what he said and what he is doing, the embrace of the very powers that caused so much anger towards Bush/Cheney -- are so blatant, so transparent, so extreme, that the only way to avoid noticing them is to purposely shut your eyes as tightly as possible and resolve that you don't want to see it, or that you're so convinced of his intrinsic Goodness that you'll just believe that even when it seems like he's doing bad things, he must really be doing them for the Good."

How can all these people be right? The answer is that each is responding to a different contradiction raised by the president's Guantanamo policy. In an impassioned 2006 speech on the Senate floor on the right to habeas corpus, Mr. Obama declared, "I do not want to hear that this is a new world and we face a new kind of enemy." During the campaign, his language implied that all we needed to settle the detainee issue once and for all was to shut down Gitmo.

As president, he is finding out that this very much is a new world, that we do face a new enemy, and that the problems posed by Guantanamo have less to do with the place than the people we detain there.

Put simply, the U.S. needs the ability to detain people we know to be dangerous without the evidence that might stand up in a federal criminal court. Because we can't say when this war will end, moreover, we also need to be able to detain them indefinitely. This is what makes the war on terror different, and why our policies will never fit neatly into a legal approach that is either purely criminal or purely military.

The good news is that Mr. Obama is smart enough to know that the relative obscurity of Bagram, not to mention the approval he has received on Guantanamo, enables him to do the right thing here without, as Mr. Greenwald notes, worrying too much that he will be called to account for a substantive about-face.

The bad news is that we seem to have reached the point where our best hope for sensible war policy now depends largely on presidential cynicism.

[Crafty_Dog]

Yemen Dispute Slows Closing of Guantánamo
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LinkedinDiggFacebookMixxMySpaceYahoo! BuzzPermalinkBy WILLIAM GLABERSON and ROBERT F. WORTH
Published: April 23, 2009
The Obama administration’s effort to return the largest group of Guantánamo Bay detainees to Yemen, their home country, has stalled, creating a major new hurdle for the president’s plan to close the prison camp in Cuba by next January, American and Yemeni officials say.

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Canada Told to Request the Return of a Citizen at Guantánamo (April 24, 2009) “We’re at a complete impasse,” said one American official who is involved in the issue but was speaking without authorization and so requested anonymity. “I don’t know that there’s a viable Plan B.”

The Yemeni government has asked Washington to return its detainees and has said that it would need substantial aid to rehabilitate the men. But the Obama administration is increasingly skeptical of Yemen’s ability to provide adequate rehabilitation and security to supervise returned prisoners. In addition, American officials are wary of sending detainees to Yemen because of growing indications of activity by Al Qaeda there.

The developments are significant for the Obama administration because the 97 Yemeni detainees make up more than 40 percent of the remaining 241 prisoners at Guantánamo Bay. The question of what to do with them “is integral to the process of closing Guantánamo,” said Ken Gude, an associate director at the Center for American Progress who has written about closing the prison camp.

The standoff over the Yemeni detainees comes on top of other difficulties that have emerged since President Obama announced his intention to close the prison that has drawn international criticism for years.

Some Republicans in Congress have mounted stiff resistance to closing Guantánamo, and officials in some American communities, fearing that terrorism suspects could be tried or held in their courts or prisons, said they would fight any such plans. Also, while some European governments have promised to resettle detainees, specific agreements have been slow in coming.

The Yemenis not only are the biggest group of detainees, but also are widely seen as the most difficult to transfer out of Guantánamo. Other countries are wary of many of the Yemeni detainees because jihadist groups have long had deep roots in Yemen, one of the poorest countries in the Arab world and the homeland of Osama bin Laden’s father. If the Yemenis are not sent home, there may be few other options for many of the 97 men, detainees’ lawyers and human rights groups say.

Still, Muhi al-Deen al-Dhabi, Yemen’s deputy foreign affairs minister, said in an interview that the United States was now trying to persuade other countries to accept Yemeni detainees and appeared to have rejected Yemen’s request to have its citizens at Guantánamo returned.

“If the United States is going to transfer the Yemeni detainees to a third party, we cannot stop that,” Mr. Dhabi said.

Yemen’s president, Ali Abdullah Saleh, met last month with Mr. Obama’s deputy national security adviser, John O. Brennan. The State Department said Mr. Brennan raised “the U.S. government’s concerns about the direct return of detainees to Yemen.”

The Bush administration also failed to reach a deal with President Saleh, but the Obama administration had hoped to get increased cooperation from Yemen, which critics say has a history of coddling Islamic extremists and releasing convicted terrorists. Complicating the task is the fact that security in Yemen has been deteriorating for more than a year, with several terrorist attacks, including a suicide bombing outside the American Embassy compound in September that killed 13 people.

Among the 97 Yemeni detainees are some men who appear to be candidates for transfer to other countries, including about a dozen with ties to Saudi Arabia. American officials have described some of the Yemenis as jihadist foot soldiers and have suggested that a few, like a student captured while visiting other Yemenis in Pakistan, may simply have been at the wrong place at the wrong time.

Perhaps a dozen or more Yemeni detainees could face prosecution in the United States, including Ramzi bin al-Shibh, who was charged in the Bush administration’s military commission system with being a coordinator of the Sept. 11, 2001, attacks.

But with just nine months remaining before Mr. Obama’s January 2010 deadline for closing the prison, some lawyers for the men say they are becoming convinced that there may be no viable strategy to relocate them.

David H. Remes, a lawyer for 16 Yemeni detainees, said it appeared that many of the men might remain in American custody. “Unless President Obama reconsiders his decision to close Guantánamo,” Mr. Remes said, “the Yemeni detainees would have to be brought to the U.S. and put in some sort of prison.”

Although administration officials would not comment on the talks with Yemen, a senior administration official said the government was “working to ensure that any detainee who is transferred abroad will be appropriately monitored, rehabilitated, and assimilated back into their society.”

The complexities of the issues surrounding the detainees are a reflection of Yemen’s tangled domestic and international problems. It is a state that often appears on the verge of chaos. A weak central government is fighting a persistent insurgency in the north, restive separatists in the south and a growing Qaeda presence.

Some Yemeni officials say President Saleh, a wily former army officer, has used the internal threats — and perhaps even nurtured them — to press the United States and Yemen’s neighbor Saudi Arabia for more aid.

As a result, people who have discussed the detainee issues with Yemeni officials say the Obama administration’s frustration with the Yemeni government may be well founded.

Mr. Saleh has publicly demanded the return of the detainees. But Joanne Mariner, director of Human Rights Watch’s terrorism and counterterrorism program, said that after meeting top Yemeni officials, it appeared that the Saleh government seemed to see the detainees as a potential source of security and financial problems.

“Politically, they need to give the impression that they’re fighting to get their people back,” Ms. Mariner said, but she added that it was not clear whether the Yemeni officials were working to meet any American requirements.

One senior Yemeni official, she said, seemed to suggest that Yemen would require a huge payment from the American government to resettle the detainees. A proper rehabilitation program, the official claimed, could cost as much as $1 million for each detainee, totaling nearly $100 million.

In the recent interview, Mr. Dhabi, the deputy foreign affairs minister, did not mention a price tag. But he said that creating a rehabilitation program would be “long, costly and would require cooperation.” He said the Americans were “disappointed” to hear that.

Every option for the Yemenis at Guantánamo seems to have its roadblocks. There have long been reports that many Yemeni detainees may go to Saudi Arabia’s rehabilitation program for former jihadists. That program has been widely praised in the Middle East, despite recent disclosures that some graduates who are former Guantánamo detainees have returned to terrorism.

But the Saudis have noted that Yemen demands that its citizens be sent home, and a high-level Saudi official said his country would not take any of the detainees unless Yemen asked it to.

William Glaberson reported from New York, and Robert F. Worth from Beirut, Lebanon. Margot Williams contributed reporting from New York.

[ccp]

"Reality bites BO in butt again"

The only ones being bitten in the butt are the American people.

BO is already getting the rave reviews for his "first 100 days" in the MSM.

Of course Carville gives him an A- but when Ed Rollins gives him a B.........

BO is comfortable doing the "triangulation" thing with the purported "torture" (non) issue letting the legislatures deal with the prosecutions while he sits back and pretends he is above it all.  All he did was selectively release information so his blood hounds in the House/Senate can do the dirty work.  Recall Pelosi's statement that they will "cover his back".

It is all pay back time for the independent counsel that went after Clinton and the subsequent impeachment.

[Crafty_Dog]

WASHINGTON (AP) - House Democrats are refusing to pay for President Barack Obama's plan to relocate prisoners from the Guantanamo detention facility where enemy combatants are being held.

Obama has signed an executive order to close the facility at Guantanamo Bay, Cuba, by early next year. But the Pentagon has yet to come up with a plan on where to put the 240 or so prisoners. Between 50-100 are likely to be sent to the United States.

No lawmaker wants the accused terrorists in their backyard.  House Democrats unveiled a $94.4 billion war funding bill Monday and it had no money for the relocation plan.  The step is not likely to be the last word, however. If needed, money could be transferred later—without a politically difficult vote.

Copyright 2009 The Associated Press.

[JDN]

Ah, the bane of the liberals; NIMBY.

[Crafty_Dog]

  Well, this could be interesting.  Our GM and Yale Law Review on the same side?!?

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1389511

[Crafty_Dog]

second post of the morning

On his second day in office, President Obama ordered the Pentagon to mothball Guantanamo within one year, purportedly to reclaim the "moral high ground." That earned applause from the anti-antiterror squadrons, yet it is now causing all kinds of practical and political problems in what used to be known as the war on terror.

 
AP
 This mess grew even more chaotic this week, when Democrats refused the Administration's $50 million budget request to transfer some of the remaining 241 Gitmo detainees to a prison likely to be somewhere in the U.S. and perhaps to a new one built with taxpayer dollars. "What do we do with the 50 to 100 -- probably in that ballpark -- who we cannot release and cannot try?" Defense Secretary Robert Gates recently asked Congress.

The best answer is Gitmo. But the antiwar left wants terrorists treated like garden-variety criminals in the civilian courts or maybe military courts martial. The not-so-minor problem is that even states that send leftists to Congress don't want to host Gitmo-II. Think California, where Alcatraz could be an option. The abandoned San Francisco Bay prison has Gitmo's virtue of relative isolation -- but Senator Dianne Feinstein, the chairman of the Intelligence Committee, claims it is a national treasure. The terrorist-next-door problem is also rising to a high boil in Kansas politics, given that Fort Leavenworth is being eyed too.

More urgently, the Administration risks losing all control once enemy combatants set foot on formal U.S. soil, which the courts could determine entitles the terrorists to the same Constitutional protections as U.S. citizens. One federal judge has already ordered that 17 detainees -- the Uighurs, a Chinese ethnic minority -- be released domestically. Another judge has ruled that the Supreme Court's 5-4 Boumediene decision, which granted detainees the right to file habeas petitions in U.S. courts, extends to Bagram Air Base in Afghanistan, where the military is holding three times as many prisoners as Guantanamo.

In his Boumediene dissent, Chief Justice John Roberts indicted the majority's "set of shapeless procedures to be defined by federal courts at some future date," and was he ever right. How will judges prevent the public disclosure of classified material? What about Miranda rights, or evidence obtained under battlefield conditions?

Such questions nearly scuttled the Justice Department's case against Ali Saleh Kahlah al-Marri, which flamed out last week with a sentence of only 15 years. According to the plea agreement, al-Marri entered the U.S. on September 10, 2001 on orders from Khalid Sheikh Mohammed to begin research on chemical weapons and potential targets. Prosecutors were hampered by the possibility of disclosing intelligence sources and methods, as well as (yet another) political flare-up about interrogation and detention.

For these reasons and more, the Obama Administration has done a 180-degree turn on George W. Bush's military commissions. Mr. Obama called this meticulous legal process "an enormous failure" during his campaign and suspended it when he cashiered Gitmo, but now Mr. Gates says it is "still very much on the table." The Administration may soon announce that it will be reactivated, with a few torques to the rules of secrecy and evidence to attempt to appease the human-rights lobby.

The hardest Gitmo cases are those prisoners who are known to be dangerous or were actively involved in terror networks but haven't committed crimes per se. Others involve evidence that is insufficient for successful prosecutions but sufficient enough to determine that release or transfer would pose a grave security risk. Many of these detainees are Yemeni, and the Yemeni government is demanding that Washington repatriate them.

That would be an unmitigated disaster, whatever Yemen's promises of rehabilitation. Director of National Intelligence Dennis Blair recently reported that Yemen "is re-emerging as a jihadist battleground and potential regional base of operations for al Qaeda to plan internal and external attacks, train terrorists and facilitate the movement of operatives."

Terror groups have conducted some 20 attacks on U.S. or Western targets in Yemen, the most recent in September against the U.S. embassy, which killed six guards and four civilians. The recidivism rate of those detainees who the military has judged to be good candidates for release from Gitmo is already high, and the danger for the 90 or so Yemenis and others ought to be unacceptable.

Which brings us back to Gitmo's new location, if it ever gets one. Since 1987, the political system has been deadlocked over burying a negligible amount of nuclear waste deep within a remote mountain in Nevada, so it's hard to imagine how it will deal with a terrorist problem that is far more -- how to put it? -- radioactive. Safe to say that any new setting will not be in a 2012 swing state, and you don't have to be a cynic to wonder if it will have two Republican Senators. Mr. Obama could have avoided this mess had he kept his Gitmo options open, but to adapt a famous phrase, the President broke Guantanamo so now he owns the inmates.

[Crafty_Dog]

By DEBRA BURLINGAME
In February I was among a group of USS Cole and 9/11 victims' families who met with the president at the White House to discuss his policies regarding Guantanamo detainees. Although many of us strongly opposed Barack Obama's decision to close the detention center and suspend all military commissions, the families of the 17 sailors killed in the 2000 attack in Yemen were particularly outraged.


Over the years, the Cole families have seen justice abandoned by the Clinton administration and overshadowed by the need of the Bush administration to gather intelligence after 9/11. They have watched in frustration as the president of Yemen refused extradition for the Cole bombers.

Now, after more than eight years of waiting, Mr. Obama was stopping the trial of Abu Rahim al-Nashiri, the only individual to be held accountable for the bombing in a U.S. court. Patience finally gave out. The families were giving angry interviews, slamming the new president just days after he was sworn in.

