Obama's Terrorism problem: Enemy Combatants; Not Ordinary Criminals !

This administration continues to act in a reckless and inconsistent manner when it comes to the issue of how to detain and prosecute TERRORISTS ... enemy combatants, usually non-US citizens that have no Miranda rights and should be tried by military commissions and not in US civilian courts.

Obama's (and Holder's) policies are incoherent ... it is lunacy.

Here's some more commentary on the issue:

It's Not Yet Friday, But It Is New Year's Eve — What Better Time to Release an Iran-Backed Terror Master Who Murdered American Troops? [Andy McCarthy]

I can't believe I am writing this while Iranian tyrants are brutally suppressing a revolt by the Iranian people . . . and only days after the Obama administration made a fiasco of a terrorist attack that nearly killed 289 people.

Back in the early summer, I wrote about how, even as the Iranian regime continued killing American troops, the Obama administration had engaged in shameful negotiations with an Iran-backed terror network (the League of the Righteous) in Iraq — negotiations that resulted in the release of Laith Qazali, one of the terrorists responsible for the murders of five American soldiers in Karbala, in exchange for the remains of two British hostages.

Shortly thereafter, the Obama administration released the "Irbil Five," commanders from the Iranian IRGC's elite "Quds Force" who had been captured by our military after coordinating terrorist attacks in Iraq that have killed hundreds of American soldiers and Marines.

Today, New Year's Eve, while everyone's attention is understandably on family and friends, we learn (thanks to the ever alert Bill Roggio, reporting on the Standard's blog) that the administration has now released Qais Qazali, Laith's brother, who is the head of the Iran-backed terror network, in addition to a hundred other terrorists. In violation of the long-standing, commonsense policy against capitulating to kidnappers and terrorists because it just encourages more hostage-taking and murder, the terrorists were released in exchange for a British hostage and the remains of his three contract guards (whom the terrorists had murdered).

So, as the mullahs, America's incorrigible enemies, struggle to hang on, we're giving them accommodations and legitimacy. And the messages we send? Terrorize us and we'll negotiate with you. Kill American troops or kidnap civilians and win valuable concessions — including the release of an army of jihadists, and its leaders, who can now go back to targeting American troops.

As Bill elaborated in the Long War Journal: “We let a very dangerous man go, a man whose hands are stained with US and Iraqi blood,” a military officer said. “We are going to pay for this in the future.”

It is just astonishing.



The 'Fire Napolitano' Debate [Andy McCarthy]

A couple of months back, Sean Hannity invited me on his nightly panel on a special show that was dedicated to ten of the more problematic figures in the administration — Van Jones, Kevin Jennings, Carol Browner, John Holdren, and some others. (Napolitano was not egregious enough to be included.) Sean pressed me on whether this one or that one should be fired, and I just shrugged my shoulders. The suggestion (not by Sean, but in a lot of the public debate) had been that these people had not been properly vetted. My reaction was that they had been extensively vetted — the "czars," like Jones, were made czars rather than cabinet nominations precisely because they were the people President Obama wanted but he knew they'd never get through a confirmation hearing. Sure, you could fire those ten, but the same guy who picked them would be picking their replacements.

