Tag Archives: Eric Holder

Holder unplugged

Reality keeps intruding on Attorney General Eric Holder’s approach to terrorism.

During recent testimony before the House Appropriations Commerce, Justice and Science Subcommittee, Holder had a heated exchange with Rep. John Culberson (R-Texas), over the rights of terrorists – specifically over whether a captured Osama bin Laden would need to be read his Miranda rights in accordance with the civilian prosecution model that Holder continues to advocate. 

Holder’s response: "Let’s deal with reality…we will be reading Miranda rights to the corpse of Osama bin Laden.  He will never appear in an American courtroom…He will be killed by us, or he will be killed by his own people so he’s not captured by us.  We know that."  End of story, according to Holder – no need to allow the question of civilian trials to get hung up on a remote hypothetical…except that a day later, Gen. Stanley McChrystal, commander of US forces in Afghanistan, stated that the goal of US forces remains to capture bin Laden alive, "something that is understood by everyone."  Almost everyone, anyway. 

Reality struck again back when Holder declared – without consulting with local authorities – that 9/11 mastermind Khalid Sheikh Mohammed and his associates, currently held in Guantanamo Bay, would be tried in civilian court in Manhattan.  Public outcry followed, during which New York City Mayor Michael Bloomberg, Police Commissioner Ray Kelly, and Members of Congress from both parties voiced strong opposition to the plan and urged Holder to reconsider.  The White House is now apparently close to reversing Holder’s decision, one that was clearly disconnected from any understanding of the risks associated with trying KSM in the federal court system.    

Remaining unplugged from reality, Holder continues to advocate for the cessation of terrorist detention operations at Guantanamo Bay, notwithstanding the fact that he toured the facility himself, declaring it "well-run". 

I also recently toured the detention facilities at Guantanamo.  They are beyond "well-run" – seeing detention operations up close puts in stark relief the extent to which closing Gitmo would be not only entirely unnecessary, but even counterproductive. 

Far from being the "gulag of our time", as Amnesty International famously intoned, Guantanamo is a place where Joint Task Force personnel go to great lengths to provide for the health and welfare of the detainees.  Detainees are provided up to 6,000 calories a day, with their choice of six hot meal options, including meat certified "halal" and brought in at taxpayer expense.  They have 24/7 access to their own hospital, complete with X-Ray machines, Intensive Care Units, and 500 different brand-name medications. 

The detainee library contains 13,000 books, and thousands of magazines and DVDs, in multiple languages – and every detainee is provided with daily copies of USA Today, Egyptian and Saudi newspapers, and two Korans.  Detainees are offered classes in literacy (Arabic and Pashto), English instruction, art, and "life skills" such as resume writing.  They are allowed to make phone calls every three months, with video setup, for at least one hour.  They are also offered at least four hours of recreation a day, sometimes in groups, depending on the rules of the specific camp – I saw three camps that had outdoor soccer fields, plus several with aerobic exercise equipment, table tennis, and foosball.  Even the maximum security Camp 5 allows compliant detainees three hours of TV a week, on top of their daily four hours of outdoor recreation time. 

Guantanamo allows detainees to practice Islam, providing them with prayer rugs, prayer caps, prayer beads, Korans, and other religious materials.  The recreation yard of Camp 5 (maximum security) has clearly drawn arrows in the cement, pointing towards Mecca.  Group prayer is allowed in Camps 4 and 6 (where communal living is the norm).  All detainees are allowed to observe religious holidays such as Ramadan, for which the detainee kitchen adjusts its own food prep schedule. 

This is only a sampling of how detainees are treated at Guantanamo.  Yet while this treatment may understandably prompt some to feel that the detainees have it too easy, and should be transferred to a "real prison", closing down Gitmo detention operations would leave us less safe.

Gitmo is uniquely secure.  As Admiral Tom Copeman, Commander of the Joint Task Force – Guantanamo, indicated during an interview, "it ain’t easy getting here."  The only people who can go down to Gitmo are those cleared as having business on the base – there is no "getting close" to it.  You are either in Gitmo with proper clearance, or you are at least a three hour flight away in Florida, separated by hundreds of miles of ocean.  There is no "uncontrolled land access" to the base, as Copeman put it. 

Security precautions surrounding detention operations at Gitmo are tight, and down to a science, due to several years of practicing and perfecting these measures there.  For example, journalists have photos they take in Guantanamo screened to ensure that sensitive security measures are not disclosed, and must be escorted at all times.  Guards do not share their names or hometowns with detainees, cannot refer to each other by name when in the presence of detainees, and cannot be photographed above the shoulders without consent.  Guards are not allowed to give an exact figure on the number of detainees currently in any given camp – they can only disclose a camp’s maximum capacity.  While some might argue that these measures could eventually be learned and implemented elsewhere, it is unlikely to be an overnight process.