The Obama team quickly put together a meeting at the White House to get the situation under control. Individuals representing "a diversity of views" were invited to attend and express their concerns.

On Feb. 6, the president arrived in the Roosevelt Room to a standing though subdued ovation from some 40 family members. With a White House photographer in his wake, Mr. Obama greeted family members one at a time and offered brief remarks that were full of platitudes ("you are the conscience of the country," "my highest duty as president is to protect the American people," "we will seek swift and certain justice"). Glossing over the legal complexities, he gave a vague summary of the detainee cases and why he chose to suspend them, focusing mostly on the need for speed and finality.

Many family members pressed for Guantanamo to remain open and for the military commissions to go forward. Mr. Obama allowed that the detention center had been unfairly confused with Abu Ghraib, but when asked why he wouldn't rehabilitate its image rather than shut it down, he silently shrugged. Next question.

Mr. Obama was urged to consult with prosecutors who have actually tried terrorism cases and warned that bringing unlawful combatants into the federal courts would mean giving our enemies classified intelligence -- as occurred in the cases of the al Qaeda cell that carried out the 1993 World Trade Center bombing and conspired to bomb New York City landmarks with ringleader Omar Abdel Rahman, the "Blind Sheikh." In the Rahman case, a list of 200 unindicted co-conspirators given to the defense -- they were entitled to information material to their defense -- was in Osama bin Laden's hands within hours. It told al Qaeda who among them was known to us, and who wasn't.

Mr. Obama responded flatly, "I'm the one who sees that intelligence. I don't want them to have it, either. We don't have to give it to them."

How could anyone be unhappy with such an answer? Or so churlish as to ask follow-up questions in such a forum? I and others were reassured, if cautiously so.

News reports described the meeting as a touching and powerful coming together of the president and these long-suffering families. Mr. Obama had won over even those who opposed his decision to close Gitmo by assuaging their fears that the review of some 245 current detainees would result in dangerous jihadists being set free. "I did not vote for the man, but the way he talks to you, you can't help but believe in him," said John Clodfelter to the New York Times. His son, Kenneth, was killed in the Cole bombing. "[Mr. Obama] left me with a very positive feeling that he's going to get this done right."

"This isn't goodbye," said the president, signing autographs and posing for pictures before leaving for his next appointment, "this is hello." His national security staff would have an open-door policy.

Believe . . . feel . . . hope.

We'd been had.

Binyam Mohamed -- the al Qaeda operative selected by Khalid Sheikh Mohammed (KSM) for a catastrophic post-9/11 attack with co-conspirator Jose Padilla -- was released 17 days later. In a follow-up conference call, the White House liaison to 9/11 and Cole families refused to answer questions about the circumstances surrounding the decision to repatriate Mohamed, including whether he would be freed in Great Britain.

The phrase "swift and certain justice" had been used by top presidential adviser David Axelrod in an interview prior to our meeting with the president. "Swift and certain justice" figured prominently in the White House press release issued before we had time to surrender our White House security passes. "At best, he manipulated the families," Kirk Lippold, commanding officer of the USS Cole at the time of the attack and the leader of the Cole families group, told me recently. "At worst, he misrepresented his true intentions."

Last week, Attorney General Eric Holder told German reporters that 30 detainees had been cleared for release. This includes 17 Chinese fundamentalist Muslims, the Uighurs, some of whom admit to having been trained in al Qaeda and Taliban camps and being associated with the East Turkistan Islamic Party. This party is led by Abdul Haq, who threatened attacks on the 2008 Olympics Games in Beijing and was recently added to the Treasury Department's terrorist list. The Obama administration is considering releasing the Uighurs on U.S. soil, and it has suggested that taxpayers may have to provide them with welfare support. In a Senate hearing yesterday, Mr. Holder sidestepped lawmakers' questions about releasing detainees into the U.S. who have received terrorist training.

What about the terrorists who may actually be tried? The Justice Department's recent plea agreement with Ali Saleh al-Marri should be of grave concern to those who believe the Obama administration will vigorously prosecute terrorists in the federal court system.

Al-Marri was sent to the U.S. on Sept. 10, 2001, by KSM to carry out cyanide bomb attacks. He pled guilty to one count of "material support," a charge reserved for facilitators rather than hard-core terrorists. He faces up to a 15-year sentence, but will be allowed to argue that the sentence should be satisfied by the seven years he has been in custody. This is the kind of thin "rule of law" victory that will invigorate rather than deter our enemies.

Given all the developments since our meeting with the president, it is now evident that his words to us bore no relation to his intended actions on national security policy and detainee issues. But the narrative about Mr. Obama's successful meeting with 9/11 and Cole families has been written, and the press has moved on.

The Obama team has established a pattern that should be plain for all to see. When controversy erupts or legitimate policy differences are presented by well-meaning people, send out the celebrity president to flatter and charm.

Most recently, Mr. Obama appeared at the CIA after demoralizing the agency with the declassification and release of memos containing sensitive information on CIA interrogations. He appealed to moral vanity by saying that fighting a war against fanatic barbarians "with one hand tied behind your back" is being on "the better side of history," even though innocent lives are put at risk. He promised the assembled staff and analysts that if they keep applying themselves, they won't be personally marked for career-destroying sanctions or criminal prosecutions, even as disbelieving counterterrorism professionals -- the field operatives and their foreign partners -- shut down critical operations for fear of public disclosure and political retribution in the never-ending Beltway soap opera called Capitol Hill.

It worked: On television, his speech looked like a campaign rally, with people jumping up and down, cheering. Meanwhile, the media have moved on, even as they continue to recklessly and irresponsibly use the word "torture" in their stories.

I asked Cmdr. Kirk Lippold why some of the Cole families declined the invitation to meet with Barack Obama at the White House.

"They saw it for what it was."

Ms. Burlingame, a former attorney and a director of the National September 11 Memorial Foundation, is the sister of Charles F. "Chic" Burlingame III, the pilot of American Airlines flight 77, which was crashed into the Pentagon on Sept. 11, 2001.

[Crafty_Dog]

Second post of day:

Contractor pleads guilty to Taliban shooting

By Matthew Barakat - The Associated Press
Posted : Wednesday Feb 4, 2009 16:34:47 EST

ALEXANDRIA, Va. — An Army contractor is facing up to 15 years in prison after pleading guilty to manslaughter in the shooting death of a handcuffed Taliban member who had just set one of the contractor’s colleagues on fire.

Don M. Ayala, 46, of New Orleans struck a plea bargain Tuesday in federal court in Alexandria, avoiding murder charges that could have resulted in life in prison.

Ayala provided security on what the Army calls a Human Terrain Team, in which social scientists and anthropologists are embedded with combat brigades to help soldiers understand local culture.

On Nov. 4, Ayala and two other team members were on a walking patrol about 80 miles west of Kandahar, in a village called Chehel Gazi. Team member Paula Loyd was distributing candy to villagers and talking about gas prices with an Afghan man, Abdul Salam, when he lit a pitcher of fuel on fire and threw it on her.

According to court documents, Ayala helped arrest and subdue Salam, who was then placed in plastic restraints. Ayala kept a pistol pointed at Salam’s head as he continued to resist arrest.

After a few minutes, when Ayala learned how badly Loyd had been burned, Ayala shot Salam in the head, killing him instantly.

The Taliban claimed responsibility for the attack on Loyd, 36, who suffered second- and third-degree burns over 60 percent of her body and died from her injuries last month at an Army hospital in San Antonio.

Ayala’s case had been the first case in which federal prosecutors brought murder charges against a military contractor serving in Iraq or Afghanistan under the Military Extraterritorial Jurisdiction Act, the 2000 law that allows such prosecutions.

Ayala was employed by Strategic Analysis, Inc., an Arlington company working as a subcontractor for BAE Systems, which has its U.S. Headquarters in Rockville, Md.  Strategic Analysis did not immediately return a phone call Wednesday seeking comment.  Ayala had previously worked for contractors providing personal security for Afghan President Hamid Karzai and Iraqi Prime Minister Nouri al-Maliki.

Ayala is scheduled for sentencing on May 8.
==================

KABUL (Reuters) - A U.S. civilian shot dead an Afghan civilian who tried to set fire to another American on Tuesday, the U.S. military said.

At least 4,000 people have been killed in Afghanistan this year, some 1,000 of them civilians. It is still rare though for foreign civilians to be directly engaged in the conflict.

The shooting occurred after an altercation, a U.S. military statement said.

"Reports indicate the local national was shot after pouring and igniting a flammable liquid on another U.S. civilian. The civilian sustained serious burns and was transported to the nearest coalition forces medical facility for treatment," it said.

Taliban insurgents said children had poured petrol on a female foreign soldier and set fire to her while she was searching homes in the town of Maiwand in the southern province of Kandahar.

"The soldier caught fire immediately after petrol was poured on her and then explosions were set off because of the ammunition on her," the Taliban said on their Web site.

"As a result the female soldier was killed instantly and a large number of other foreign soldiers were wounded," it said.

It was not possible to verify the conflicting reports, but the Taliban frequently exaggerate foreign troop casualties.

(Writing by Jon Hemming; Editing by David Fox)

[DougMacG]

From WSJ - Crafty's post, Debra Burlingame,sister of Charles Burlingame, pilot of the flight that was crashed into the Pentagon on Sept. 11, 2001:

"bringing unlawful combatants into the federal courts would mean giving our enemies classified intelligence -- as occurred in the cases of the al Qaeda cell that carried out the 1993 World Trade Center bombing and conspired to bomb New York City landmarks with ringleader Omar Abdel Rahman, the "Blind Sheikh." In the Rahman case, a list of 200 unindicted co-conspirators given to the defense -- they were entitled to information material to their defense -- was in Osama bin Laden's hands within hours. It told al Qaeda who among them was known to us, and who wasn't."
---

What a powerful, specific example in the argument about why NOT to criminalize terrorism or bring court prosecutions of enemy combatants in times of war.  Defendants in courts receive rights including the right to see the evidence against them, which creates a motive to commit more acts of terror, get caught, expose our intelligence - information, people and methods - and sabotage our security.

[Crafty_Dog]

What a _________________!!! 

Pelosi: I Was Told Interrogation Methods Were Lawful

The House speaker's statement came after CIA records showed Pelosi was briefed in September 2002 on the interrogation methods and appeared to contradict her claim last month that she was never told that waterboarding or other enhanced interrogation techniques were being used.

FOXNews.com

House Speaker Nancy Pelosi insisted Friday that she was briefed only once about the "enhanced" interrogation techniques being used on terrorism suspects and that she was assured by lawyers with the CIA and the Department of Justice that the methods were legal.

Pelosi issued a statement after CIA records released this week showed that Pelosi was briefed in September 2002 on the interrogation methods. The briefings memo appeared to contradict the speaker's claims that she was never told that waterboarding or other enhanced interrogation methods were being used.

"We were not -- I repeat -- were not told that waterboarding or any of these other enhanced interrogation methods were used," Pelosi said on April 23.

The emphasis seems to be on "were used," even though she conceded in a statement released Friday that she was told they would be used.

"As I said in my statement of December 9, 2007: 'I was briefed on interrogation techniques the (Bush) administration was considering using in the future. The administration advised that legal counsel for both the CIA and the Department of Justice had concluded that the techniques were legal,'" she said.

But even that statement is at odds with the official record of the briefings recorded in the CIA memo dated to Sept. 4, 2002. That memo says Pelosi received a "briefing on EITs (enhanced interrogation techniques), including use of EITs on Abu Zubaydah, background on authorities and a description of particular EITs that had been employed."

Pelosi noted that the media had reported this week that CIA Director Leon Panetta wrote in a cover letter accompanying the briefings memo that "the descriptions provided by the CIA may not be accurate."

Pelosi is fighting back against accusations that she and other Democrats are being motivated by politics in their attempt to establish an independent commission to investigate officials and lawyers involved with the Bush-era interrogation programs.

Pelosi is just one of 65 lawmakers who received 40 briefings dealing with the subject. Sen. Jay Rockefeller, D-W.Va., for instance, was repeatedly briefed, as was Rep. Jane Harman, D-Valif., who took over Pelosi's spot on the House Intelligence Committee.

In addition, from the beginning of the program in 2002 until it became public in the fall of 2006, the House held 13 votes to authorize intelligence funding at which time no one objected or demanded changes to any intelligence programs.

The briefings took place in the months after the Sept. 11, 2001, terror attacks. At the time, the CIA was getting actionable intelligence that helped disrupt several terrorist plots.

Lawmakers apparently didn't want to stop that. But when it became public, Pelosi and others shifted gears and started criticizing a program they had known about for years, claimed GOP strategist Brad Blakeman.

"Either the speaker has a veracity problem or an incompetence problem and it could be both," Blakeman told FOX News. "The fact of the matter is she was briefed and she was hoping that the top secret nature of these briefings would shield her from this information coming out."

Blakeman added that he trusts the notes made at the briefings more than Pelosi's memory.

Justice Department officials are not likely to recommend criminal charges against the three Bush administration lawyers who the wrote the memos approving the interrogation methods, but two could face disciplinary action from their state bar associations.

[ccp]

"Justice Department officials are not likely to recommend criminal charges against the three Bush administration lawyers who the wrote the memos approving the interrogation methods, but two could face disciplinary action from their state bar associations."

Of course.  This was never about justice.  It was never about morality.  It was just to *get* Republicans.

Will Pelosi be held accountable?

[Body-by-Guinness]

Note that the administration has said it won't go after intelligence operatives either. Though they claim the high moral ground, that pesky self-interest keeps expediency on the front burner. I suspect before this term is over some interesting stuff will be coming out from "unnamed sources." Be interesting to see how the cheerleaders in the press corps will deal with leaked info.

[Crafty_Dog]

WASHINGTON — In an abrupt shift, Senate Democratic leaders said they would not provide the $80 million that President Obama requested to close the detention center at Guantánamo Bay, Cuba. The move escalates pressure on the president, who on Thursday is scheduled to outline his plans for the 240 terrorism suspects still held there.


In recent days, Mr. Obama has faced growing demands from both parties, but particularly Republicans, to lay out a more detailed road map for closing the Guantánamo prison and to provide assurances that detainees would not end up on American soil, even in maximum security prisons.