I never thought we should have created a Department of Homeland Security. People's memories are short. The original idea behind DHS was to solve "the Wall" problem — the impediments to intelligence-sharing that were making the FBI, our domestic intelligence service, ineffective. But while DHS was being debated and built, the FBI and the intelligence community furiously called on their allies on Capitol Hill and protected their turf. By the time DHS formally came into being, they made sure it had no intelligence mission — in fact, it had no real clear mission at all except to be the unwieldy home of a huge agglomeration of federal agencies. Basically, we moved the deck chairs around on the Titanic but did nothing to improve homeland security.
Napolitano is an apt representation of Obama-style detachment from national security: She doesn't know where the 9/11 hijackers came from; she doesn't know illegal immigration is a criminal offense; she won't utter the word "terror" (it's a "man-caused disaster," just like, say, a forest fire); she thinks the real terrorists are "right-wing extremists" aided and abetted by our soldiers returning home from their missions; when a jihadist at Fort Hood massacres more people than were killed in the 1993 World Trade Center bombing, she won't call it terrorism and worries mostly about racist blow-back against innocent Muslims; she doesn't see any indications of a larger terrorist conspiracy even after a captured — er, arrested — terrorist tells agents he was groomed for the airplane operation by al Qaeda in Yemen; she thinks the "system worked" on Christmas when every element of it failed; and even her walk-back on the "system worked" comment — i.e., that it worked after the fact because all the planes then in the air were notified to take extra precautions "within 90 minutes" of the attack — is pathetic. You may recall that on 9/11, the first plane hit the World Trade Center at 8:46 a.m. and the second at 9:16 a.m.; the Pentagon was struck at 9:37 a.m., and, thanks to the heroic passengers of Flight 93, the last plane went down a little after 10 a.m. — about 20 minutes from its target in Washington. A lot can happen in 90 minutes.

When DHS came into being, a good friend of mine put it perfectly: "We already have a Department of Homeland Security and its address is 1600 Pennsylvania Avenue." It is there, not at DHS, that the problem resides. The President has in place exactly the team he wants. To clamor for Napolitano's firing when she is just carrying out the boss's program is to shift the blame from where it belongs.

12/30 04:47 PM


Enemy Combatants, Not Criminal Defendants [Andy McCarthy]

Marc has already made a lot of the points I'd like to make in his response to Josh Marshall. Let me just make a few others.

It's remarkable to hear Obama's apologists defend him on the ground that he's simply doing what Bush did when Obama's appeal for most of them was that he was the anti-Bush. But, in any event, it wasn't just Richard Reid. The Bush administration also turned John Walker Lindh and Zacarias Moussaoui over to the criminal justice system. These decisions were what are known in the biz as mistakes.

I was still at DOJ when Reid and Lindh were disposed of, but I was very critical of the decision to prosecute Moussaoui in civilian court — often calling him the "poster child for military commissions." On many panels I was on at the time, Bush critics pointed to the disparate treatment of Moussaoui and Padilla — the first an alien combatant apprehended in the U.S. but given a civilian trial, the second an American citizen apprehended in the U.S. but made an enemy combatant. They argued that the administration's standards were incoherent and arbitrary. I thought there was a lot of persuasive force to that contention. But the mistake — as the eventual trial showed — was treating Moussaoui as a criminal defendant, not treating Padilla as an enemy combatant.

Admittedly, I'm predisposed to be sympathetic to Bush, but here I think it's warranted. These cases happened very close to 9/11. I was still in government, so I know we were scrambling. The November 2001 executive order authorizing the military commissions did not get them up and running. That took time — and the Defense Department had to do it while trying to fight a war. The Justice Department circa 2001-03 was thus in a very strong position to argue that it had significant experience handling terrorism cases while DoD still hadn't gotten its act together. That was true, and remember that Reid and Lindh pled guilty, so the cases were basically over before you knew they were on. But Justice vastly overrated its ability to control the amount of intelligence that the courts would order disclosed in the Moussaoui case. It was a circus, and if he hadn't pled guilty it might have been a disaster.

Now, however, we have eight years of experience, including the cautionary Moussaoui tale. There are no longer any excuses; the right answer is obvious: If preventing terrorist attacks is our priority, we have to be in a law-of-war rather than a criminal-justice model.

This should not be hard to swallow: President Obama occasionally acknowledges that we are nation at war, and Congress has overwhelming authorized the use of force against al Qaeda and its confederates. If we capture an al Qaeda operative, the default position must be that he is an enemy combatant. We can then detain and interrogate him without the interference of a defense lawyer. Defense lawyers shut down effective interrogation — any competent defense lawyer will tell you that, and Michael Ratner, the head of the leftist Center for Constitutional Rights that has coordinated representation from the combatants, has flatly admitted that a goal of interposing lawyers is to prevent the government from being able to interrogate the detainees.
Enemy combatants should be tried by military commission, but even if the President insists that he wants the civilian courts to be his default system for prosecution, that does not mean they have to be his default system for detention. As the cases of Padilla and al-Marri demonstrate, holding a combatant as an enemy combatant, even for a period of years, is not a bar to eventual prosecution in the civilian system.