Even harder to transplant onto another location would be the requisite wartime mindset that characterizes detention operations at Guantanamo.  As Admiral Copeman puts it, at Gitmo "war is being waged inside the wire".  The al Qaeda instruction manual has trained detainees to see confinement as another front in the war – Gitmo personnel are trained to see it the same way, and have been for the past eight years. 

This is all to say nothing of the reality that once detainees touch ground inside the United States, their lawyers will argue that their physical presence here entitles them to a greater range of constitutional protections, in deference to previous Supreme Court rulings on such questions – an argument to which many judges will no doubt be receptive.  Transferring detainees to foreign custody is also extremely risky – according to the Department of Defense, one out of five detainees released from Guantanamo have returned to terrorism. 

The reality of Guantanamo is one with which Attorney General Holder has yet to come to terms.  One has to wonder how much longer he and President Obama will remain disconnected from it just to keep an ill-conceived campaign pledge.


Copyright © 2010 Salem Web Network. All Rights Reserved.

Gitmo’s indefensible lawyers

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?

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.

 

Originally posted at the Wall Street Journal

 

Debra 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. Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.

Gitmo’s indefensible lawyers

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?

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.

 

Originally posted at the Wall Street Journal

 

Debra 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. Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.

My Gift to the Obama Presidency

Barack Obama may not realize it, but I may have just helped save his presidency. How? By winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe.

He sure didn’t make it easy. When Mr. Obama took office a year ago, receiving help from one of the lawyers involved in the development of George W. Bush’s counterterrorism policies was the furthest thing from his mind. Having won a great electoral victory, the new president promised a quick about-face. He rejected "as false the choice between our safety and our ideals" and moved to restore the law-enforcement system as the first line of defense against a hardened enemy devoted to killing Americans.

In office only one day, Mr. Obama ordered the shuttering of the detention facility at Guantanamo Bay, followed later by the announcement that he would bring terrorists to an Illinois prison. He terminated the Central Intelligence Agency’s ability to use "enhanced interrogations techniques" to question al Qaeda operatives. He stayed the military trial, approved by Congress, of al Qaeda leaders. He ultimately decided to transfer Khalid Sheikh Mohammed, the planner of the 9/11 attacks, to a civilian court in New York City, and automatically treated Umar Farouk Abdulmutallab, who tried to blow up a Detroit-bound airliner on Christmas Day, as a criminal suspect (not an illegal enemy combatant). Nothing better could have symbolized the new president’s determination to take us back to a Sept. 10, 2001, approach to terrorism.

Part of Mr. Obama’s plan included hounding those who developed, approved or carried out Bush policies, despite the enormous pressures of time and circumstance in the months immediately after the September 11 attacks. Although career prosecutors had previously reviewed the evidence and determined that no charges are warranted, last year Attorney General Eric Holder appointed a new prosecutor to re-investigate the CIA’s detention and interrogation of al Qaeda leaders.

In my case, he let loose the ethics investigators of the Justice Department’s Office of Professional Responsibility (OPR) to smear my reputation and that of Jay Bybee, who now sits as a federal judge on the court of appeals in San Francisco. Our crime? While serving in the Justice Department’s Office of Legal Counsel in the weeks and months after 9/11, we answered in the form of memoranda extremely difficult questions from the leaders of the CIA, the National Security Council and the White House on when interrogation methods crossed the line into prohibited acts of torture.

Rank bias and sheer incompetence infused OPR’s investigation. OPR attorneys, for example, omitted a number of precedents that squarely supported the approach in the memoranda and undermined OPR’s preferred outcome. They declared that no Americans have a right of self-defense against a criminal prosecution, not even when they or their government agents attempt to stop terrorist attacks on the United States. OPR claimed that Congress enjoyed full authority over wartime strategy and tactics, despite decades of Justice Department opinions and practice defending the president’s commander-in-chief power. They accused us of violating ethical standards without ever defining them. They concocted bizarre conspiracy theories about which they never asked us, and for which they had no evidence, even though we both patiently-and with no legal obligation to do so-sat through days of questioning.

OPR’s investigation was so biased, so flawed, and so beneath the Justice Department’s own standards that last week the department’s ranking civil servant and senior ethicist, David Margolis, completely rejected its recommendations.