The move by Senate Democrats to strip the $80 million from a war-spending bill and the decision to bar, for now, transfer of detainees to the United States, raised the possibility that Mr. Obama’s order to close the camp by Jan. 22, 2010, might have to be changed or delayed.

“Guantánamo makes us less safe,” the Senate majority leader, Harry Reid of Nevada, said at a news conference where he laid out the party’s rationale for its decision, which is expected to be voted on this week. “However, this is neither the time nor the bill to deal with this. Democrats under no circumstances will move forward without a comprehensive, responsible plan from the president. We will never allow terrorists to be released into the United States.”

Senate Democrats said they still backed Mr. Obama’s decision to close the prison. But lawmakers have not exactly been eager to accept detainees in their home states. When the tiny town of Hardin, Mont., offered to put the terrorism suspects in its empty jail, Montana’s senators, both Democrats, and its representative, a Republican, quickly voiced opposition.

Administration officials have indicated that if the Guantánamo camp closes as scheduled more than 100 prisoners may need to be moved to the United States, including 50 to 100 who have been described as too dangerous to release.

Of the 240 detainees, 30 have been cleared for release. Some are likely to be transferred to foreign countries, though other governments have been reluctant to take them. Britain and France have each accepted one former detainee. And while as many as 80 of the detainees will be prosecuted, it remains unclear what will happen to those who are convicted and sentenced to prison.

At the White House, the press secretary, Robert Gibbs, said the administration expected that Congress would eventually release the money to close the camp, and he suggested that the concerns of lawmakers would start to be addressed on Thursday, when Mr. Obama will present a “hefty pa rt” of his plan.

At the Pentagon, a spokesman, Geoff Morrell, said he believed that the administration remained on track to meet the deadline for closing the prison. “I see nothing to indicate that that date is at all in jeopardy,” Mr. Morrell said.

As the administration has struggled with the issue, it has come under assault from the right and the left.

Conservatives have sought to portray the president as weak on national security. Liberals, including some human rights advocates, have criticized several of Mr. Obama’s decisions, including his plan to revive the military commissions created by the Bush administration to prosecute terrorism suspects held at Guantánamo.

Lawmakers, mindful of polls showing wide public opposition to bringing detainees to the United States, have expressed concerns about the safety of their constituents, and some have said that any location housing detainees, even the most secure prisons, would become a potential target for a terrorist attack.

On Tuesday Republicans, including the Senate minority leader, Mitch McConnell of Kentucky, who has been warning for weeks about the dangers of closing the prison, applauded the Democrats’ decision.

At a news conference, Mr. McConnell said he hoped it was a prelude to keeping the camp open and dangerous terrorism suspects offshore, where he said they belong. He noted that no prisoner had escaped from Guantánamo since the Sept. 11 attacks.

“Guantánamo is the perfect place for these terrorists,” Mr. McConnell said. “However, if the president ends up sticking with this decision to close it next January, obviously they need a place to be. It ought not to be the United States of America.”

Senate Democrats on Tuesday conceded that their decision to shift course in part reflected the success of Republicans in putting them on the defensive.

But the Democrats said they had also acted to avert a partisan feud that would delay the military-spending measure, which is needed to finance the wars in Iraq and Afghanistan and other national security programs through Sept. 30.

, , ,

continued

[Body-by-Guinness]

Wow, when the New York Times stops obfuscating on this front, perhaps one should look other signs of the apocalypse (see photo).

1 in 7 Freed Detainees Rejoins Fight, Report Found

May 21, 2009
1 in 7 Freed Detainees Rejoins Fight, Report Found

By ELISABETH BUMILLER
WASHINGTON — An unreleased Pentagon report provides new details concluding that about one in seven of the 534 prisoners already transferred abroad from the detention center in Guantánamo Bay, Cuba, has returned to terrorism or militant activity, according to administration officials.

The conclusion could strengthen the arguments of critics who have warned against releasing any more prisoners as part of President Obama’s plan to shut down the prison by January 2010. Past Pentagon reports on Guantánamo recidivism, however, have been met with skepticism from civil liberties groups and criticized for their lack of detail.

The Pentagon promised in January that the latest report would be released soon, but Bryan Whitman, a Pentagon spokesman, said this week that the findings were still “under review.”

Two administration officials who spoke on condition of anonymity said the report was being held up by Defense Department employees fearful of upsetting the White House, at a time when even Congressional Democrats have begun to show misgivings over Mr. Obama’s plan to close Guantánamo.

The White House has said that Mr. Obama will provide further details about his plans for closing the prison there in a speech Thursday morning at the National Archives.

Pentagon officials said there had been no pressure from the White House to suppress the report, and said they believed that the Defense Department employees, some of them holdovers from the Bush administration, were acting pre-emptively to protect their jobs.

The report is the subject of numerous Freedom of Information Act requests from news media organizations, and Mr. Whitman said that he expected it to be released shortly. The report, a copy of which was made available to The New York Times, says the Pentagon believes that 74 prisoners released from Guantánamo have returned to terrorism, making for a recidivism rate of nearly 14 percent.

The report was made available by an administration official sympathetic to its findings who said the delay was creating unnecessary “conspiracy theories” about the holdup.

A Defense Department official said there was little will inside the Pentagon to release the report because it had become politically radioactive under Mr. Obama.

“If we hold it, then everybody claims it’s political and you’re protecting the Obama administration,” said the official, who asked for anonymity because of the sensitivity of the situation. “And if we let it go, then everybody says you’re undermining Obama.”

Previous assertions by the Pentagon that substantial numbers of former Guantánamo prisoners had returned to terrorism were harshly criticized by civil liberties and human rights groups who said the information was too vague to be credible and amounted to propaganda in favor of keeping the prison open. The Pentagon began making these assertions in 2007 but stopped earlier this year, shortly before Mr. Obama took office. In recent days, the Pentagon has run into rising objections in Congress to closing the prison, particularly from Senator Harry Reid of Nevada, the Democratic majority leader, who said recently that Guantánamo detainees would “never” be released in the United States.

On Wednesday, Michele A. Flournoy, the under secretary of defense for policy, reminded reporters that many of these now expressing reservations about the transfer of prisoners from Guantánamo had also called for the closing it.

“I think there will be some that need to end up in the United States,” she said.

Among the 74 former prisoners that the report says are again engaged in terrorism, 29 have been identified by name by the Pentagon, including 16 named for the first time in the report. The Pentagon has said that the remaining 45 could not be named because of national security and intelligence-gathering concerns.

In the report, the Pentagon confirmed that two former Guantánamo prisoners whose terrorist activities had been previously reported had indeed returned to the fight. They are Said Ali al-Shihri, a leader of Al Qaeda’s Yemeni branch suspected in a deadly bombing of the United States embassy in Sana, Yemen’s capital, last year, and Abdullah Ghulam Rasoul, an Afghan Taliban commander, who also goes by the name Mullah Abdullah Zakir.

The Pentagon has so far provided no way of authenticating its 45 unnamed recidivists, and only a few of the 29 people who are identified by name can be independently verified as having engaged in terrorism since their release. Many of the 29 are simply described as associating with terrorists or training with terrorists, with almost no other details provided.

“It’s part of a campaign to win the hearts and minds of history for Guantánamo,” said Mark P. Denbeaux, a professor at Seton Hall University School of Law who has represented Guantánamo detainees and co-written three studies highly critical of the Pentagon’s previous recidivism reports. “They want to be able to claim there really were bad people there.”

Mr. Denbeaux acknowledged that some of the named detainees had engaged in verifiable terrorist acts since their release, but he said his research showed that their numbers were small. “We’ve never said there weren’t some people who would return to the fight,” Mr. Denbeaux said. “It seems to be unavoidable. Nothing is perfect.”

Terrorism experts said that a 14 percent recidivism rate was far lower than the rate for prisoners in the United States, which, they said, can run as high as 68 percent three years after release. The experts also said that while Americans might have a lower level of tolerance for recidivism among Guantánamo detainees, there was no evidence that any of those released had engaged in elaborate operations like the Sept. 11, 2001, attacks.

“Terrorism is perpetrated by organizations and not individuals,” said Bruce Hoffman, a terrorism expert at Georgetown University.

In addition to Mr. Shihri and Mr. Rasoul, at least three others among the 29 named have engaged in verifiable terrorist activity or have threatened terrorist acts.

Abu Hareth Muhammad al-Awfi, a Saudi national who was released from Guantánamo to Saudi Arabia in November 2007, and who is named on the most recent list of 16, appeared with Mr. Al-Shihri in a video released by Al Qaeda’s Yemeni branch in January and reported by news organizations at the time. Like Mr. Shihri, Mr. Awfi passed through a Saudi rehabilitation program for jihadists after their release from the prison. The program has been seen as a model, and the Saudi government has previously said that none of its graduates had returned to terrorism.

In the video, Mr. Awfi threatened attacks against Saudi Arabia and spoke angrily about Israeli attacks on Hamas in Gaza.

Another on the list of 29 whose case has been widely reported is Abdullah Salih al-Ajmi, a Kuwaiti who was in Guantánamo from 2002 to 2005 and who subsequently carried out a suicide bomb attack in Mosul, Iraq, in 2008. The attack killed several Iraqi soldiers.

Margot Williams contributed reporting from New York.

http://www.nytimes.com/2009/05/21/us/politics/21gitmo.html?_r=1

[Crafty_Dog]

By DAVID B. RIVKIN JR. and LEE A. CASEY
President Barack Obama is retaining many important Bush administration antiterror policies, including the detention without trial of jihadist captives as well as military commissions. He is determined, however, to close the Guantanamo detention facility because he believes doing so will not cause many problems in the U.S., and will improve our image abroad and bolster international support for U.S. antiterror policies. He will be disappointed on all counts.

Guantanamo has always been a symbol, rather than the substance, of complaints against America's "war on terror." It's the military character of the U.S. response to 9/11 that foreign and domestic critics won't accept.

There are also longstanding ideological currents at work here. At least since the 1970s, "progressive" international activists have sought to level the playing field between nation states (especially the U.S. and Israel) and nonstate actors such as the Palestine Liberation Organization and Hamas. Although international humanitarian law is supposed to apply neutrally to all belligerents, international opinion now gives nonstate actors far more leeway to ignore fundamental norms such as the rule against deliberately targeting civilians. The underlying implication is that terrorist tactics, however regrettable, are justified as the only means of achieving laudable goals like national liberation.

This mindset will not change if Guantanamo closes. At the same time, closing the detention facilities will create numerous headaches quite beyond the security issues raised by dangerous detainees who might escape or serve as a magnet for terrorist attacks in U.S.-based facilities.

One immediate problem, identified by FBI Director Robert Mueller, is the very real possibility that the Guantanamo detainees will recruit more terrorists from among the federal inmate population and continue al Qaeda operations from the inside. Radical Islamists already preach jihad in prisons -- this was how the just-arrested New York synagogue bombers were recruited -- and criminal gangs have proved that a half-in/half-out management model works.

A longer-term problem is that once Guantanamo is closed the option of holding captured enemy combatants any place overseas will be undermined. Over time, more and more such individuals, including the ones convicted by military commissions, would have to be brought to the U.S., especially as Europe backs away from taking such individuals. Aggregating the world's worst jihadists on American soil, from which they can never be repatriated, is not a smart way to fight a war.

Meanwhile, the legality of incarcerating captured terrorists in U.S. domestic prisons is far from clear. Today the Guantanamo detainees are held under well-established laws of war permitting belligerents to confine captured enemies until hostilities are over. This detention, without the due process accorded criminal defendants, has always been legally justified because it emphatically is not penal in nature but a simple expedient necessary to keep captives from returning to the fight. It was on this basis that the Supreme Court approved the detention of war-on-terror captives, without trial, in Hamdi v. Rumsfeld (2004).

The Guantanamo detainees are "unlawful" enemy combatants and not "prisoners of war" under the Geneva Conventions. Yet they are still combatants, not convicts. By contrast, the individuals held in the federal prison system, and especially those in the maximum security facilities suggested for the Guantanamo detainees, are convicted criminals.

It is very doubtful that under the customary laws and customs of war, the Hamdi decision, or Common Article 3 of the Geneva Conventions (which the Supreme Court also has applied to the war on terror) the Guantanamo detainees can be treated like convicted criminals and consigned without trial to the genuinely fearsome world of a super-max prison.

Segregating the detainees from the overall prison population -- to maintain the "non-penal" character of their confinement as well as to frustrate any recruiting activities or continuing al Qaeda operations -- is also legally dubious. Unless a new Guantanamo is to be constructed, this segregation will have to take place in existing isolation wards used to discipline (and sometimes protect) federal inmates.

This could mean solitary confinement, perhaps for 23 hours a day, without regard to a detainee's conduct or disciplinary status. The chances that courts would consider this to be the "humane" treatment required by the Geneva conventions are not overwhelming.

The Obama administration can be certain these conditions will be challenged in the courts, and it is difficult to see how, in light of current judicial attitudes, the detainees will be denied the entire panoply of constitutional rights claimed by ordinary inmates -- including lawsuits challenging their conditions of confinement. If courts conclude that these conditions are unconstitutional, or that they cannot be held indefinitely as enemy combatants, judges could mandate the release of these jihadists into the U.S.

Mr. Obama can still reverse his decision to close Guantanamo. This would cost him significant political support among his base. But making unpopular decisions to serve the national interest is a president's duty and obligation. In this regard, Mr. Obama should follow his predecessor's example and put American national security before the vagaries of popular approval.

Messrs. Rivkin and Casey worked in the Justice Department under Presidents Reagan and George H.W. Bush, and have served as expert members of the U.N. Subcommission on the Promotion and Protection of Human Rights.

[G M]

http://hotair.com/archives/2009/06/10/good-news-us-reportedly-reading-terrorists-their-miranda-rights-now/

Good news: U.S. reportedly reading terrorists their Miranda rights now
POSTED AT 6:22 PM ON JUNE 10, 2009 BY ALLAHPUNDIT   


Say, weren’t we warned during the campaign that this might happen if Obama won? Take it away, Sarahcuda:

Terrorist states are seeking nuclear weapons without delay … he wants to meet them without preconditions.

Al-Qaida terrorists still plot to inflict catastrophic harm on America … he’s worried that someone won’t read them their rights?

