Obama's Waffling on Nat'l Security critiqued here ...

Re: Did Obama Reverse Himself on Miranda Rights for Terrorists? [Andy McCarthy]

Dan, the main problem with Obama's above-it-all, government-by-speeches approach, is that the job of a president is not to vote present, observe, and provide us with running commentary. He's not the play-by-play announcer of a game between arch rivals. He is the main participant on one of the teams, who actually has to make decisions. If he doesn't affirmatively make them, he makes them by default — meaning, the system's routine processes will carry on.

I'll have more to say in a column about yesterday's letter by Attorney General Holder to Sen. Mitch McConnell regarding the Christmas bomber case. But the AG's position is basically: These are our procedures (arrest, Miranda, appointment of counsel, civilian indictment, etc.) and we followed them. Obama would like you to believe that he is captive to these procedures, but he's in charge and he can change them — as Lincoln did, FDR did, and Bush did, to name a few.

I'm not a Holder fan, but I give him credit for this: He really does believe prosecution in the civilian justice system is the way to go, even in cases involving alien enemy combatants sent by al-Qaeda to the United States to carry out acts of war during wartime. Vice President Cheney, to the contrary, really believed (and believes) that this law-enforcement orientation doesn't work against wartime enemies, that it thus endangers the country, and that we have to treat a war like a war, with indefinite detention of enemy-combatants and military commissions for war criminals. Holder and Cheney have defended their positions vigorously. As my column will elaborate, I don't think Holder's defense is very persuasive, but at least he's making it. These guys are willing to be accountable for their positions.

Then there's Obama — you know, the guy who actually has decision-making authority. (In the executive branch, all the power is reposed in the president. Everyone else, including the vice president and the attorney general, is just carrying out his policies.) What do we get from our president? We get his already tired routine: Some people say our criminal justice system is not up to the task of dealing with these terrorists. Others say you must give every arrested person Miranda rights and treat them just like shoplifters. I reject this false choice between terrorism and shoplifting.

Well, no, big guy, it's not a false choice. But it is a choice, it has to be made, and you have to make it. If you're going to use our criminal justice system because you think, as is, it is capable of safeguarding the country from terrorists, then, as the attorney general argues, you have to give the terrorists Miranda warnings and be accountable for the fact that you will lose at least five weeks of actionable intel against people who are tying to kill us. If you think the justice system doesn't work for this class of offenders, then you have to try another approach, as VP Cheney urges, and be prepared for the inevitability of caterwauling from the Left (knowing it will be considerably milder than what Cheney had to deal with). But one way or the other, you've got to decide. And if you choose to stay on the golf course while the attorney general handles it, that is a decision to do it the attorney general's way. Obama's decision, not Holder's.


Who Is Wrong, Dennis Blair or Eric Holder? [Daniel Foster]

From the looks of things, it must be one of them.

Consider, in his letter to Senate Republicans yesterday, Attorney General Eric Holder wrote:

On the evening of December 25 and again on the morning of December 26, the FBI informed its partners in the Intelligence Community that Abdulmutallab would be charged criminally, and no agency objected to this course of action. In the days following December 25 – including during a meeting with the President and other senior members of his national security team on January 5 – high-level discussions ensued within the Administration in which the possibility of detaining Mr. Abdulmutallab under the law of war was explicitly discussed. No agency supported the use of law of war detention for Abdulmutallab, and no agency has since advised the Department of Justice that an alternative course of action should have been, or should now be, pursued.

But in testimony in before the Senate Homeland Security Committee, Director of National Intelligence Dennis Blair, FBI Director Robert S. Mueller III, National Counterterrorism Center Director Michael E. Leiter and Homeland Security Secretary Janet Napolitano said they were not consulted about the charging decision.

Blair, Mueller, Leiter, and Napolitano all fall under one or both of the descriptions "partners in the intelligence community" and "senior members of [Obama's] national security team," and all four claim they were not consulted. Could they all be mistaken?