Attorney General Holder could have stopped this sorry mess earlier, just as his predecessor had tried to do. OPR slow-rolled Attorney General Michael Mukasey by refusing to deliver a draft of its report until the 2008 Christmas and New Year holidays. OPR informed Mr. Mukasey of its intention to release the report on Jan. 12, 2009, without giving me or Judge Bybee the chance to see it-as was our right and as we’d been promised.

Mr. Mukasey and Deputy Attorney General Mark Filip found so many errors in the report that they told OPR that the entire enterprise should be abandoned. OPR decided to run out the clock and push the investigation into the lap of the Obama administration. It would have been easy for Mr. Holder to concur with his predecessors-in fact, it was critical that he do so to preserve the Justice Department’s impartiality. Instead the new attorney general let OPR’s investigators run wild. Only Mr. Margolis’s rejection of the OPR report last week forced the Obama administration to drop its ethics charges against Bush legal advisers.

Why bother fighting off an administration hell-bent on finding scapegoats for its policy disagreements with the last president? I could have easily decided to hide out, as others have. Instead, I wrote numerous articles (several published in this newspaper) and three books explaining and defending presidential control of national security policy. I gave dozens of speeches and media appearances, where I confronted critics of the administration’s terrorism policies. And, most importantly, I was lucky to receive the outstanding legal counsel of Miguel Estrada, one of the nation’s finest defense attorneys, to attack head-on and without reservation, each and every one of OPR’s mistakes, misdeeds and acts of malfeasance.

I did not do this to win any popularity contests, least of all those held in the faculty lounge. I did it to help our president-President Obama, not Bush. Mr. Obama is fighting three wars simultaneously in Iraq, Afghanistan, and against al Qaeda. He will call upon the men and women serving under his command to make choices as hard as the ones we faced. They cannot meet those challenges with clear minds if they believe that a bevy of prosecutors, congressional committees and media critics await them when they return from the battlefield.

This is no idle worry. In 2005, a Navy Seal team dropped into Afghanistan encountered goat herders who clearly intended to inform the Taliban of their whereabouts. The team leader ordered them released, against his better military judgment, because of his worries about the media and political attacks that would follow.

In less than an hour, more than 80 Taliban fighters attacked and killed all but one member of the Seal team and 16 Americans on a helicopter rescue mission. If a president cannot, or will not, protect the men and women who fight our nation’s wars, they will follow the same risk-averse attitudes that invited the 9/11 attacks in the first place.

Without a vigorous commander-in-chief power at his disposal, Mr. Obama will struggle to win any of these victories. But that is where OPR, playing a junior varsity CIA, wanted to lead us. Ending the Justice Department’s ethics witch hunt not only brought an unjust persecution to an end, but it protects the president’s constitutional ability to fight the enemies that threaten our nation today.

 

John Yoo, a law professor at the University of California, Berkeley and visiting scholar at the American Enterprise Institute, was a Justice Department official from 2001-03. He is the author, among other books, of "Crisis and Command: A History of Executive Power from George Washington to George W. Bush" (Kaplan, 2010).

Gitmo 2

Does this sound familiar?  Barack Obama decides to overturn some element of our national security.  The decision is taken without regard for evidence that the consequences could be dire, on the grounds that the President believes that "our values" necessitate a change.

Only after the presidentially directed change in course is announced is a study launched to figure out how to implement it.  The public is told that, within a year, that job will be done and Team Obama’s revisions will be put into place.

The first time this gambit was employed, the newly installed President announced that, by January 21, 2010, he would close the prison at Guantanamo Bay and relocate its detainees elsewhere.  This was necessary, we were told, because the facility universally known as Gitmo had become identified with torture and inhumane incarceration of enemy combatants.  For these reasons, it served as a "recruiting tool" for al Qaeda and we can’t have that.

The President’s left-wing base was ecstatic.  Most Americans, knowing little if anything about the actual nature of Guantanamo Bay and understandably reluctant to engage in practices that would help our enemies, seemed open to what would, presumably, be a careful review of ways in which Mr. Obama’s order could be safely accommodated.

Flash forward to last Tuesday’s hearing in the Senate Armed Services Committee.  Headlines were made as Secretary of Defense Robert Gates announced that "we have our orders" from the Commander-in-Chief to accept openly homosexual individuals into the military.  Joint Chiefs Chairman Admiral Mike Mullen chimed in, declaring that he was convinced that this was "the right thing to do."  Largely lost in the media adulation was Adm. Mullen’s caveat that he was "speaking personally and for myself alone," (read, the rest of the Joint Chiefs were not necessarily in accord).

The two men then announced that a year-long study would be commissioned to establish how the military would accommodate those who seek to serve but who insist on doing so as avowedly gay, lesbian, bisexual, transgender and "intersexed" (formerly known as hermaphrodite) folks.