As I recall, she ate no small amount of crap for accusing him of that given his silence on the matter before the election. But then, this is the same woman who said enormous tax hikes were inevitable under The One in order to pay for his catastrophic expansion of government, notwithstanding his campaign promises not to raise taxes on the middle class. How’s that prediction working out so far? Crazy Sarah and her nutty theories.

Anyway, yeah. Miranda warnings:

If Tenet is right, it’s a good thing KSM was captured before Barack Obama became president. For, the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan, according a senior Republican on the House Intelligence Committee. “The administration has decided to change the focus to law enforcement. Here’s the problem. You have foreign fighters who are targeting US troops today – foreign fighters who go to another country to kill Americans. We capture them…and they’re reading them their rights – Mirandizing these foreign fighters,” says Representative Mike Rogers, who recently met with military, intelligence and law enforcement officials on a fact-finding trip to Afghanistan.

Rogers, a former FBI special agent and U.S. Army officer, says the Obama administration has not briefed Congress on the new policy. “I was a little surprised to find it taking place when I showed up because we hadn’t been briefed on it, I didn’t know about it. We’re still trying to get to the bottom of it, but it is clearly a part of this new global justice initiative.”

It was thoughtful of the most transparent administration evah to force Rogers to find out about this on the battlefield. There’s a certain perverse logic to it, though: If you’re unwilling to use any form of enhanced interrogation to save lives, you might as well go the whole nine yards and affirmatively warn detainees that they don’t have to talk to you. That’s what a law-enforcement approach to terrorism means — accepting a heightened risk of an attack by eschewing certain preventative measures in order to heighten the risk of conviction in court later by following criminal procedure. How this squares with The One’s willingness to send drones into Pakistan and torpedo houses packed with people on the say-so of informants is beyond me, but I’m sure we’ll get a speech on it at some point down the line. Exit question: Why institute a Miranda policy for terrorists captured abroad before the Supreme Court’s even heard the issue? They might find a wrinkle distinguishing classic criminal cases from prisoners of war — especially if Sotomayor’s half as tough on crime as the White House spin team keeps assuring us she is.

[Body-by-Guinness]

Here's the piece GM's posting quotes:

Not Right
The Obama administration grants Miranda rights to detainees in Afghanistan.
by Stephen F. Hayes
06/10/2009 2:05:00 PM

When 9/11 mastermind Khalid Sheikh Mohammad was captured on March 1, 2003, he was not cooperative. "I'll talk to you guys after I get to New York and see my lawyer," he said, according to former CIA Director George Tenet.

Of course, KSM did not get a lawyer until months later, after his interrogation was completed, and Tenet says that the information the CIA obtained from him disrupted plots and saved lives. "I believe none of these successes would have happened if we had had to treat KSM like a white-collar criminal -- read him his Miranda rights and get him a lawyer who surely would have insisted that his client simply shut up," Tenet wrote in his memoirs.

If Tenet is right, it's a good thing KSM was captured before Barack Obama became president. For, the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan, according a senior Republican on the House Intelligence Committee. "The administration has decided to change the focus to law enforcement. Here's the problem. You have foreign fighters who are targeting US troops today -- foreign fighters who go to another country to kill Americans. We capture them and they're reading them their rights -- Mirandizing these foreign fighters," says Representative Mike Rogers, who recently met with military, intelligence and law enforcement officials on a fact-finding trip to Afghanistan.

Rogers, a former FBI special agent and U.S. Army officer, says the Obama administration has not briefed Congress on the new policy. "I was a little surprised to find it taking place when I showed up because we hadn't been briefed on it, I didn't know about it. We're still trying to get to the bottom of it, but it is clearly a part of this new global justice initiative."

That effort, which elevates the FBI and other law enforcement agencies and diminishes the role of intelligence and military officials, was described in a May 28 Los Angeles Times article.

The FBI and Justice Department plan to significantly expand their role in global counter-terrorism operations, part of a U.S. policy shift that will replace a CIA-dominated system of clandestine detentions and interrogations with one built around transparent investigations and prosecutions.

Under the "global justice" initiative, which has been in the works for several months, FBI agents will have a central role in overseas counter-terrorism cases. They will expand their questioning of suspects and evidence-gathering to try to ensure that criminal prosecutions are an option, officials familiar with the effort said.

Thanks in part to the popularity of law and order television shows and movies, many Americans are familiar with the Miranda warning -- so named because of the landmark 1966 Supreme Court case Miranda v. Arizona that required police officers and other law enforcement officials to advise suspected criminals of their rights.

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.

A lawyer who has worked on detainee issues for the U.S. government offers this rationale for the Obama administration's approach. "If the US is mirandizing certain suspects in Afghanistan, they're likely doing it to ensure that the treatment of the suspect and the collection of information is done in a manner that will ensure the suspect can be prosecuted in a US court at some point in the future."

But Republicans on Capitol Hill are not happy. "When they mirandize a suspect, the first thing they do is warn them that they have the 'right to remain silent,'" says Representative Pete Hoekstra, the ranking Republican on the House Intelligence Committee. "It would seem the last thing we want is Khalid Sheikh Mohammed or any other al-Qaeda terrorist to remain silent. Our focus should be on preventing the next attack, not giving radical jihadists a new tactic to resist interrogation--lawyering up."

According to Mike Rogers, that is precisely what some human rights organizations are advising detainees to do. "The International Red Cross, when they go into these detention facilities, has now started telling people -- 'Take the option. You want a lawyer.'"

Rogers adds: "The problem is you take that guy at three in the morning off of a compound right outside of Kabul where he's building bomb materials to kill US soldiers, and read him his rights by four, and the Red Cross is saying take the lawyer -- you have now created quite a confusion amongst the FBI, the CIA and the United States military. And confusion is the last thing you want in a combat zone."

One thing is clear, though. A detainee who is not talking cannot provide information about future attacks. Had Khalid Sheikh Mohammad had a lawyer, Tenet wrote, "I am confident that we would have obtained none of the information he had in his head about imminent threats against the American people."

Stephen F. Hayes is a senior writer at THE WEEKLY STANDARD.

http://www.weeklystandard.com/Content/Public/Articles/000/000/016/605iidws.asp

[G M]

Milt, Rogt, JDN?

http://latimesblogs.latimes.com/washington/2009/06/barack-obama-george-w-bush-detainees.html

Obama prepares to hold Gitmo guys indefinitely, just as Bush did


In yet another sign of political perfidy, the White House of President George W. Bush has drafted a presidential executive order that would allow that double-dealing Republican chief executive to hold suspected terrorist detainees indefinitely.

According to the president's intentions, such suspects could be detained for long periods of time, virtually indefinitely. Is this really what the nation voted for last November?

Oh, wait. No. According to an exclusive Washington Post/Pro Publica report this afternoon, it's the refreshing new Democratic administration of Barack Obama that's now preparing this new executive order to hold certain terrorist suspects indefinitely.

This is an obviously inspiring sign of the new style of leadership the Democrat promised and is finally bringing to the White House. As one blogger put it, George W. Obama. And it shows the kind of powerful political pragmatism with which the ex-senator from Illinois approaches this job at such a crucial and globally turbulent time.Strangely, it was leaked to the Post on a slow summer Friday afternoon when it wouldn't gain much attention.

According to the Post report, the 44th president is now starting to think that closure of the internationally-reviled Guantanamo Bay detention facility, which Obama announced with so much fanfare on his first day in office last winter, may be impossible to actually accomplish before the one-year deadline he set for himself before actually planning where else to put these prisoners.

In other words, fanfare aside, status quo ante. Democrat or Republican, same deal. Ex-Vice President Dick Cheney will be so pleased that the Obama-Biden folks finally accepted his advice to protect national security.

Another sign, finally, of real change after eight long years of the very same thing.

-- Andrew Malcolm

[rachelg]

I  am still on vacation but I could answer this post pretty quickly.


http://www.salon.com/opinion/greenwald/2009/06/27/preventive_detention/

It links to several commentators who are critical of the Obama policy

[Crafty_Dog]

Michael Yon throws his weight behind a search for SF soldiers to fight habeas corpus in Afpakia.


http://www.michaelyon-online.com/disturbing-developments.htm

[Crafty_Dog]

U.S. to Expand Review of Detainees in Afghan Prison Sign in to Recommend
ERIC SCHMITT

Published: September 12, 2009
WASHINGTON — The Obama administration soon plans to issue new guidelines aimed at giving the hundreds of prisoners at an American detention center in Afghanistan significantly more ability to challenge their custody, Pentagon officials and detainee advocates say.

The new Pentagon guidelines would assign a United States military official to each of the roughly 600 detainees at the American-run prison at the Bagram Air Base north of Kabul. These officials would not be lawyers but could for the first time gather witnesses and evidence, including classified material, on behalf of the detainees to challenge their detention in proceedings before a military-appointed review board.

Some of the detainees have already been held at Bagram for as long as six years. And unlike the prisoners at the Guantánamo Bay naval base in Cuba, these detainees have had no access to lawyers, no right to hear the allegations against them and only rudimentary reviews of their status as “enemy combatants,” military officials said.

The changes, which are expected to be announced as early as this week after an obligatory Congressional review, come as the Obama administration is picking through the detention policies and practices of the Bush administration, to determine what it will keep and what it will abandon in an effort to distance itself from some of the harsher approaches used under President George W. Bush. Human rights groups and prisoner advocates cautiously hailed the policy changes but said the government’s track record in this area had been so poor that they wanted to see concrete results before making hard judgments.

The decision has an immediately pragmatic side, too, coming as the administration is preparing to appeal a federal judge’s ruling in April that some Bagram prisoners brought in from outside Afghanistan have a right to challenge their imprisonment.

Some of the changes in the American detention policies are already under way. The Pentagon is closing the decrepit Bagram prison and replacing it this fall with a new 40-acre complex that officials say will be more modern and humane. In a recent policy reversal, the military for the first time is notifying the International Committee of the Red Cross of the identities of militants who were being held in secret at a camp in Iraq and another in Afghanistan run by United States Special Operations forces.

The Bagram prison has become an ominous symbol for Afghans — a place where harsh interrogation methods and sleep deprivation were used routinely in its early years, and where two Afghan detainees died in 2002 after being beaten by American soldiers and hung by their arms from the ceilings of isolation cells. Bagram also became a holding site for terrorism suspects captured outside Afghanistan and Iraq.

Since July, the prisoners at Bagram have refused to leave their cells to shower, meet with family members or Red Cross officials, or take part in other activities, to protest their indefinite imprisonment, human rights advocates said.

Pentagon officials said the new guidelines governing each detainee’s custody status reflect a broader shift to separate extremist militants from more moderate detainees instead of having them mixed together as they are now.

“We don’t want to hold anyone we don’t have to hold,” said one Defense Department official, who spoke on the condition of anonymity because the guidelines have not been formally announced. “It’s just about doing the right thing.”

The official declined to estimate how many detainees might be freed once they have new evidence and witnesses to testify on their behalf.

Sahr MuhammedAlly, a senior associate for law and security at the advocacy group Human Rights First who in April interviewed several former Bagram detainees in Afghanistan, called the proposed changes an improvement. But she said that “it remains to be seen whether they’ll be able to prevent arbitrary and indefinite detention.”

Tina Foster, the executive director of the International Justice Network, which is representing four Bagram detainees in a pending court case, expressed deep reservations.

“On paper, it appears they’re going to be changes that will allow detainees more opportunity to present their side of the story,” Ms. Foster said in a telephone interview. “But I think the procedures are just words on pieces of paper unless someone is there to ensure they’re being followed and the detainee has the ability to understand them and avail themselves of them.”

Military officials and human rights advocates also said there were questions about how quickly and comprehensively the guidelines could be put into practice, given concerns about shortages of qualified personnel to represent the detainees.

The changes have come as the administration is expected as early as Monday to file a formal written brief explaining its opposition to a ruling by a federal district judge, John D. Bates, in April. In it, he ruled that three detainees at Bagram had the same legal rights that the Supreme Court last year granted to prisoners held at Guantánamo Bay.

The prisoners — two Yemenis and a Tunisian — say that they were captured outside Afghanistan and taken to Bagram, and that they have been held for more than six years without trials. Arguing that they were not enemy combatants, the detainees want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.

The Obama administration, like the Bush administration, has rejected this argument. Officials say the importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has risen under the Obama administration, which barred the Central Intelligence Agency from using its secret prisons for long-term detention and ordered the military prison at Guantánamo closed within a year.

The new policy guidelines will bolster the government’s case, said the Defense Department official, who added, “We want to be able to go into court and say we have good review procedures.”

The Obama administration had sought to preserve Bagram as a haven where it could detain terrorism suspects beyond the reach of American courts, agreeing with the Bush administration’s view that courts had no jurisdiction over detainees there.

[Crafty_Dog]

barely mentioned that the last SEVEN heads of the CIA have asked BO to over-rule AG Holder's ongoing legal investigations into intel matters.

[Crafty_Dog]

http://www.michaelyon-online.com/images/pdf/maqaleh_%20amicus_as_filed.pdf

[Freki]

The left have run their mouth so much about Gitmo and Bush that they are now caught on their own petard.  This ruling claiming habeas rights in some areas and not others can not stand up.  It makes no sense.  There are no habeas rights on the battlefield.  What in the constitution or history for that mater gives the courts the power to define the battlefield?  It is only a way for the left to attack Bush and his legicy.  They are going to destroy the intelligence gathering capability of this country at a time we are stepping up persure on Iran?!  All for political points, the country be damed!  Their huberis is breathtaking!  If I did not think this foolish course of action would get Americans killed I would love to see them fail, however they are going to get many people killed maybe thousands of Americans.  I am glad to see the Amicus Curiae Special Forces Association do something about this insanity.  I only hope it succeeds.

Freki

[Crafty_Dog]

The blithering fatuousness of the Oboids boggles the mind to the point that one begins to wonder if it is on purpose. 

Our country and its protectors are going to pay heavily.

[G M]

Where are all the left wing screamers? Remember "Boooooosh is shredding the constitution!!!!!"

Now all quiet.

[Crafty_Dog]

Coming soon to a civilian courtroom blocks from Ground Zero: Khalid Sheikh Mohammed and the four other al Qaeda planners of 9/11. Be sure to get your tickets early, and don't forget to watch out for the truck-bomb barricades and rooftop snipers.