Krauthammer's Take [NRO Staff]

On Eric Holder’s letter regarding the interrogation of the Christmas Day bomber:

In that letter, Holder [says] he followed the precedent of the Bush administration. It's true that with Richard Reid … he was Mirandized, he was treated as a civilian. But it was a mistake. It happened three months after 9/11, and the military commission system hadn't been established. . .

Here we are eight years later where we know that's not the way to go, and they repeat the error and defend it.

They also had said there was a meeting — Holder said there was a meeting on January 5th involving the president, all the senior members of the security cabinet on this issue, and nobody even raised the issue of having him held under the laws of war. . .

Why it [Mirandizing Abdulmutallab] was done in the first place is a mystery and why it wasn't undone and why nobody at a senior level, including the president, had suggested undoing it and having him interrogated without him having the right of silence, is really quite puzzling.


The Attorney General Speaks — and Says Nothing [Bill Burck and Dana Perino]

Attorney General Eric Holder has penned a five-page response to senators who demanded answers about his decision to Mirandize and charge Umar Farouk Abdulmutallab, the Christmas Day bomber, as a criminal defendant. It is a full-bore justification of the law-enforcement approach to combating terrorism, and despite its length, it does nothing to solve his problems.

Near the beginning of the letter, Holder writes: “I am confident that, as a result of the hard work of the FBI and our career federal prosecutors, we will be able to successfully prosecute Mr. Abdulmutallab under the federal criminal law.” No one has ever doubted that. Even if Abdulmutallab had never uttered a word in response to questioning, there were 200 witnesses on the plane he tried to blow up, not to mention the defective bomb discovered in his underpants, which should provide plenty of evidence to prosecute and convict him.

They didn’t need a confession to convict him, so why Mirandize him at all? Well, Holder explains, everyone did everything by the book. Again, no one doubts that the Justice Department followed its internal system to a T. But as one of us has discussed, the system itself is a big part of the problem, because it excludes the intelligence services from participation and prioritizes law-enforcement interests over intelligence gathering when a foreign terrorist is captured on U.S. soil.
Keep reading this post . . .


More on the Holder Letter [Shannen Coffin]

Among the outrages in Attorney General Holder’s letter to Senator McConnell is his selective memory when it comes to military detention of terrorist suspects captured in the United States. Oddly, the only words highlighted for emphasis in the entire letter are in this sentence: “Since the September 11, 2001 attack, the practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States.” That emphasis is odd because, on the very next page, he explains that two “persons apprehended in recent times have been held under the law of war.” I guess by “without single exception” he meant that two is not one. Just as it is true that a hitter does not get credit for two singles when he hits a double, two exceptions are not “a single exception.”

But that’s not the most outrageous misrepresentation (or omission) when it comes to those cases. Holder explains that Jose Padilla and Ali Saleh Kahlah Al-Marri were both transferred to military custody after being apprehended in the United States and held initially in civilian custody. Holder explains the “lengthy litigation” that ensued: “In Mr. Padilla’s case, the United States Court of Appeals for the Second Circuit found that the President did not have the authority to detain him under the law of war.” Ultimately, Mr. Holder says, Padilla was returned to law enforcement custody, convicted of terrorism charges and sentenced to prison.

Strangely, that is where Holder leaves it, suggesting that Jose Padilla was transferred to law enforcement custody because he couldn’t be held in military detention. Holder is correct that, in 2004, the Second Circuit did indeed hold that the President did not have authority to detain him. It did so not because the President lacks authority to indefinitely detain unlawful enemy combatants captured in the United States. It did so because Padilla, unlike Omar Abdulmuttallab, was a U.S. citizen. More importantly, Holder leaves out a bit of crucial information: The Second Circuit’s decision was vacated by the U.S. Supreme Court, which held that the Second Circuit had no jurisdiction to decide Padilla’s habeas corpus petition, since he was being held outside of that jurisdiction in a brig in South Carolina.