Once again, the President’s political base is thrilled.  The Left sees him delivering for them on a longstanding promise at a time when he has abandoned them on many others.  By forcing the military to adapt to the homosexual agenda, they reason it will be vastly more difficult for the rest of society to object to, for example, gay marriage – something 17 states have done as a result of popular referenda.

And, once again, the initial response of many Americans is "whatever."  Few wish to risk being seen as engaging in "discrimination," let alone denounced for "homophobia."  Fewer still may have any real appreciation for what is entailed in military life – for example, the unavoidable nature of "forced intimacy" to which many in uniform are subjected from boot camp on.

In any event, they probably reason that the armed forces will be able to figure out any necessary fixes over a year’s time (which – wink, wink – coincidentally, will extend the implementation of this presidential decision past the mid-term congressional elections).

As it happens, the unveiling of what might be called "Gitmo 2" comes as Mr. Obama’s "Gitmo 1" decision has begun to unravel.  Despite more than a year of trying, Team Obama has not been able to figure out how safely to close the prison in Cuba.  In the meantime, the public has awakened to the ominous security implications of the relocation of "the worst of the worst" from Guantanamo Bay to places like New York City, Standish, Michigan and Thomson, Illinois.  Anger has been heightened by the prospect of affording these terrorists the panoply of constitutional rights enjoyed by American citizens so that they might use our civilian courts as platforms for waging political warfare against us.

Such legitimate concerns have only been further exacerbated by Attorney General Eric Holder’s now-notorious decision – one taken without consulting of the rest of the President’s intelligence, homeland and national defense team – to allow the Christmas Day pantybomber, Umar Farouk Abdulmuttalab, to lawyer-up after just 50 minutes of interrogation.  Scott Brown is a United States Senator today in no small measure because of the public outrage over these examples of national security malpractice, if not outright malfeasance.

In the months ahead, the same awakening and public rejection is likely to attend the President’s decision to force the GLBTI agenda on the military – notwithstanding the political cover afforded by Adm. Mullen’s endorsement.  There are simply no practical answers to the myriad problems associated with integrating people with these many avowed sexual proclivities into military settings of forced intimacy.  And the net result of trying is likely to force vastly more people to leave the services than will be induced to join them.  If one of the principal, stated rationalizations for this exercise is to expand the pool of personnel for the armed forces, it would be madness in time of war to be pursuing it when, on net, the effect will actually deprive it of far larger numbers of skilled, experienced troops and officers.

At the end of the day, Gitmo 2 will probably founder for the same reason Gitmo 1 has:  The Congress must enact legislation to implement these high-handed and ill-considered presidential decisions.  Particularly after the Left’s sweeping repudiation in Massachusetts, majorities on Capitol Hill are unlikely to be found to pay for a new detention facility in the U.S., try detainees in civilian courts here or repeal the still-valid statute barring openly homosexual individuals from the military.

 

Frank J. Gaffney, Jr. is President of the Center for Security Policy, a columnist for the Washington Times and host of the nationally syndicated program, "Secure Freedom Radio."

Obama vs. the all-volunteer military

A battle of enormous portent is about to begin on Capitol Hill.  When the fight to fulfill President Obama’s oft-repeated commitment to repeal what he misleadingly persists in calling "Don’t Ask, Don’t Tell" (DADT) is over, one thing is certain:  Either Mr. Obama’s presidency or the U.S. armed forces will be mortally damaged.

This fight begins against the backdrop of mounting public awareness of, and anxiety about, Barack Obama’s inadequacy as Commander-in-Chief.   Consider several illustrative grounds for such concerns:

Team Obama is severely reducing the power-projection capabilities of the United States with program cuts and a just-announced change in strategy that will embolden America’s enemies and compound the distress felt by its allies about our growing unreliability.  Banking on Secretary of Defense Robert Gates’ Republican credentials and relatively robust reputation, the Obama Pentagon has now formally abandoned the nominal planning guidance to size and equip the force to fight and win major conventional wars (originally two simultaneous ones, subsequently two nearly simultaneous ones, then one-and-a half of them).

Instead, the new direction seems to be:  Don’t worry about, or prepare for, any major wars.  From now on, Team Obama thinks the U.S. military need be able to manage only "overseas contingency operations" along the lines of today’s counter-insurgency campaigns.   Bad timing: China is responding to what it perceives to be our declining power by becoming ever more well-armed, assertive and contemptuous – a formula for serious, and possibly "major," conflict ahead.  