Attorney General Eric Holder, who dropped this legal bomb on New York yesterday, called his decision to move their trial on war crimes from a military courtroom at Guantanamo Bay to American soil "the toughest" he has had to make. Other words come to mind. For starters, intellectually and morally confused, dangerous and political to a fault.

This decision befits President Obama's rushed and misguided announcement on his second day in office that he would close Gitmo within a year. This was before the Administration had thought through what to do with the 215 prisoners there, though it did win him applause in Europe and on the American left. Yesterday's decision rids Gitmo of these meddlesome detainee cases in order to speed up this entirely political shutdown.

View Full Image

Associated Press
 
Khalid Sheikh Mohammed
.Please spare us talk of the "rule of law." If that was the primary consideration, the U.S. already has a judicial process in place. The current special military tribunals were created by the 2006 Military Commissions Act, which was adopted with bipartisan Congressional support after the Supreme Court's Hamdan decision obliged the executive and legislative branches to approve a detailed plan to prosecute the illegal "enemy combatants" captured since 9/11.

Contrary to liberal myth, military tribunals aren't a break with 200-plus years of American jurisprudence. Eight Nazis who snuck into the U.S. in June 1942 were tried by a similar court and most were hanged within two months. Before the Obama Administration stopped all proceedings earlier this year pending yesterday's decision, the tribunals at Gitmo had earned a reputation for fairness and independence.

As it happens, Mr. Holder acknowledged their worth himself by announcing that the Guantanamo detainee who allegedly planned the 2000 bombing of the U.S.S. Cole off Yemen and four others would face military commission trials. (The Pentagon must now find a locale other than the multimillion-dollar, state-of-the-art facility at Gitmo for its tribunal.)

Why the difference? Mr. Holder seemed to suggest that the Cole bombers struck a military target overseas and thus are a good fit for a military trial, while KSM and comrades hit the U.S. and murdered civilians and thus deserve a U.S. civilian trial. But this entirely misunderstands that both groups are unlawful enemy combatants who are accused of war crimes, whatever their targets. Mr. Holder's justification betrays not a legal consistency but a fundamentally political judgment that he can make as he sees fit.

The Military Commissions Act, by contrast, devised a careful, consistent legal process for every detainee. Remember when critics blamed President Bush for exercising too much executive discretion?

Mr. Holder expressed confidence that KSM and the rest will be convicted, but it is telling that he also delayed filing formal charges. Will KSM be formally charged with the 9/11 murders, or merely with "material support" for terrorism or some lesser offense? The specific charges may depend on how much evidence is admissable in a civilian courtroom. The MCA allowed for the reality that much of the evidence against enemy combatants may be classified, and it allowed for some hearsay evidence on grounds that they have been picked up on a battlefield, not in Brooklyn. There is no CSI: Kandahar. A civilian court has far tighter rules of evidence.

KSM and his co-conspirators so far have refused legal counsel and at one point tried to plead guilty. They may again. But an army of self-declared defenders of human rights from Yale Law and Shearman & Sterling will clamor to represent them. Those lawyers are certain to challenge all evidence obtained after KSM's March 2003 capture on grounds that it was produced by "torture," if you call waterboarding torture.

As he said at a hearing in 2007, "I was responsible for the 9/11 operation from A to Z." But even that admission will probably be challenged on grounds that the trauma of his "torture" means he wasn't capable of "informed consent." Oh, and once he got to Gitmo in 2006, he may not have been read his Miranda rights in full. The possibility exists that one or more of these detainees could be acquitted on procedural grounds, which would be a travesty of justice.

One certain outcome is that an open civilian trial will provide valuable information to terrorists across the world about American methods and intelligence. Precisely because so much other evidence may not be admissable, prosecutors may have to reveal genuine secrets to get a conviction. Osama bin Laden learned a lot from the 1995 prosecution in New York of the "blind cleric" Sheik Omar Abdel Rahman for the first World Trade Center attack. His main tip was that the U.S. considered bin Laden a terrorist co-conspirator, leading him to abandon his hideout in Sudan for Afghanistan.

Terrorists also love a big stage, and none come bigger than New York. Zacarias Moussaoui, the so-called 20th hijacker, made his civilian trial a spectacle. Not even the best judge can entirely stop KSM and others from doing the same. And Mr. Holder has invited grave and needless security risks by tempting jihadists the world over to strike Manhattan while the trial is in session.

Most Americans, we suspect, can overlook the legal niceties and see this episode through the lens of common sense. Foreign terrorists who wage war on America and everything it stands for have no place sitting in a court of law born of the values they so detest. Mr. Holder has honored mass murder by treating it like any other crime.

[G M]

Power Line Blog: John Hinderaker, Scott Johnson, Paul Mirengoff
http://www.powerlineblog.com

Trying KSM: Why? An insane protocol
   
November 18, 2009 Posted by Scott at 3:18 PM
In his press conference this past Friday and in his testimony before the Senate Judiciary Committee today, Attorney General Holder has explained his decision to refer KSM and his 9/11 co-conspirators to trial based on a "protocol" released in July.

What protocol? I don't recall reading anything about it at the time it was released, or seeing anything about it in connection with Holder's decision to deliver KSM et al. to federal court in New York for trial cloaked with the constitutional rights of American citizens.

I called the Justice Department this morning to ask for a copy of the protocol and was directed to the document in issue. It is titled "Determination of Guantanamo Cases Referred for Prosecution." The first paragraph describes a process for determining which cases are to be referred for criminal prosecution. The second paragraph sets forth the "Factors for Determination of Prosecution." It reads as follows:

There is a presumption that, where feasible. referred cases will be prosecuted in an Article III [federal] court, in keeping with traditional principles of federal prosecution. Nonetheless, where other compelling factors make it more appropriate to prosecute a case in a reformed military commission, it may be prosecuted there. That inquiry-turns on the following three broad sets of factors, which are based on forum-selection factors traditionally used by federal prosecutors:

A. Strength of Interest. The factors to be considered here are the nature of the offenses to be charged or any pending charges; the nature and gravity of the conduct underlying the offenses; the identity of victims of the offense; the location in which the offenses occurred; the location and context in which the individual was apprehended; and the manner in which the case was investigated and evidence gathered, including the investigating entities.

B. Efficiency. The factors to be considered here are protection of intelligence sources and methods; the venue in which the case would be tried; issues related to multiple-defendant trials; foreign policy concerns; legal or evidentiary problems that might attend prosecution in the other jurisdiction: and efficiency and resource concerns.

C. Other Prosecution Considerations. The factors to be considered here are the extent to which the forum, and the offenses that could be charged in that forum, permit a full presentation of the wrongful conduct allegedly committed by the accused, and the available sentence upon conviction of those offenses.




Despite the bare bones nature of the enumerated factors and the lack of detail regarding how they are to applied, this is a shocking document. The operative presumption is a rule in favor of criminal prosecution. Nothing could more clearly indicate the Obama administration's treatment of the war on terrorism as a venture in aw enforcement. In the words of the late John Lennon: "WAR IS OVER! (if you want it)."

Given the referral of the case against KSM et al. for prosecution in federal court, we can do a little reverse engineering to figure out how the enumerated factors are apparently applied by the Obama administration. If the attack occurred in the United States, it weighs in favor of criminal prosecution. If the attack focused on American civilians, it weighs in favor of criminal prosecution. (It is less clear to me how the other factors are weighed and applied in practice.) Application of these factors can convert heinous acts of war and war crimes into criminal offenses with respect to which the perpetrators are subject to the protections of the Constitution of the United States.

That way madness lies. The Obama administration is engaged in a venture that will simultaneously undermine the prosecution of the war in which we are engaged while it blurs the distinction between war and crime. It is a venture that works a great burden on the federal courts and prosecutors. To what end?

With a few exceptions, Attorney General Holder has been exceedingly wary of articulating the application of the "factors" to KSM et al. other than by general reference to the "protocol." As we pointed out, what Holder has said about application of the factors makes no sense at all. Attacks on Americans in the United States are presumably to be treated as crimes subject to prosecution in federal court. Why? What is the underlying rationale? Again, Holder has been wary of articulating it.

Whatever it is, notice should be taken. The Obama administration's "protocol" sends up a red flag signaling a great danger to the people of the United States.

UPDATE: Andrew McCarthy comments here.

[G M]

The core issue is that the American legal system is not structured to fight the global jihad. The Clinton administration tried to indict al qaeda into submission. I think 9/11 demonstrated how unsuccessful that strategy was. The criminal justice system and the military both have roles in fighting the war, but we have to fight the war by aggressive, intelligence driven strikes. Just as they use asymmetrical tactics against us, we must use asymmetrical tactics against them. The way to fight and win is by hunting them down, capturing and killing their networks. You don't do that by trying to appease the ACLU.

We could never teach the jihadists to love us, we can however teach them to fear us. They have no legal standing under the rules of law. We can catch them, interrogate them and kill them as needed. We should not hesitate to do so.

http://corner.nationalreview.com/post/?q=M2UxNzE4YjJjODJhYmIyZDFjZmU2NTdmMzk5YTQyZTc=

Tuesday, January 05, 2010



Moussaoui Conviction Upheld   [Andy McCarthy]


The Fourth Circuit U.S. Court of Appeals has affirmed the conviction and sentence of 9/11 conspirator Zacarias Moussaoui. Enthusiasts of the law-enforcement approach to terrorism will undoubtedly claim this development as more evidence that their strategy works. To the contrary, I have argued several times (see, e.g., here and here) that we dodged a bullet with Moussaoui — i.e., if he had not surprised everyone by pleading guilty, if he had instead insisted on proceeding with his trial (not just the penalty phase but the guilt phase), the case might well have ended disastrously.

The Fourth Circuit's 78-page decision bears me out. The appellate court notes that Moussaoui claims it was error for the trial judge to interfere with his unqualified right to represent himself; "to have personal, pretrial access to classified, exculpatory evidence"; and to be able to summon witnesses like co-conspirator Khalid Sheikh Mohammed for trial testimony. The Fourth Circuit acknowledges that all these claims have merit, but the court finds that Moussaoui, by pleading guilty, waived any claim of prejudice. Opinion at pp. 24–28. Even more alarming, the Fourth Circuit concedes that its waiver rationale is inconsistent with a decision by the Ninth Circuit on which Moussaoui relies — i.e., if the Fourth Circuit had followed the Ninth Circuit, there's a good chance it would have had to agree that, regardless of the guilty plea, Moussaoui's convictions should be reversed.

The Fourth Circuit also reminds us that the trial judge initially struck the death penalty from the case because the government refused to give Moussaoui access to the al-Qaeda prisoner witnesses. The Fourth Circuit reversed the judge at the time, but on the condition that it would be open to revisiting that conclusion if the government failed to provide Moussaoui with all the classified exculpatory information to which he was entitled. At that critical moment, Moussaoui decided to plead guilty. That is, we never found out what would have happened if Moussaoui had insisted on a trial at which he'd have access to all these witnesses and other national-defense information. The guilty-plea is deemed to have waived any claim by Moussaoui that he was denied the information to which he was entitled.

In the next case — like, say, KSM's civilian trial — the defendants will be smart enough not to plead guilty. They will insist on getting every piece of intelligence they're entitled to. And the prosecutors will look at this ruling on Moussaoui's appeal and realize they'd better give it to them or risk having the case thrown out. That's what the law-enforcement approach buys you.

[Crafty_Dog]

That seems like a sound reading to me.

[G M]

Who here thinks the founding fathers would have wanted jihadists to enjoy constitutional protections? "Lawfare" will be the death of us.

http://www.nydailynews.com/news/ny_crime/2010/01/05/2010-01-05_200m_a_year_for_terror_trial_here.html?print=1&page=all

Security for trial of 9/11 mastermind Khalid Shaikh Mohammed would cost $200M a year: sources
BY Michael Saul
NEWS POLITICAL CORRESPONDENT

Tuesday, January 5th 2010, 4:00 AM


Security for the federal trial of self-proclaimed 9/11 mastermind Khalid Shaikh Mohammed and four accused cohorts will run $200 million a year, sources told the Daily News.

The NYPD's newly revised projection is almost triple the estimate of $75 million in November, after Attorney General Eric Holder announced he would move the prisoners from Guantanamo to Manhattan for trial.

The legal process is expected to play out over more than a year.

[G M]

http://www.politico.com/blogs/politicolive/0110/Brenan_deal_on_the_table_for_terror_suspect.html#

Brennan: Deal 'on the table' for terror suspect

The U.S. Government is offering the suspect charged with attempting to bomb an aircraft on Christmas Day, Omar Abdulmutallab, some kind of incentives to share what he knows about Al Qaeda, White House counterterrorism adviser John Brennan said Sunday.

Asked why Abdulmutallab should cooperate given his right, as criminal defendant, to remain silent, Brennan replied: "He doesn't have to but he knows there are certain things that are on the table... if he wants to engage with us in a productive manner, there are ways he can do that."

Asked if Abdulmutallab's willingness to talk changed once he had an attorney, Brennan declined to answer. "I'm not going to address what he did before or after he talked with a lawyer," the adviser said.

Brennan declined to say what criteria are used to decide whether a prisoner should be taken into criminal court or before a military commission. "There are no downsides or upsides in particular cases," he said. "What we're trying to do is make the right determination in particular cases."

[G M]

http://online.wsj.com/article/SB10001424052748703436504574640560502410466.html?mod=rss_opinion_main

The Ramzi Yousef Standard
The Administration has ways of making terrorists not talk.

[Crafty_Dog]

By JAMES TARANTO
Two weeks from today is the deadline for emptying the terrorist detention facility at Guantanamo Bay, a cutoff that the newly inaugurated President Obama established as one of his first acts in office. No one anymore expects his administration to meet the deadline, and Newsweek's Michael Isikoff reports that there is increasing doubt as to whether it will carry out the promise at all. "I'm beginning to think that Guantánamo is not ever going to be closed," a Bush administration lawyer and Guantanamo foe, tells Isikoff: "I would bet some money that it's not going to get closed in the Obama presidency":

"To some extent, I think the administration has blown it," adds Marc Falkoff, a lawyer who represents some of the Yemeni detainees at Gitmo. "It has delayed, and they've gotten themselves into a reactive state and you can't get anything done when you're reacting to political winds. . . . It looks like Guantánamo will be around for the foreseeable future."
Obama's promise has run up against reality in several different ways. The revelation that former detainees now based in Yemen were involved in planning the Christmas attack in Detroit prompted the administration to announce a halt to repatriation of Yemenis. (In fairness, we hasten to note that the ex-detainees who rejoined the fight were released while George W. Bush was president.) It turns out there really are terrorists at Guantanamo--who knew?