Detention in the civilian system not only shuts down intelligence collection; it empowers the terrorist and helps his confederates. A terrorist submitted to the criminal justice system immediately after arrest must be brought to court and have counsel assigned promptly — generally, within six hours. As a defendant, the terrorist is empowered because once he has counsel and a case to fight, he realizes he has cards to play — he is incentivized to hold back the most critical, fresh, operational intelligence in order to pressure the prosecutors into dropping charges, dropping the death penalty, and agreeing to various other accommodations. His confederates are empowered because the discovery provided for his criminal case, and then the public trial, provide a window into what the government knows about the enemy.
By contrast, military detention — which the Supreme Court reaffirmed in the 2004 Hamdi case — allows us to take our time, months or years if necessary, to create the atmosphere of isolaton and dependence needed for thorough-going interrogation. Even after the detainee's current, operational intelligence is exhausted and stale, we can continue going back to him to help us identify newly discovered players and break the code on newly discovered plots. (Insiders know much more about how al Qaeda works than government agents, and they usually remain valuable resources for years.) Plus, postponing discovery and trials denies al Qaeda valuable intelligence about our state of knowlege, methods of intelligence gathering, and sources of information.

The law of war framework maximizes our ability to prevent terrorist attacks while maintaining our ability to prosecute at the time and in the system of our choosing — rather than according to the rigors of the civilian system's Speedy Trial Act. Adopting it would enable President Obama to prioritize his first responsibilities — protecting the nation and fighting the war — without compromising his important but subordinate interest in prosecuting war criminals.

That is, it's a no-brainer.
12/30 06:14 PM


Josh Marshall Strikes Out [Marc Thiessen]

Over at Talking Points Memo, Josh Marshall is hard at work exposing his ignorance. He’s got three posts up that attempt to rebut mine here on the Corner regarding the Obama administration’s decision to read Abdulmutallab his rights and give him a lawyer — thus ending his cooperation with investigators.

Where to begin? My post responded to critics who claim Obama is just doing to Abdulmutallab what Bush did to shoe bomber Richard Reid. I pointed out that Reid was captured a few months after 9/11, when we did not know all our options, and explained that the better comparison is Jose Padilla — who was captured in Chicago on a mission from KSM to blow up apartment buildings, designated an enemy combatant, sent to the Charleston brig, and interrogated.

Gotcha, says Josh, pointing out that “President Bush okayed military tribunals a month before Reid tried to blow up the plane.” This is true — and irrelevant. The existence of this order does not prove his point. A decision had been made to create military commissions, but the complex policy questions about who would go to military commissions vs. civilian courts, how to handle detainees captured in the United States vs. those captured abroad, etc., had not been settled, and were not settled for some time. Josh clearly has no idea how this policy developed, or he would not make such ludicrous claims.

Keep reading this post . . .


Re: Let the Man Golf [Rich Lowry]

I'm with Ramesh on Obama's vacation. Also, I don't particularly care what his affect is when he makes a statement about terrorism. It won’t matter how passionate he seems, if the policy is flawed (as it is in this case — it's utterly senseless to kick away an opportunity to learn more from a terrorist who seems vulnerable enough to have given up everything he knows even under mild interrogation). Finally, I think Obama was right to condemn the failures so frankly yesterday. One thing Bush never seemed to realize — partly out of excessive loyalty — is that you don't have to take ownership of every bureaucratic foul-up in your administration. We'll see if Obama's posture results in anything meaningful. What he should be doing is re-evaluating the view of the world he brought to office with him, and re-aligning it with reality given the events of the last year. I'm not hopeful.
12/30 05:42 PM


Risky Business [Cliff May]
A few more thoughts regarding the Talking Points Memo, in which Josh Marshall chides National Review and asserts:

There's no reason beside GOP electoral strategy for not trying AbdulMutallab in a regular American Court.