Then, there is the problem of Mr. Obama’s protracted dithering about Afghanistan that produced transparently half-hearted efforts to prevail there and now the prospect of a negotiated surrender of the place to the Taliban.  Throw in growing evidence that our devil-take-the-hindmost abandonment of Iraq is translating into that country becoming little more than an Iranian puppet state and the feeling is palpable:  Confidence in presidential leadership is declining, both among the troops and those who truly support them.

Finally, the public has been horrified by the succession of debacles on the home front as Obama’s team of Attorney General Eric Holder, Homeland Security Secretary Janet Napolitano, Director of National Intelligence Dennis Blair and Homeland Security Advisor John Brennan seem ever-more inept, if not actually malfeasant.  Scott Brown is Senator-elect from Massachusetts today in no small measure due to the popular fury felt on that score.

Incredibly, Barack Obama evidently believes this record is one on which he will be able  to persuade already skittish Blue Dog Democrats and Republicans with a greater affinity for the needs of our military to go along with him on the repeal, not of Bill Clinton’s DADT executive order, but of a statutory prohibition on openly homosexual individuals serving in the U.S. military.  But is he really up to the job of arguing that the fifteen findings why such a ban is necessary that were solemnly and deliberately enacted with President Clinton’s signature somehow no longer apply?

Clearly, having abandoned his left-wing base on issue after issue (most recently by walking back Attorney General Holder’s truly lunatic idea of bringing Khalid Sheikh Mohammed and friends to trial in civilian courts in lower Manhattan) – usually conforming thereby to policies and decisions of the endlessly reviled George W. Bush – Mr. Obama has a problem.  He evidently perceives no choice but to deliver for his supporters by forcing the military to accept not only homosexuals, but bisexuals and even "transgender" and hermaphroditic individuals.  

To this end, Team Obama has been bludgeoning the Pentagon into line for over a year.  And, at a hearing in the Senate Armed Services Committee Tuesday [today], Mr. Gates and the Joint Chiefs Chairman Michael Mullen are expected to sound as though they have gotten their heads around the myriad logistical, operational and personnel obstacles associated with such an initiative.  Taken together with what we are assured is overwhelming public support for ending "discrimination" against homosexuals in the military, these representations are supposed to be sufficient to get the law repealed.  We’ll see.

My guess, though, is that the first tangible steps towards this radical left-wing social experimentation with the only military America has – an all-volunteer one, at that – will trigger a massive backlash against the Administration and its allies on Capitol Hill.  And rightly so.  The public will come to understand that repeal is not a necessary corrective to an irrational matter of discrimination (like the long-repudiated practice of keeping African-Americans out of the armed forces). 

Instead, the current law is an appropriate and necessary reflection of the realities of human nature.  Sexual proclivities, especially in circumstances of forced intimacy (like foxholes, barracks, submarines, etc.), do interfere with the "good order and discipline" required if the military is to be able to recruit, retain, prepare and employ effectively in combat the sort of armed forces we must have in a dangerous world.   This case will be made by more than 1100 senior retired military officers (see FlagandGeneralOfficersfortheMilitary.org.) who will speak for colleagues still in uniform who cannot easily engage in the public debate. 

When the dust settles on this battle, my bet is that the American people and their elected representatives will continue overwhelmingly to oppose conferring on gays, lesbians, bisexuals, transgender individuals and hermaphrodites a non-existent "right" to serve openly in the military.  We will thus avoid breaking the All Volunteer Force and it will be, instead, President Obama’s standing as Commander-in-Chief that has suffered further, grievous and perhaps irreparable harm.

 

Frank J. Gaffney, Jr. is President of the Center for Security Policy, a columnist for the Washington Times and host of the nationally syndicated program Secure Freedom Radio.

Jihad 101

Homeland Security Secretary Janet Napolitano came in for some well-deserved criticism for declaring over the weekend that "the system worked" with respect to Umar Farouk Abdulmutallab’s effort to blow up the plane he was flying from Amsterdam to Detroit.  By Monday, she was backpedalling, acknowledging that "our system did not work in this instance."

In truth, for a lot of Americans, Ms. Napolitano has not had much credibility since she tried to ban "terrorism" from the official lexicon of her department. But arguably the most serious indication that she is wholly ill-equipped to carry out her present responsibilities can be found in another – as yet uncorrected – statement she made on Sunday.  She told CNN’s "State of the Union" that, "Right now, we have no indication [that Abdulmutallab’s actions were] part of anything larger."

Not "part of anything larger"?  Is she serious?  Does she take us for fools?

Read my lips, Secretary Napolitano:  Abdulmutallab’s actions were absolutely, positively part of something larger.  What they were part of is the comprehensive theo-political-legal program that authoritative Islam calls Shariah. 