Well, Democrats in Congress knew (though who knew they knew?). Isikoff reports that the administration cannot legally carry out its plan to move detainees to Illinois's Thomson Correctional Center:

The administration is already blocked from moving any Guantánamo detainees to the U.S. for purposes other than putting them on trial. That's the result of a rider to a congressional appropriations bill that passed overwhelmingly last spring and which expires Sept. 30.
In order to move the Yemenis and other Gitmo detainees to Thomson, the administration needs to persuade the Congress to lift the rider--in an election year, no less--a much more difficult task when the proposal is to move more than 100 detainees to the U.S. rather than 20 or 30.
Opposition to Obama's terrorist-importation plan is bipartisan, notes Isikoff: "If Republicans make big gains in the fall elections, as many analysts now predict, the odds of lifting the anti-Gitmo rider would become even steeper."

But here's the kicker. It turns out the detainees themselves prefer to stay put:

Many of the detainees may not even want to be transferred to Thomson and could conceivably even raise their own legal roadblocks to allow them to stay at Gitmo.
Falkoff notes that many of his clients, while they clearly want to go home, are at least being held under Geneva Convention conditions in Guantánamo. At Thomson, he notes, the plans call for them to be thrown into the equivalent of a "supermax" security prison under near-lockdown conditions.
To the limited extent that the Geneva Conventions have been held to protect unlawful enemy combatants, the detainees would enjoy that protection at Thomson too. They would also have additional rights under U.S. law, since they would be under the jurisdiction of the local U.S. district court rather than the special federal jurisdiction created by the Military Commissions Act of 2006. As a practical matter, though, their lives are cushier at Guantanamo than they would be at Thomson, in part because the risk of escape from a military facility in the middle of nowhere is considerably less than from a prison in the American heartland.

Podcast
James Taranto on Obama and Guantanamo.
.Is there any argument left for closing Guantanamo? Claims of detainee abuse were mostly bunk to begin with (remember when Isikoff's magazine claimed falsely that an interrogator had flushed a Koran down a toilet?), and any irregularities have long since been remedied. The president is reduced to making the frivolous claim that the existence of Guantanamo is dangerous because it is somehow useful to al Qaeda's recruiting efforts.

Ultimately, the case against Guantanamo can be reduced to an ad hominem attack. Obama and his supporters loathe it because it is a symbol of the hated George W. Bush. For the president of the United States, it is past time to move on from petty grievances and deal in a serious and forthright way with the demands of American national security.

[michael]

So, what are the liberals going to do now? Turns out the Gitmo terrorists actually like it there? What to do now, Obama?

[Body-by-Guinness]

Politically Correct Killing? -- By: Victor Davis Hanson
 National Review Online 3/3/10 3:00 AM webmaster@nationalreview.com (Victor Davis Hanson)
By all accounts, President Obama has vastly increased the number of Predator drone strikes during his 13 months in office and expanded the theater of missile operations by thousands of square miles. Indeed, since inauguration day, 2009, Predator and Reaper drone attacks may have killed over 500 suspected terrorists in Waziristan and Pakistan.

In January of this year alone, the United States conducted ten strikes, and may have killed some 70 suspected al-Qaeda or Taliban terrorists -- along with additional unknown others in their vicinity. When we killed Baitullah Mehsud, the leader of the Taliban in Pakistan, last summer, eleven others were blown up with him, among them his wife and father-in-law -- and, earlier, dozens of others were killed in strikes that failed to target him. In the first two months of 2010, the Obama administration conducted almost half the number of strikes that were conducted in all of 2008, the last full year of the Bush administration.

Why has Obama expanded a killing program that seemingly is at odds with his own past statements (“We’ve got to get the job done there, and that requires us to have enough troops so that we're not just air-raiding villages and killing civilians, which is causing enormous pressure over there”) -- as well as with his general efforts to envision the war on terror as more a criminal-justice operation where terrorists are tried in civilian courts and given their Miranda rights?

First, drone aircraft reflect our technological superiority and sensitivity about suffering casualties -- and give the U.S. enormous advantages in an asymmetrical war that often favors the enemy. Drones are far cheaper than conventional attack planes, and if they are downed, they cost no American lives.

Second, because of improved technology in the Predator program, a substantial increase in the number of our drones, and increased cooperation from the Pakistani government, the United States is now able to target far more suspected terrorists -- and kill them -- than ever before.

Third, killing suspected terrorists is far easier than capturing and detaining them. Apparently the Obama administration has concluded that dead men need no cells in Guantanamo, no interrogations, no Miranda rights, no sympathetic ACLU lawyers, and no trials in New York.

Fourth, the Obama administration apparently has been won over to the Bush notion that the number of terrorists is finite. Just as the Bush administration believed that the killing of top al-Qaeda operatives in Iraq -- Abu Musab al-Zarqawi for one -- weakened the insurgency, so too the Obama administration now believes that key individuals are unique, and that their lost terrorist expertise is not automatically replaced.

Fifth, the Obama administration apparently understands that there will be few political attacks from the Left on the Predator targeted-killing policy of the sort once voiced by candidate Obama. Obama understands that most of the loud leftwing criticism of the Bush anti-terrorism policy was less principled than political in nature, part of a larger effort to discredit the administration in general. Thus, the Constitution-shredding Bush-Cheney protocols of yesteryear -- renditions, military tribunals, intercepts, wiretaps, troops in Iraq, Guantanamo -- are apparently no longer subversive, but instead are considered useful tools in maintaining U.S. security. 



Note that the characterization of the attacks as “assassinations” is not hyperbole; it is a more descriptive term than “bombings.” We are not always focusing on generic terrorist training camps and compounds to eliminate anonymous killers, but often targeting specific individuals whose names and profiles we know -- just as, say, the 1943 American P-38 fighter-squadron assassination of Admiral Yamamoto in the Pacific (“Operation Vengeance”) was different in character from the usual fighter and bomber missions against unknown Japanese.

So plenty of issues are raised by the Obama administration’s escalation of targeted assassinations that heretofore have not been fully voiced.

(1) The most obvious is the contradiction not just between the rhetoric of candidate Obama and President Obama (that is now old hat, as we have seen with renditions, tribunals, Guantanamo, etc.), but between Obama’s refashioning of the war on terror itself and the new greater reliance on targeted airborne assassinations. Investigations of Bush-administration officials who approved the waterboarding of three known terrorist masterminds responsible for thousands of American deaths seem incompatible with the more lethal tactics of executing suspected terrorists (and their families) in Pakistan and Waziristan. One difference, of course, as noted above, is that terrorists we execute are not technically in our custody. True, but in today’s sophisticated technological world, once the televised image of someone in Waziristan is beamed into Nevada, the soldier with his hand on the firing button seems to have more jurisdiction over a suspected terrorist than a jailer does over a known one in Guantanamo.

(2) I think the Obama administration will have to cease the commonplace U.S. criticism of targeted assassinations abroad, such as the objections we used to make to the Israelis’ missile attacks on Hamas officials. When one removes the word “war” from “war on terror,” and begins Mirandizing would-be mass murderers such as the Christmas Day bomber, then conflict devolves into the realm of espionage and criminal justice. Thus the line between a team of Israeli agents executing a known Hamas kingpin in Dubai and a squadron of Predators taking out dozens of suspected terrorists in Pakistan seems somewhat blurred. Was the conflict in Gaza and its aftermath any less a “war” than our own efforts in Afghanistan? More to the point, in the context of Obama’s voicing sharp criticism of the previous administration, promising Mr. Abdulmutallab his Miranda rights, and planning to try Khalid Sheikh Mohammed in New York, his administration’s assassination plans strike a false note. One expects Texans in loudly announced “wars on terror,” not Nobel peace laureates in “overseas contingency operations,” to order the summary execution of suspects -- and anyone unlucky enough to be nearby when the Hellfire missile hits.

(3) Once the Obama administration played to the media by announcing preliminary investigations of Bush-era CIA personnel and lawyers for the waterboarding of three terrorists, a dangerous precedent was established. One of the reasons the administration has not clarified its expanded Predator policy may well be that no liberal jurist now serving in the Justice Department wants his own imprint on a policy that, according to Obama’s past accusations, would be considered suspect in nature and its advocates perhaps criminally culpable at some future date. (Indeed, according to the current protocols of liberal jurisprudence, some current Department of Justice grandee might in a few years find a summons delivered to his Ivy League dean’s office, charging him with authorship of an “illegal” policy of targeted killing.)

I wholeheartedly support the president’s expanded use of Predators against suspected terrorists in Pakistan and its environs -- if we agree that we are in a global war on radical Islamic terrorism, and are also consistent in seeing our adversaries as non-uniformed enemy combatants not subject to the normal rules of war. But the expansion of targeted assassinations does not square with the administration’s past rhetoric and its present interest in seeing anti-terrorism as more akin to criminal justice than war.

In short, we need an examination of our entire policy from an administration that has expanded a controversial wartime tactic without the sort of legal clarifications it once insisted were essential in operations professed not to be exactly war.

-- NRO contributor Victor Davis Hanson is a senior fellow at the Hoover Institution, the editor of Makers of Ancient Strategy: From the Persian Wars to the Fall of Rome, and the author of The Father of Us All: War and History, Ancient and Modern.

http://article.nationalreview.com/426666/politically-correct-killing/victor-davis-hanson

[Crafty_Dog]

By Debra Burlingame and Thomas Joscelyn
On the evening of Jan. 26, 2006, military guards at Guantanamo Bay made an alarming discovery during a routine cell check. Lying on the bed of a Saudi detainee was an 18-page color brochure. The cover consisted of the now famous photograph of newly-arrived detainees dressed in orange jumpsuits—masked, bound and kneeling on the ground at Camp X-Ray—just four months after 9/11. Written entirely in Arabic, it also included pictures of what appeared to be detainee operations in Iraq. Major General Jay W. Hood, then the commander of Joint Task Force-Guantanamo, concurred with the guards that this represented a serious breach of security.

Maj. Gen. Hood asked his Islamic cultural adviser to translate. The cover read: "Cruel. Inhuman. Degrades Us All: Stop Torture and Ill-Treatment in the 'War on Terror.'" It was published by Amnesty International in the United Kingdom and portrayed America and its allies as waging a campaign of torture against Muslims around the globe.

"One thread that runs through many of the testimonies from prisons in Afghanistan and Iraq, and from Guantanamo," the brochure read, "is that of anti-Arab, anti-Islamic, and other racist abuse."

How did the detainee get it? More importantly, who gave it to him?


David Klein
 .Majeed Abdullah Al Joudi, the detainee in whose cell the brochure was first found, told guards he received the brochure from his lawyer. An investigation by JTF-GTMO personnel revealed that Julia Tarver Mason, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, had sent it to Al Joudi and eight of the firm's other detainee clients through "legal mail"—a designation for privileged lawyer-client communications that are exempt from screening by security personnel. Worse, the investigation showed that Ms. Mason's clients passed it to other detainees not represented by Paul, Weiss lawyers. In all, more than a dozen detainees received a copy.

At Guantanamo, "legal mail" is strictly limited to correspondence between counsel and a detainee that is related to representation of the detainee, privileged documents and publicly filed legal documents. But even "legal mail," according to the rules mandated by Judge Joyce Hens Green in a 2004 protective order, prohibits lawyers from giving detainees information relating to military operations, intelligence, arrests, political news and current events, and the names of U.S. government personnel. Lawyers are forbidden from discussing other detainee cases not directly related to the representation of their own client.

The Amnesty International brochure, handed out at a human rights conference in London, was a political advocacy screed in clear violation of that order, which was formulated to protect force security. Maj. Gen. Hood made a command decision. He banned the Paul, Weiss lawyers from access to Guantanamo. The DOJ notified the firm.

Paul, Weiss immediately went on the offensive, backed by what one former Defense Department official, who requested anonymity, called "an armada of habeas attorneys." They sued the government, demanding that it defend the decision to eject lawyers from Gitmo, making the straight-faced claim that the Amnesty International brochure was a legitimate "report" that was "directly related" to their clients' defense. But their bottom line argument amounted to this: A military commander at a secure overseas military facility in a time of war couldn't remove disruptive lawyers who were inciting captured enemy detainees and endangering the safety and security of military personnel unless he first got permission from a federal judge.

In a sworn affidavit submitted to the D.C. District Court and obtained by the writers of this article in a Freedom of Information Act request, Maj. Gen. Hood did not equivocate when it came to the Amnesty International pamphlet. "The very nature of this document gives tremendous moral support to those who would strike out against our country," he stated. "It is not a factual report. Instead it is filled with second and third hand accounts, photos of protests that were staged, inflammatory photos from Iraq and provocative story captions."

Maj. Gen. Hood noted that many of the captured al Qaeda terrorists held at the camp had been "specifically trained on the Manchester Manual [an al Qaeda training manual discovered at a safe house in Britain]," which "encourages detainees to claim torture and abuse." He warned that "[e]xamples and vignettes of alleged abuse of other detainees" could be used "to fabricate their own claims of abuse and torture."

In fact, from al Qaeda's perspective, the Amnesty International brochure was better than the Manchester Manual. It cued detainees that the abuses at Abu Ghraib "were not an aberration." The brochure told them that images from the Iraqi prison were consistent with "numerous allegations of torture and ill-treatment reported from detention centres in Afghanistan, Iraq and at Guantanamo Bay."

The message to the detainees was clear: If you want to claim you are being tortured, here is a vast menu of examples from which to choose.

But Maj. Gen. Hood's immediate concern about the magazine's "propaganda and misinformation" was the strong potential that it would incite detainees to act out against U.S. personnel in his facility. The Islamic cultural adviser agreed, telling Maj. Gen. Hood that "the tone of the magazine was highly inflammatory" and "would cause a negative reaction, especially amongst the more hard-core terrorist factions within the camp."

That was an understatement. Four months earlier, a core group of detainee leaders recruited as many as 131 detainees to engage in a coordinated hunger strike. The self-starvation was intended to make the detainees look like victims, win sympathy for their cause, and force the U.S. government to choose between letting them die or letting them go. The tactic worked to perfection. Human rights activists created a media firestorm with completely fabricated reports about Guantanamo medical staff using "forced feedings" to "torture" detainees.