It is not clear how Josh arrived at this conclusion, but certainly logic was not the vehicle in which he traveled.

Consider:
Umar Farouk Abdulmutallab has reportedly told investigators:
There are more just like me who will strike soon.

If he knows that, he may also be in possession of information that would help investigators locate these individuals before they strike. Indeed, it is likely that UFA attended suicide-bomber school with some of them in Yemen between August and September.

But because UFA is being treated as a criminal suspect to be tried in a regular American court, he has been told he has a “right to remain silent.” And his attorney, presumably, has told him to exercise that right until such time as it is possible to determine how much leniency his cooperation may be worth.

Keep reading this post . .


Charles Krauthammer's Take [NRO Staff]

From Fox News on the last night of 2009:
On the systemic failures surrounding the Christmas Day bombing:

To me, the scandal is what happened after this guy was apprehended. He got sent to a civilian jail, lawyered up, and he's not speaking.

He is the guy who allegedly had said immediately after he was apprehended that there are others like him in Yemen who are training [for similar suicide missions]. He has information on all this.

Instead of treating him as an enemy combatant, we have a mania in this administration of treating people like him as a criminal — and we lose all access to any information which would save American lives.

New Poll: 58 Percent Say Waterboard Abdulmutallab, 71 Percent Say Hand Him to the Military [Marc Thiessen]

New Rasmussen poll:
Fifty-eight percent (58%) of U.S. voters say waterboarding and other aggressive interrogation techniques should be used to gain information from the terrorist who attempted to bomb an airliner on Christmas Day. A new Rasmussen Reports national telephone survey finds that just 30% oppose the use of such techniques, and another 12% are not sure.

Men and younger voters are more strongly supportive of the aggressive interrogation techniques than women and those who are older. Republicans and voters not affiliated with either major party favor their use more than Democrats.

Seventy-one percent (71%) of all voters think the attempt by the Nigerian Muslim to blow up the airliner as it landed in Detroit should be investigated by military authorities as a terrorist act. Only 22% say it should be handled by civilian authorities as a criminal act, as is currently the case.

As my old boss, Secretary Rumsfeld used to say, Americans have a pretty good “inner gyroscope.” It likely would not be necessary to use the waterboard to get Abdulmutallab to talk — only three terrorists underwent it and only 30 had any enhanced techniques used at all. But the vast majority of Americans have it right: You don’t put an enemy combatant who just committed an act of war into the criminal-justice system — and you certainly don’t give him a lawyer and tell him, “You have the right to remain silent.” You make him tell you what he knows so you can prevent new attacks.

— Marc Thiessen’s new book, Courting Disaster: How the CIA Kept America Safe and How Barack Obama In Inviting the Next Attack, will be published in January by Regnery


Americans Support Waterboarding [Jonah Goldberg]

Those poll results must be incredibly disheartening for opponents of waterboarding. Not only do 58 percent support it, another 12 percent aren't sure. That means 70 percent of Americans either support waterboarding the Christmas bomber or think it's an open question whether it's necessary. For the record, I'm in the against or not-sure camp. I'd want to know for sure whether other techniques couldn't get relevant information and I'd want a better sense that this guy knows about an imminent threat. Marc's right to note that only three captives were waterboarded for a reason: It should be a last resort. My hunch is that at least some of those 30 percent opposed to waterboarding Abdulmutallab oppose it for the same reason. And I'd bet that if this was a more dramatic ticking-bomb-type case the numbers supporting waterboarding would go up.

This is after two years of glowing speeches from Obama and a relentless media campaign to treat waterboarding as cruel and unusual torture. I think opposition to waterboarding is an honorable point of view, just like opposing the death penalty. But I think opponents to both are going to have to live with the fact that the American people disagree with them now and will continue to do so for the foreseeable future.