This supremacist program requires its adherents to engage in jihad, or holy war, to bring about the triumph of Islam under a global theocracy, one that will impose Shariah on Muslims and non-Muslims alike.  Pursuant to Shariah, jihad should – wherever practicable – be pursued through the terrifying use of violence.  Where violent jihad is impractical or would be counterproductive, Shariah directs faithful Muslims to use other means to advance the same goal.  Koran expert Robert Spencer calls the latter "stealth jihad." 

The question must be asked:  Are we seeing a dramatic increase in violent jihadism in America – National Public Radio reported on Saturday that there had been fourteen attempts in 2009 (compared to two or three in recent years) and that they had been increasingly "operational" in character, not just "aspirational" – because violence is now seen to be practicable here? 

Specifically, could it be that jihadists have been emboldened by what they see as weakness and/or fecklessness on the part of the U.S. administration?  Could steps Team Obama has taken – such as the closure of Guantanamo Bay, the release of some hardened terrorists held there to Yemen (where Abdulmuttalab claims he got his plastic explosive device), granting others access to civilian courts and constitutional rights, etc. – actually be emboldening them to believe that murder and mayhem will accelerate the defeat and conquest of the infidel West?

The U.S. government was warned by Abdulmutallab’s father at least two months ago that his son had been "radicalized" – in other words, that he had embraced Shariah.  That being the case, he was transformed from being one of the hundreds of millions of Muslims around the world who are not a problem into one of those who are. 

In the wake of the latest, narrowly averted massacre at the hands of jihadists, we are being promised executive branch reviews of the practice that, in the wake of his father’s warning, put Abdulmuttalab on the improbably named Terrorist Identities Datamart Environment (TIDE) database – but did not revoke his multiple entry U.S. visa or otherwise keep him from flying. Multiple congressional investigations will be launched, as well.

Such reviews will, however, amount to little more than a waste of time and taxpayer resources – and possibly a serious distraction – if they do not address, and henceforth require screening for, the motivation for such attacks.  It is absurd to think that "the system" is going to do anything other than exponentially increase the amount of discomfort for airline passengers as long as it does not weed out those who embrace as an article of faith their duty to destroy us.

We need to be equally clear about the menace posed by those who adhere to Shariah but profess to seek to "Islamicize" America through non-violent means.  In the wake of the recent actual and averted attacks, the press has, for example, trumpeted the views of parents of five jihadists from Northern Virginia, imams at mosques where they worshipped and prominent fixtures in the various Muslim Brotherhood front organizations.  Unsurprisingly, all of them profess shock – shock! – that these young people would want to do as they have been taught to, pursuant to Shariah: namely, follow the way of jihad against the Dar al-Harb (the "House of War" that is the non-Muslim world).

Nowhere in these disinformation operations is any mention made of the Muslim Brotherhood’s self-declared mission in America.  According to an internal Brotherhood strategic plan dating from 1991, that mission is: "A kind of grand jihad in eliminating and destroying the Western civilization from within and "sabotaging" its miserable house by their hands and the hands of the believers so that it is eliminated and Allah’s religion is made victorious over all other religions."

As long as Janet Napolitano, Attorney General Eric Holder, the intelligence community, law enforcement, the military, the media and most especially President Obama refuse to acknowledge what animates our enemies, we will never develop an effective strategy for defeating them, let alone successfully implement it.  Part and parcel of achieving such an understanding is to stop allowing the stealth jihadists in our midst to blind us to this reality.

 

Frank J. Gaffney, Jr. is President of the Center for Security Policy, a columnist for the Washington Times and host of the nationally syndicated program, "Secure Freedom Radio."

 

Know when to hold them

So what happens if Khalid Sheikh Mohammed and other 9/11 masterminds, whose trials Attorney General Eric Holder has decided will take place in the criminal justice system in New York, get off on a technicality or are somehow O.J.-Simpsoned by a jury? Can we still hold them? If not, where do they go?

These questions have been on the minds of millions of Americans, including members of the Senate Judiciary Committee. The Committee recently convened an oversight hearing to examine Holder’s decision to bring the perpetrators of the worst-ever terrorist attack on American soil to trial in civilian court, rather than before a military commission, where legal procedures more in line with the wartime circumstances of the enemy’s capture would apply. Holder’s responses to these questions before the committee, however, reveal a troubling lack of recognition that a lot can go wrong once you bring KSM and company into the Article III court system — including having to contend with what the Supreme Court may have to say about what happens to these defendants if something indeed does go wrong at trial.