Ms. Mason herself inflamed tensions with the hunger strikers during a visit to Guantanamo in October 2005. She told one of the detainees, Yousef Al Shehri, that the U.S. government had no court authority to feed him using a nasal tube, according to Justice Department documents. As a result, Al Shehri pulled out his feeding tube, persuaded detainees in his cell block to do the same and exhorted them to physically resist efforts to reinsert the tube. DOJ lawyers would later argue that Ms. Mason's advocacy "resulted in a disruption of camp security and a potential threat to the health of eight hunger-striking detainees."

Despite this history, Paul, Weiss attorneys were apparently so confident that the DOJ could be cowed into submission that they provided the court with exhibits—letters, emails and court filings—documenting gross violations of the protective order by other habeas attorneys whose access was not cut off, ostensibly to show that Paul, Weiss was being treated unfairly.

We obtained Justice Department accounts of some of those incidents under a Freedom of Information Act request. Examples included an incident in which a lawyer sent his detainee client the transcript of a virulently anti-American speech that compared military physicians to Joseph Mengele, the Nazi doctor of Auschwitz, called DOJ lawyers "desk torturers" and suggested that the "abuses carried out by U.S. forces at Abu Ghraib . . . could involve the President in the commission of war crimes."

Other incidents listed in the FOIA material included: a lawyer who was caught in the act of making a hand-drawn map of a detention camp's layout, including guard towers; a lawyer who sent a letter to his detainee client telling him that "we cannot depend on the military to do the right thing" and conveying his message of support to other detainees who were not his clients; lawyers who posted photos of Guantanamo security badges on the Internet; lawyers who provided news outlets with "interviews" of their clients using questions provided in advance by the news organization; and a lawyer who gave his client a list of all the detainees.

If the stated intent was to show that the government had singled out Paul, Weiss attorneys, the unstated purpose was to demonstrate something even more significant to the government's lawyers. They were outnumbered and outgunned. The Gitmo bar had grown to include some 400 lawyers from as many as 50 law firms that were subsidized by the millions of dollars earned from their paying corporate clients. They had the legal talent, the support of the international press and the judicial wind at their backs. They could bury the DOJ in paper. If one lawyer was taken out, she could be replaced by another.

"They were beaten down by the litigation," said the former Defense Department official who asked to remain anonymous. "If I'd gotten caught passing war news to detainees, my security clearance would have been pulled."

But why would American lawyers, after 9/11 and the brutal slaughter of 3,000 fellow citizens, hand members of al Qaeda information about the war in Iraq and Afghanistan? The records indicate that attorneys were printing news off the Internet and passing it to detainees at the same time that U.S. forces in Iraq were sustaining devastating casualties from IED attacks.

"They would bring contraband in their briefcases, in manila envelopes," an active-duty officer familiar with Defense Department records on attorney access violations told us. "They did it because they knew the detainees were hungry for news and they wanted to establish trust."

The desire to establish trust is evident in Ms. Mason's own affidavit to the D.C. court concerning the status of her firm's representation of Saudi detainees in habeas cases. The attorneys couldn't remain as attorney of record and go forward with a habeas case if the detainees wouldn't cooperate with them. "While we have made substantial progress in developing rapport and trust with our clients," she stated, "we have not yet been able to secure from all of them written acknowledgment of our representation." She attributes this to "torture and abuse . . . at the hands of the American military" as opposed to the Islamist mindset that sees no distinction between American attorneys in suits and American personnel in uniform. Indeed, court records reveal that Yousef Al Shehri wrote to the court, "expressing in no uncertain terms that he desires neither representation, nor a lawsuit on his behalf."


Ultimately, the government would reach a settlement with the Paul, Weiss lawyers. Ms. Mason and her team were allowed to resume their trips to Guantanamo in May 2006. But the DOJ's surrender emboldened the Gitmo bar even further. Last August, the Washington Post reported that three lawyers defending Khalid Sheikh Mohammed and his 9/11 co-conspirators showed their clients photographs of covert CIA officers in an attempt to identify the individuals who interrogated them after they were captured overseas. Lawyers working for the John Adams Project, formed to support the legal team representing KSM and his cohorts, provided the defense attorneys with the photographs, according to the Post. None of the attorneys under investigation were identified in the Post report.

In the last several days, the debate has taken a detour about what some have called a "shameful attack" on the "noble attorneys" who have chosen to defend "unpopular people." A national security organization, Keep America Safe (of which Ms. Burlingame is a board member), used the phrase "Al Qaeda 7" in an Internet ad to describe seven unnamed Department of Justice political appointees who previously represented or advocated on behalf of terrorists.

The purpose of the ad was to prod Attorney General Eric Holder to disclose to the public which detainee attorneys he has hired to work on behalf of the American people, and whether they are involved in the policy-making decisions that will affect the nation's safety and security while we are at war. He was asked for this information by several members of the U.S. Senate, and he was stonewalling.

The attorney general has the right to select whomever he chooses to work in his department, and to set policy as he sees fit. He does not, however, have the right to do it in the dark. The policies he advances must face the scrutiny of the American people, his No. 1 client.

The public has a right to know, for instance, that one of Mr. Holder's early political hires in the department's national security division was Jennifer Daskal, a former attorney for Human Rights Watch. Her work there centered on efforts to close Guantanamo Bay, shut down military commissions—which she calls "kangaroo courts"—and set detainees who cannot be tried in civilian courts free. She has written that freeing dangerous terrorists is an "assumption of risk" that we must take in order to cleanse the nation of Guantanamo's moral stain. This suggests that Ms. Daskal, who serves on the Justice Department's Detainee Policy Task Force, is entirely in sync with Mr. Holder and a White House whose chief counterterrorism official (John Brennan) considers a 20% detainee recidivism rate "not that bad."

It is entirely legitimate to ask who else among Mr. Holder's hires from the Gitmo bar is shaping or influencing national security policy decisions. Meanwhile, the public can decide whether the lawyers at Paul, Weiss who are volunteering at Guantanamo are an example of the legal profession's noblest traditions.

We spoke to Ms. Mason's executive assistant on Friday seeking her comments. Multiple calls and emails had not been returned as this paper went to press last night.

On Feb. 20, 2007, a post on the Paul, Weiss Web site proudly announced "Paul, Weiss achieves more victories for Guantanamo detainees." Two detainees were released from Gitmo to their home in Saudi Arabia. One was Majeed Abdullah Al Joudi, a recipient of the Amnesty International "report." The Web site needs an update. The Pentagon has identified Al Joudi as a "confirmed" recidivist who is "directly involved" with the facilitation of "terrorist activities."

Yousef Al Shehri, the detainee who led his cell block in the feeding tube rebellion, was also released in November 2007. In early 2009 he was listed on the Saudi Kingdom's list of 85 "most wanted" extremists. Yousef was killed last October during a shootout with Saudi security forces on his way to a martyrdom operation. He and another jihadist, disguised as women and wearing suicide vests, killed a security officer in the clash. Yousef's brother-in-law, Said Al Shehri, also released from Gitmo, is currently the second in command of al Qaeda in the Arabian Peninsula, the branch that launched the Christmas Day airline attack last year.

Ms. Burlingame, a former attorney, is the sister of Charles F. "Chic" Burlingame III, pilot of American Airlines flight 77, which was crashed at the Pentagon on September 11, 2001. She is a co-founder of Keep America Safe. Mr. Joscelyn is a senior fellow at the Foundation for Defense of Democracies.

[ccp]

***The public has a right to know, for instance, that one of Mr. Holder's early political hires in the department's national security division was Jennifer Daskal, a former attorney for Human Rights Watch. Her work there centered on efforts to close Guantanamo Bay, shut down military commissions—which she calls "kangaroo courts"—and set detainees who cannot be tried in civilian courts free. She has written that freeing dangerous terrorists is an "assumption of risk" that we must take in order to cleanse the nation of Guantanamo's moral stain. This suggests that Ms. Daskal, who serves on the Justice Department's Detainee Policy Task Force, is entirely in sync with Mr. Holder and a White House whose chief counterterrorism official (John Brennan) considers a 20% detainee recidivism rate "not that bad."***

I hear the legal arguments on cable back and forth concerning Liz Cheney's views etc.
I don't think one needs to be an attorney to understand the reasoning of the arguments one way or the other.
That said I don't think "justice" is served with having endless streams of high priced and high priced attorneys argue ad nauseum every conceivable position as some sort of defense.
I cannot believe most Americans would not agree that the legal strategy can be reduced to a form of bullying adverseries for money or political or other form of idealogy.

I also beleive that most Americans would agree this legaleeze stuff is a form of weakness on our battle against our enemies - not a strenght as the left wants us to beleive.

Crafty, as an attorney where do you  come down on this issue?

[ccp]

high priced and high "powered"

Yes I get that much of the work was done - what is the phrase - bono?

Although it is hared to beleive that some of this what not done for some sort of networking advantage either with the gov. or amongst law firms or something else I don't know about such as political gain.

[Crafty_Dog]

My take FWIW:  Even defendants who seem guilty of the nastiest of crimes, deserve able defense. 

That said, one has to be engaged in some serious cranial rectal interface to not suspect that these attorneys are motivated by something other than that; therefore a very fair and very serious question is raised when they are selected to work at DOJ.  The various dubious elements to AG Holder's background and performance on the job add to the stench.

[ccp]

Crafty,

Thanks for your opinion.  I have respect for some attornies.  The medical profession is hardly filled with a total bunch of saints so I don't mean to come off as simply going after attornies.

I don't think we exemplify a system that is a model of a totally fair and great justice process as much as simply *stupid* and laughable to anyone with a brain when we send armies of attornies to defend enemies that even the vast majority of our own citizens could not even AFFORD.

Again, the sheer stupidity of it all...  So let's give our enemies who want to kill us better legal counsel than 95% of our own people could not even afford!?!?

Palin said it right during her RNC speech for VP.  We don't need to defend our nation with legal suits (more or less).

[Crafty_Dog]

As the saying goes "It's not a justice system, it's a legal system."

[Rarick]

Man on the street here.......

I have always regarded Gitmo as a resonably secure place to store active terrorists and their associates until we get to some phase of this war on terror that we can safely release them.  Some of the higher level terrorists might need interrogated, so be it, as long as no permanent harm or disability is caused by the methods.  We are not about revenge or any of that stuff, just keeping combatants off the field until the war is over, and getting what information we can from those who may have useful information.

I see these various attorneys and others as being actively subversive  in the service of the enemy.  we are imprisoning these people in a way accepted globally for several centuries, in accordance with international conventions.  Given these people are working against a long standing, "civilized" agreement, what are they REALLY up to?  Subversion of the current status quo, maybe? which puts them in the same equivalents status as the people in gitmo?  Why are they being listened to, then? THAT is where a lot of my discontent comes from.

I see this as being made a legal/ human rights issue when it is simply a POW issue.  We are treating the POW's we take far better than any of our POW's have EVER been treated.  Our people are often beheaded for the press, and treated with permanently harmful abuse, etc.

So which side is in the right/wrong?  Neither, but one is trying to be generally ethical, and the other is being deliberately brutal.  Which one would you want to be Identified with?

It is strange that Brutal side advocates are finding positions in a "free" government eh? Anothe point of my diquiet and discontent.........

[Crafty_Dog]

Federal Judge Finds N.S.A. Wiretaps Were IllegalBy CHARLIE SAVAGE and JAMES RISEN
Published: March 31, 2010
NYT
 
LinkedinDiggFacebookMixxMySpaceYahoo! BuzzPermalink. WASHINGTON — A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush.

In a 45-page opinion, Judge Vaughn R. Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon, and of two lawyers representing it in 2004. Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said the government was liable to pay them damages.

The ruling delivered a blow to the Bush administration’s claims that its surveillance program, which Mr. Bush secretly authorized shortly after the terrorist attacks of Sept. 11, 2001, was lawful. Under the program, the National Security Agency monitored Americans’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.

The Justice Department said it was reviewing the decision and had made no decision about whether to appeal.

The ruling by Judge Walker, the chief judge of the Federal District Court in San Francisco, rejected the Justice Department’s claim — first asserted by the Bush administration and continued under President Obama — that the charity’s lawsuit should be dismissed without a ruling on the merits because allowing it to go forward could reveal state secrets.

The judge characterized that expansive use of the so-called state-secrets privilege as amounting to “unfettered executive-branch discretion” that had “obvious potential for governmental abuse and overreaching.”

That position, he said, would enable government officials to flout the warrant law, even though Congress had enacted it “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”

Because the government merely sought to block the suit under the state-secrets privilege, it never mounted a direct legal defense of the N.S.A. program in the Haramain case.

Judge Walker did not directly address the legal arguments made by the Bush administration in defense of the N.S.A. program after The New York Times disclosed its existence in December 2005: that the president’s wartime powers enabled him to override the FISA statute. But lawyers for Al Haramain were quick to argue that the ruling undermined the legal underpinnings of the war against terrorism.

One of them, Jon Eisenberg, said Judge Walker’s ruling was an “implicit repudiation of the Bush-Cheney theory of executive power.”

“Judge Walker is saying that FISA and federal statutes like it are not optional,” Mr. Eisenberg said. “The president, just like any other citizen of the United States, is bound by the law. Obeying Congressional legislation shouldn’t be optional with the president of the U.S.”

A Justice Department spokeswoman, Tracy Schmaler, noted that the Obama administration had overhauled the department’s procedures for invoking the state-secrets privilege, requiring senior officials to personally approve any assertion before lawyers could make it in court. She said that approach would ensure that the privilege was invoked only when “absolutely necessary to protect national security.”

The ruling is the second time a federal judge has declared the program of wiretapping without warrants to be illegal. But a 2006 decision by a federal judge in Detroit, Anna Diggs Taylor, was reversed on the grounds that those plaintiffs could not prove that they had been wiretapped and so lacked legal standing to sue.

Several other lawsuits filed over the program have faltered because of similar concerns over standing or because of immunity granted by Congress to telecommunications companies that participated in the N.S.A. program.

By contrast, the Haramain case was closely watched because the government inadvertently disclosed a classified document that made clear that the charity had been subjected to surveillance without warrants.