So Holder (apparently deliberately) misrepresents the ultimate holding in the Padilla case. But it gets even worse for Holder’s claims. After the Supreme Court vacated the Second Circuit ruling, Padilla’s case went to the proper court in South Carolina, which also held that Padilla could not be held in military detention. That ruling, too, was eventually thrown out. In Padilla v. Hanft, the U.S. Court of Appeals for the Fourth Circuit ultimately held that the President indeed had the authority to detain Padilla, by virtue of his own constitutional power and the Congressional delegation of authority under the Authorization of Use of Military Force Joint Resolution enacted by Congress in the days after September 11, 2001. Padilla was subsequently transferred to civilian criminal custody while Padilla’s petition for Supreme Court review of that decision was pending, and the Supreme Court eventually declined to hear the case.

Curiously, Holder does not mention any of this subsequent history, leaving his audience with the suggestion that there was some limitation imposed by the Padilla case on the power of the President to designate and detain under the laws of war an enemy combatant captured on U.S. soil. The truth is just the opposite. The Fourth Circuit affirmed the power of the President to detain Jose Padilla — a U.S. citizen detained on U.S. soil — “as a fundamental incident to the conduct of war.” While the Supreme Court never had a chance to hear the case, Holder grossly misrepresented its importance in citing a Second Circuit decision that had no legal value because it had been issued by a court that improperly asserted jurisdiction over the case in the first place.


A Craven Act [Bill Burck & Dana Perino]

Yesterday, we talked about the White House's outrageous decision to leak that the underwear bomber was now cooperating with the FBI. We said that these coordinated leaks would damage national security by, among other things, telling the underwear bomber's fellow terrorists that he had flipped on them and it was time to go to ground.

The White House dismissed this criticism, saying that revealing the underwear bomber's cooperation would not harm national security. Well, apparently FBI director Robert Mueller didn't get the memo. According to this letter from Senator Bond on the Senate Intelligence Committee, Director Mueller on Monday "personally stressed [to Senator Bond] that keeping the fact of his cooperation quiet was vital to preventing future attacks against the United States.

"Less than 24 hours later, the White House was deliberately leaking this very information to the press. What changed in those 24 hours? Nothing except the White House decided the political benefits of leaking outweighed the national security costs.It is hard to imagine a more craven act than this one. The question is whether anyone will be investigated for this leak.

Unlikely.

— Dana M. Perino is former press secretary to Pres. George W. Bush. Bill Burck is a former federal prosecutor and deputy counsel to President Bush.


Politicizing the Justice Department, Chapter 329,721 ... [Andy McCarthy]

I should have mentioned this but I've been too under it. Encounter Books has just released by contribution to its series of pamphlets, which publisher Roger Kimball calls "Encounter Broadsides." Mine is called, "How the Obama Administration Has Politicized Justice." I'm very proud to be a part of the series, which includes contrributions on important topics by Michael Ledeen, Victor Davis Hanson, John Fund, Roy Spencer, Steeve Moore, and David Gratzer — and there are more to come.

What I'm not very proud of, as a Justice Department alum, is that it should be necessary to write such a thing. Alas, there seems always to be more to come on that score, too. Scott Hennen alerts me that Pres. Obama has nominated a DNC member, trial lawyer, and long-time John Edwards crony, Tim Purdon, to be the the next U.S. attorney for North Dakota. Purdon has reportedly never been a prosecutor, and the candidate who was passed over had 12 years' experience in that district's U.S. Attorney's Office. More here.

Of course, as I argue in the pamphlet and said during the trumped up U.S. attorneys firing "scandal" (see here and here), this is the kind of political patronage that goes on all the time with these slots. Still, I can't help but wonder whether, with a Democratic administration now in charge and passing out the goodies to Democrats, the congressional judiciary committees will scorch the earth with subpoenas and demand testimony from top White House staff?