Continue Reading…

 

Ben Lerner is director of policy operations at the Center for Security Policy in Washington, D.C.

War courts for war criminals

A ticking political time bomb has been largely obscured by official Washington’s preoccupation with screwing up our health care system: Americans are dead-set against a foolish, ill-considered and reckless decision to give the 9/11 plotters civilian trials – and constitutional rights – within spitting distance of Ground Zero in lower Manhattan.

And spit they will.  A lawyer representing one of the accused has made clear that his client and the ringleader of the conspiracy, Khalid Sheikh Mohammed (KSM) will plead not guilty, and use the trial as a platform to inveigh against this country and its policies. 

Never mind that KSM and his friends had previously announced they would proudly admit their guilt and demand to be executed for this horrific war crime.  Now, Attorney General Eric Holder has given them what the self-described mastermind of the September 11 attacks has wanted from the moment he was captured: A lawyer and a trial in New York.

This idea is wrong on so many levels space constraints will only allow a brief treatment of some of the reasons that the American people overwhelmingly reject the Holder decision – according to one recent poll by a margin of 93 percent opposed to just 7 percent in favor.  The following have been identified by the remarkable Andy McCarthy, a former federal prosecutor who knows a thing or two about prosecuting Shariah-adherent terrorists – after all, he put away for life the Blind Sheikh Omar Abdel-Rahman in connection with the first effort to destroy the World Trade Center:

Hard experience with incarcerating such jihadists shows they are a threat to their jailers, fellow prisoners and populations beyond the prison walls.  For example, in 2000, al Qaeda operative Mamdouh Salim jammed a shiv into the eye of a prison guard, Officer Louis Pepe, in an escape attempt.  Military personnel securing enemy combatants at Guantanamo Bay are routinely subjected to physical assault from prisoners using as weapons body fluids, excrement and anything else at hand.

Jihadists in U.S. jails – both prisoners and chaplains – are aggressively recruiting felons to their cause.  A growing number of terrorist plots here in America have been spawned by individuals alleged to have embraced Shariah and its requirement to wage holy war while incarcerated. 

As to the danger Islamists can pose to those in the outside world, even while behind bars, consider two prominent cases in point.  In 1993, following the first bombing of World Trade Center, Sayyid Nosair called from Attica prison for fellow jihadists to kidnap or kill political and judicial officials so as to secure his release and that of other captured terrorists.  Abdel-Rahman also issued from jail the religious ruling (or fatwa) that justified the September 11 attacks.  Mr. Holder did not consult with authorities in New York about the heightened danger their constituents might face, nor provide for the additional costs of protecting them.

The precedent of granting civilian trials to war criminals is an ominous one.  It is made all the more bizarre by the Attorney General’s decision, also announced on Friday, November 13th, that perpetrators of the attack on the USS Cole would be tried before military commissions.  The AG’s perverted logic seems to be: kill American civilians and you get far better treatment than if you go after military targets.  This is not the sort of incentive structure we want to offer our enemies.

It is far from certain, even if the foregoing were not the serious problems they are, that justice will be served in the trials of KSM and his co-conspirators: They were not read Miranda rights, to which the civilian courts will say they are entitled; they will try to preclude damaging confessions on the grounds that they were "tortured" – a point conceded by President Obama; and they will assert the impossibility of a fair trial in New York and in light of Messrs. Obama and Holder calling for their execution.

Fortunately, a spontaneous movement has begun to challenge Eric Holder’s benighted decision with respect to KSM and his murdering friends.  Starting with an inspiring rally at New York’s Foley Square on December 5th, a congressional press conference at the Supreme Court on December 10th and an extraordinary hour-long program on Fox News this weekend hosted by Sean Hannity, people across America are joining forces to ensure that war criminals are tried in war courts, rather than civilian ones.

This effort will focus on legislators who were, to paraphrase Sen. John Kerry, against bringing the likes of KSM to America before they were for it.  There are 47 Senators and 60 Members of Congress who flipped on the issue. (Their names can be found here.)

President Obama has, to this point, been somewhat cagey about the decision the White House has been happy to characterize as having been made without his input by Attorney General Holder.  If a fraction of the 93 percent of Americans who oppose that decision raise hell with their representatives about it, there is reason to hope that a President now seized with the just war we must wage against these jihadists will decide not to allow his top law enforcement officer to hand our enemies a needless, and potentially disastrous, victory.

 

Frank J. Gaffney, Jr. is President of the Center for Security Policy, a columnist for the Washington Times and host of the nationally syndicated program, Secure Freedom Radio.