Although the plaintiffs in the Haramain case were not allowed to use the document to prove that they had standing, Mr. Eisenberg and six other lawyers working on the case were able to use public information — including a 2007 speech by an F.B.I. official who acknowledged that Al Haramain had been placed under surveillance — to prove it had been wiretapped.

Judge Walker’s opinion cataloged other such evidence and declared that the plaintiffs had shown they were wiretapped in a manner that required a warrant. He said the government had failed to produce a warrant, so he granted summary judgment in favor of the plaintiffs.

But Judge Walker limited liability in the case to the government as an institution, rejecting the lawsuit’s effort to hold Robert S. Mueller III, the F.B.I. director, personally liable.

Mr. Eisenberg said that he would seek compensatory damages of $20,200 for each of the three plaintiffs in the case — or $100 for each of the 202 days he said they had shown they were subjected to the surveillance. He said he would ask the judge to decide how much to award in punitive damages, a figure that could be up to 10 times as high. And he said he and his colleagues would seek to be reimbursed for their legal fees over the past five years.

The 2005 disclosure of the existence of the program set off a national debate over the limits of executive power and the balance between national security and civil liberties. The arguments continued over the next three years, as Congress sought to forge a new legal framework for domestic surveillance.

In the midst of the presidential campaign in 2008, Congress overhauled the Foreign Intelligence Surveillance Act to bring federal statutes into closer alignment with what the Bush administration had been secretly doing. The legislation essentially legalized certain aspects of the program. As a senator then, Barack Obama voted in favor of the new law, despite objections from many of his supporters. President Obama’s administration now relies heavily on such surveillance in its fight against Al Qaeda.

The overhauled law, however, still requires the government to obtain a warrant if it is focusing on an American citizen or an organization inside the United States. The surveillance of Al Haramain would still be unlawful today if no court had approved it, current and former Justice Department officials said.

But since Mr. Obama took office, the N.S.A. has sometimes violated the limits imposed on spying on Americans by the new FISA law. The administration has acknowledged the lapses but said they had been corrected.

[Crafty_Dog]

Tearing Away the Veil

 
By JEAN-FRANÇOIS COPÉ
Published: May 4, 2010


MOMENTUM is building in Europe for laws forbidding the wearing of garments that cover the face, like the Islamic burqa and niqab, in public. Just last week, the lower house of the Belgian Parliament overwhelmingly passed a ban on face coverings. And next week, the French Assembly will most likely approve a resolution that my party, the Union for a Popular Movement, has introduced condemning such garments as against our republican principles, a step toward a similar ban.

Amnesty International condemned the Belgian law as “an attack on religious freedom,” while other critics have asserted that by prohibiting the burqa, France would impinge upon individual liberties and stigmatize Muslims, thereby aiding extremists worldwide.

This criticism is unjust. The debate on the full veil is complicated, and as one of the most prominent advocates in France of a ban on the burqa, I would like to explain why it is both a legitimate measure for public safety and a reaffirmation of our ideals of liberty and fraternity.

First, the freedom to dress the way one wants is not what’s at stake here. Our debate is not about a type of attire or the Islamic head scarf that covers the hair and forehead. The latter is obviously allowed in France. The ban would apply to the full-body veil known as the burqa or niqab. This is not an article of clothing — it is a mask, a mask worn at all times, making identification or participation in economic and social life virtually impossible.

This face covering poses a serious safety problem at a time when security cameras play an important role in the protection of public order. An armed robbery recently committed in the Paris suburbs by criminals dressed in burqas provided an unfortunate confirmation of this fact. As a mayor, I cannot guarantee the protection of the residents for whom I am responsible if masked people are allowed to run about.

The visibility of the face in the public sphere has always been a public safety requirement. It was so obvious that until now it did not need to be enshrined in law. But the increase in women wearing the niqab, like that of the ski mask favored by criminals, changes that. We must therefore adjust our law, without waiting for the phenomenon to spread.

The permanent concealment of the face also raises the question of social interactions in our democracies. In the United States, there are very few limits on individual freedom, as exemplified by the guarantees of the First Amendment. In France, too, we are passionately attached to liberty.

But we also reaffirm our citizens’ equality and fraternity. These values are the three inseparable components of our national motto. We are therefore constantly striving to achieve a delicate balance. Individual liberty is vital, but individuals, like communities, must accept compromises that are indispensable to living together, in the name of certain principles that are essential to the common good.

Let’s take one example: The fact that people are prohibited from strolling down Fifth Avenue in the nude does not constitute an attack on the fundamental rights of nudists. Likewise, wearing headgear that fully covers the face does not constitute a fundamental liberty. To the contrary, it is an insurmountable obstacle to the affirmation of a political community that unites citizens without regard to differences in sex, origin or religious faith. How can you establish a relationship with a person who, by hiding a smile or a glance — those universal signs of our common humanity — refuses to exist in the eyes of others?

Finally, in both France and the United States, we recognize that individual liberties cannot exist without individual responsibilities. This acknowledgment is the basis of all our political rights. We are free as long as we are responsible individuals who can be held accountable for our actions before our peers. But the niqab and burqa represent a refusal to exist as a person in the eyes of others. The person who wears one is no longer identifiable; she is a shadow among others, lacking individuality, avoiding responsibility.

From this standpoint, banning the veil in the street is aimed at no particular religion and stigmatizes no particular community. Indeed, French Muslim leaders have noted that the Koran does not instruct women to cover their faces, while in Tunisia and Turkey, it is forbidden in public buildings; it is even prohibited during the pilgrimage to Mecca. Muslims are the first to suffer from the confusions engendered by this practice, which is a blow against the dignity of women.

Through a legal ban, French parliamentarians want to uphold a principle that should apply to all: the visibility of the face in the public sphere, which is essential to our security and is a condition for living together. A few extremists are contesting this obvious fact by using our democratic liberties as an instrument against democracy. We have to tell them no.

Jean-François Copé is the majority leader in the French National Assembly and the mayor of Meaux.

[Crafty_Dog]

Question presented:  What of Glenn Beck's hypothetical last night in the context of the Kagan nomination and her statement in support of treating someone accused of raising money for AQ as an enemy combatant:  What if another Timothy McVeigh strikes?  Can the State use what Mukasey describes below to go after those of us who actively support the 912 movement/the Tea Party?

====================================

Shazad and the pre-911 paradigm
By MICHAEL B. MUKASEY
Some good news from the attempted car bombing in Times Square on May 1 is that—at the relatively small cost of disappointment to Broadway theater-goers—it teaches valuable lessons to help deal with Islamist terrorism. The bad news is that those lessons should already have been learned.

One such lesson has to do with intelligence gathering. Because our enemies in this struggle do not occupy a particular country or location, intelligence is our only tool for frustrating their plans and locating and targeting their leaders. But as was the case with Umar Faruk Abdulmutallab, who tried to detonate a bomb aboard an airplane over Detroit last Christmas Day, principal emphasis was placed on assuring that any statements Faisal Shahzad made could be used against him rather than simply designating him an unlawful enemy combatant and assuring that we obtained and exploited any information he had.

On Sunday, Attorney General Eric Holder said that in regard to terrorism investigations he supports "modifying" the Miranda law that requires law enforcement officials to inform suspects of their rights to silence and counsel. But his approach—extension of the "public safety exemption" to terror investigations—is both parsimonious and problematic. The public safety exemption allows a delay in Miranda warnings until an imminent threat to public safety—e.g., a loaded gun somewhere in a public place that might be found by a child—has been neutralized. In terror cases it is impossible to determine when all necessary intelligence, which in any event might not relate to an imminent threat, has been learned.

The lesson from our experience with Abdulmutallab, who stopped talking soon after he was advised of his rights and did not resume for weeks until his family could be flown here to persuade him to resume, should have been that intelligence gathering comes first. Yes, Shahzad, as we are told, continued to provide information even after he was advised of his rights, but that cooperation came in spite of and not because of his treatment as a conventional criminal defendant.

Moreover, once Shahzad cooperated, it made no more sense with him than it did with Abdulmutallab to publicize his cooperation and thereby warn those still at large to hide and destroy whatever evidence they could. The profligate disclosures in Shahzad's case, even to the point of describing his confession, could only hinder successful exploitation of whatever information he provided.

The Shahzad case provides a reminder of the permanent harm leaks of any kind can cause. An Associated Press story citing unnamed law enforcement sources reported that investigators were on the trail of a "courier" who had helped provide financing to Shahzad.

A courier would seem oddly out of place in the contemporary world where money can be transferred with the click of a mouse—that is, until one recalls that in 2006 the New York Times disclosed on its front page a highly classified government program for monitoring electronic international money transfers through what is known as the Swift system.

That monitoring violated no law but was leaked and reported as what an intelligence lawyer of my acquaintance referred to as "intelliporn"—intelligence information that is disclosed for no better reason than that it is fun to read about, and without regard for the harm it causes. Of course, terrorists around the world took note, and resorted to "couriers," making it much harder to trace terrorist financing.

In the hours immediately following the discovery and disarming of the car bomb, media outlets and public figures fell all over themselves to lay blame as far as possible from where it would ultimately be found. Secretary of Homeland Security Janet Napolitano suggested the incident was entirely isolated and directed her agency's personnel to stand down. New York Mayor Michael Bloomberg sportingly offered to wager a quarter on the proposition that the bomb was the work of a solitary lunatic, perhaps someone upset over passage of the health-care bill, and much merriment was had over how primitive the bomb had been and how doomed it was to fail.

This sort of reaction goes back much further than this administration. Consider the chain of events leading to the 1993 World Trade Center bombing and eventually 9/11.

In November 1990, Meir Kahane, a right-wing Israeli politician, was assassinated after delivering a speech at a Manhattan hotel by El-Sayid Nosair, quickly pigeonholed as a lone misfit whose failures at work had driven him over the edge. The material seized from his home lay largely unexamined in boxes until a truck bomb was detonated under the World Trade Center in 1993, when the perpetrators of that act announced that freeing Nosair from prison was one of their demands.

Authorities then examined the neglected boxes and found jihadi literature urging the attacks on Western civilization through a terror campaign that would include toppling tall buildings that were centers of finance and tourism. An amateur video of Kahane's speech the night he was assassinated revealed that one of the 1993 bombers, Mohammed Salameh, was present in the hall when Nosair committed his act, and the ensuing investigation disclosed that Nosair was supposed to have made his escape with the help of another, Mahmoud Abouhalima, who was waiting outside at the wheel of a cab.

Nosair jumped into the wrong cab and the terrified driver pulled over and ducked under the dashboard, at which point Nosair tried to flee on foot and was captured. Salameh was captured when the vehicle identification number on the truck that carried the bomb led investigators to a rental agency, where he showed up days later to try to retrieve the deposit on the truck so that he could finance his escape.


Despite the toll from the first World Trade Center blast—six killed, hundreds injured, tens of millions of dollars in damage—and the murder of Kahane, much sport was made of how inept the perpetrators were.

Nosair and the 1993 Trade Center bombers were disciples of cleric Omar Abdel Rahman, known as the "blind sheikh," who was tried and convicted in 1995 along with nine others for conspiring to wage a war of urban terror that included not only that bombing and the Kahane assassination but also a plot to bomb simultaneously the Holland and Lincoln Tunnels, the George Washington Bridge and the United Nations.

One of the unindicted co-conspirators in that case was a then-obscure Osama bin Laden, who would declare in 1996 and again in 1998 that militant Islamists were at war with the United States. In 1998, his organization, al Qaeda, arranged the near-simultaneous bombing of American Embassies in Kenya and Tanzania.

Despite the declaration of war and the act of war, the criminal law paradigm continued to define our response. Along with immediate perpetrators, and some remote perpetrators including Khalid Sheikh Mohammed, bin Laden was indicted, and the oft-repeated vow to "bring them to justice" was repeated. Unmoved, and certainly undeterred, bin Laden in 2000 unleashed the attack in Yemen on the destroyer USS Cole, killing 17.

That was followed by Sept. 11, 2001, and it appeared for a time that Islamist fanaticism would no longer be greeted with condescending mockery. To the phrase "bring them to justice" was added "bring justice to them." The country appeared ready to adopt a stance of war, and to be ready to treat terrorists as it had the German saboteurs who landed off Long Island and Florida in 1942—as unlawful combatants under the laws of war who were not entitled to the guarantees that the Constitution grants to ordinary criminals.

There have been more than 20 Islamist terrorist plots aimed at this country since 9/11, including the deadly shooting by U.S. Army Maj. Nidal Hasan, those of Abdulmutallab and Shahzad, and those of Najibullah Zazi and his cohorts, Bryant Neal Vinas and his, against commuter railroads and subways in New York; of plotters who targeted military personnel at Fort Dix, N.J., Quantico, Va., and Goose Creek, S.C., and who murdered an Army recruiter in Little Rock, Ark.; of those who planned to blow up synagogues in New York, an office building in Dallas, and a courthouse in Illinois, among others.

Yet the pre-9/11 criminal law paradigm is again setting the limit of Attorney General Holder's response, even to the point of considering the inapposite public safety exception to Miranda as a way to help intelligence gathering. He continues to press for a civilian trial for Khalid Sheikh Mohammed and others who had long since been scheduled to be tried before military commissions.

A significant lesson lurking in Shahzad's inadequacy, and the history that preceded it, is that one of the things terrorists do is persist. Ramzi Yousef's shortcomings in the first attempt to blow up the World Trade Center were made up for by Khalid Sheikh Mohammed. We should see to the good order of our institutions and our attitudes before someone tries to make up for Faisal Shahzad's shortcomings.

Mr. Mukasey was attorney general of the United States from 2007 to 2009.
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[G M]

Question presented:  What of Glenn Beck's hypothetical last night in the context of the Kagan nomination and her statement in support of treating someone accused of raising money for AQ as an enemy combatant:  What if another Timothy McVeigh strikes?  Can the State use what Mukasey describes below to go after those of us who actively support the 912 movement/the Tea Party?

Unless you knowingly raise money for the Timothy McVeigh or a terrorist group that espouses your ideals, there isn't anything illegal in lawful political speech.

[Crafty_Dog]

Understood, of course.  But what if Progressives are in charge and start defining us as terrorist threats, e.g. as was seen in that Homeland Security report a few months back and this logic is already established for Islamo-fascism?