How to lose a war

If a picture is worth a thousand words, perhaps the picture of President Obama that did not get taken during his recent visit to Elemendorf Air Force Base in Alaska is worth a million of them. 

The men and women Elmendorf who play a vital role in the air defense of our nation and, if necessary, in the projection of dominant aerospace power overseas understandably wanted to have as the backdrop for an important presidential address their best weapon system, the F-22 Raptor.  There was only one problem:  President Obama had made the cancellation of production of this state-of-the-art air superiority fighter one of his signature "defense" initiatives. 

Mr. Obama’s handlers freaked out at the prospect of a photo op that could prove as inopportune, and perhaps politically costly, as the image in 1988 of then-Democratic candidate Michael Dukakis looking ridiculous in the helmet of a main battle tank crewman.  So, the Air Force was ordered to substitute a decades-old, and increasingly dated, F-15 to frame the President’s speech.  

The photo that wasn’t allowed to be taken speaks volumes about this presidency, and its real attitude towards the U.S. military.  Ironically, it also made a mockery of the pledge Mr. Obama uttered on that occasion to the assembled servicemen and women at Elmendorf – and to their comrades elsewhere around the world: 

We’ll make sure you can meet the missions we ask of you…. The United States of America will have your back. We will give you the strategy and the clear mission you deserve.  We will give you the equipment and support that you need to get the job done. And that includes public support back home. That is a promise that I make to you.

An even more dramatic manifestation of Team Obama’s failure to "have the back" of those who protect us is the decision first reported by ace national security reporter Rowan Scarborough on FoxNews.com:  Three members of this country’s most highly skilled and effective fighting units – the Navy’s elite Sea, Air and Land (SEAL) teams – are facing courts-martial for having punched a top terrorist in the course of a dangerous mission to apprehend him.  Far from being punished, these men, Petty Officers Matthew McCabe, Jonathan Keefe, and Julio Huertas, should be revered as heroes.

Unfortunately, this action – like the Elmendorf photo incident – are symptomatic of a larger problem:  In the space of eleven months in office, the Obama administration has serially cut the nation’s defenses, demoralized its military and compromised its intelligence services. 

Add to this appalling litany actions taken in recent months by Attorney General Eric Holder to: afford unlawful enemy combatants like 9/11 mastermind Khalid Sheikh Mohammed constitutional rights they do not deserve; acknowledge the right of foreign judiciaries to prosecute Americans on alleged "war crimes"; and signal its willingness to cooperate in such prosecutions.

The implications of these sorts of actions are grave, especially in time of war.  What on earth should be the reaction of those taking risks for us every day – whether they are fighting on distant battlefields, performing exfiltration operations deep behind enemy lines, carrying out strikes with unmanned aerial vehicles, interrogating or detaining unlawful enemy combatants, countering terrorists inside the United States or making hard choices about the policies and rules of engagement governing such activities?  They could scarcely be blamed for concluding that the government they serve may decide to disavow their actions on the grounds that they flout our "values" and/or "international law," then betray them to its own or foreign prosecutors.

That conclusion, of course, can only translate into greater vulnerabilities for all of us.  Not only will our defenses inevitably be diminished.  Our enemies are likely to redouble their efforts to destroy this country, confident that their success is becoming all the more certain.

Let’s be clear:  It is not an American value to indulge in national suicide.  Yet, the practical effect of the sorts of decisions being taken by Team Obama, particularly cumulatively, is to put our country and its people at ever greater risk. 

The time has come for the public and its elected representatives in Congress to recognize the peril associated with the Obama Doctrine of diminishing our country, emboldening our enemies and undermining our friends.  Our servicemen and women, detainee interrogators, CIA operatives and civilian policy-makers and lawyers must be protected from illegitimate foreign prosecution.  They must be allowed to do their difficult and often dangerous jobs confident that we do, indeed, have their backs. 

As New Yorkers afflicted by 9/11 made plain with a remarkable rally last Saturday near Ground Zero, terrorists like Khalid Sheikh Mohammed must not be brought to American shores and granted constitutional rights and trials in civilian courts that will assuredly become instruments for political warfare and lawfare against our nation.

Last but not least, our most skilled and courageous warriors like Petty Officers McCabe, Keefe and Huertas should be recognized and honored for their daring and successes, not prosecuted. 

Let the world see a true core American value – namely, that we treasure those who selflessly serve and protect us.  And let those who are our foes be under no illusion:  We will neither commit national suicide nor fail to fight them relentlessly, with every instrument at our disposal and to victory in this War for the Free World.

 

Frank J. Gaffney, Jr. is President of the Center for Security Policy and host of the nationally syndicated program Secure Freedom Radio.