Tag Archives: Liberty Security & the Law

Waging lawfare

Over the course of the process that culminated in the confirmation of Samuel A. Alito, Jr., as an Associate Justice of the Supreme Court, exhaustive inquires sought to determine how the nominee’s judicial philosophy would impact the Nation on any number of fronts.

Almost entirely missed, however, was an opportunity to raise awareness of what is developing into the most significant legal phenomenon of the new century – one that we ignore at our own peril, moreover, as it constitutes a very threatening form of asymmetric warfare being waged against the United States. What is this menace? Lawfare.

Lawfare can generally be defined as a strategy of the weak employed to debilitate and defeat the United States through the manipulation of international and domestic legal fora, opinion and processes. Lawfare’s effectiveness lies in the fact that ours is a country so strongly committed to the rule of law that it will often bend over backward to appease charges of illegality – however specious – to the detriment of its own interests. This arrangement is recognized, appreciated, and most importantly actively encouraged by adversaries of American power.

Lawfare’s Three-Pronged Attack

In this campaign to diminish American prowess, lawfare is waged on three tactical fronts – the establishment of treaty obligations, the procurement of artificial "legal norms" and the imposition of those by agents within the bureaucracy and on the federal bench.

  • At the diplomatic level, foreign governments wage lawfare by pressuring the United States to become party to international regimes that assume decision-making authority in critical areas. One of their favorite tactics, accordingly, is the creation of treaties whose provisions "level the playing field" with the United States. Of course, these agreements are often aimed at little more than limiting the flexibility our government needs to develop policies capable of defending America and advancing its interests. Hence, the U.S. has been rabidly castigated for its unwillingness to submit to the International Criminal Court, the piece de resistance of lawfare advocates.
  • In addition to these formal apparatuses, lawfare is buttressed by demands that the U.S. abide by so-called legal norms, both domestic and international. These "standards," however, are often artificially created by nothing more than the policy pronouncements of politicians, NGOs and/or the U.N. General Assembly. But because champions of American interests too often ignore rather than challenge their assertions, otherwise legally insupportable, politically charged policy declarations are coming to define the parameters of legal thought in the minds of America’s citizens.

    By using legal-norms arguments to shape public opinion, pressure is indirectly applied on policymakers to adopt practices inimical to the Nation’s security. A prominent example of this approach can be seen in the campaign to paint the Patriot Act as a threat to the civil liberties of law-abiding Americans, leading many Senators who supported the original legislation into their current attempt to water-down or kill provisions critical to its effectiveness.

  • Loath to wait patiently for authority-subordination and political influence operations to take hold, however, lawfare’s prescriptions are, increasingly, simply imposed by its agents on the federal bench and within the bureaucracy. As an example of just how egregious such violations can be, consider the following:

    Despite the Senate’s 1977 refusal to accede to Protocol I to the Geneva Convention that effectively grants POW rights to non-state militias, in November 2003 – amid increasingly strident claims by foreign governments, NGOs, and a minority of American politicians that the U.S. was operating illegally in the detention of terrorists at Guantanamo Bay – federal District Judge James Robertson determined that "general international understandings" were sufficient in extending POW status to al-Qaeda operatives held at Gitmo.

    Similarly, State Department lawyers have unilaterally determined that the utilization of riot control agents – non-lethal substances such as tear gas – by the U.S. military would violate the 1992 Chemical Weapons Convention. This despite the fact the Senate demanded, as a condition for approval of the CWC, and received assurances that certain applications of RCAs by the military were permissible, an understanding that until now was upheld by Republican and Democratic administrations alike.

The Bottom Line

It is time for the United States to fight back – a counteroffensive that first requires the identification of lawfare as a very threatening form of asymmetric warfare being waged against this country. From there, U.S. policy-makers alarmed by the phenomenon can reject treaties that would constrain the flexibility necessary to meet current and future challenges; discontinue conceding the legal-norms debate to self-professed authorities hostile to U.S. interests; and block the appointment of jurists and hiring of bureaucrats who would make legal determinations based on anything other than U.S. law and precedent.

The Alito nomination presented a valuable opportunity to open a national discussion – one that, unfortunately, was almost entirely missed when Senate hearings devolved into a partisan show trial. But for thoughtful questioning from Senators Jon Kyl of Arizona and Tom Coburn of Oklahoma, we would not have discovered that, thankfully, Judge Alito appears stationed firmly in the anti-lawfare camp.

Fortunately, Congress maintains the ability to play an important role in calling attention to the many ways in which lawfare is being waged against us, most immediately by initiating a series of hearings on the subject. In absence of such an exposition, lawfare’s supporters will be all too happy to continue to fill the ideological void.

President Bush meets with Patriot Act Advocates

On the heels of yesterday’s release by the Coalition for Security, Liberty and the Law (CSLL) of a powerful Open Letter to the Congressional leadership, seventeen of the signatories met today with President Bush to applaud his determination to protect the American people against further acts of terror and to ensure that one of the most important tools for doing so – the Patriot Act – is not weakened, let alone allowed to lapse.

For his part, Mr. Bush underscored the real and continuing threat posed to this country by terror-wielding enemies and the necessity of equipping our law enforcement and intelligence personnel to defeat them. He emphasized the extraordinary work those public servants are performing for all of us and the dangers that would arise again if they were denied the authorities that were "sunsetted" in sixteen of the original Patriot Act’s provisions.

The President was accompanied by his Chief of Staff, Andrew Card, Deputy Chief of Staff Karl Rove, Homeland Security Advisor Fran Townsend, White House Counsel Harriet Miers, Press Spokesman Scott McClellan and the Director of White House Legislative Affairs, Candy Wolff.

Among the signatories of the January 25th letter who participated in the meeting were: former Attorney General Richard Thornburgh, former Deputy Attorney General George Terwilliger, former Solicitors General Robert Bork and Theodore Olson, former CIA Director R. James Woolsey, former Secretary of Education William Bennett, former Assistant Attorney General Viet Dinh, former Deputy Assistant Attorney General Victoria Toensing, former Under Secretary of State William Schneider, former Deputy Assistants to the President for Homeland Security Mark Holman and Richard Falkenrath, former U.S. Attorney Joseph diGenova, former federal prosecutor Andrew McCarthy and former Acting Assistant Secretary of Defense Frank J. Gaffney, Jr.

The CSLL-sponsored group was also privileged to include Debra Burlingame, sister of Capt. Charles "Chic" Burlingame who piloted American Airlines 77, the plane that was hijacked and flown into the Pentagon on September 11, 2001 . Ms. Burlingame has been among the most forceful and effective champions of the efforts made by 9/11 family members to prevent another terrorist attack in this country. She is also featured in a new Coalition for Security, Liberty and the Law television ad that was unveiled at a Washington press conference yesterday hosted by former Attorneys General Edwin Meese and Richard Thornburgh. The Coalition will begin airing its ads next week.

After the White House meeting, Mr. Gaffney said:

The Coalition for Security, Liberty and the Law deeply appreciates President Bush’s courageous and visionary leadership in the War for the Free World. His steadfastness in trying to keep America safe and free is an inspiration. His words of encouragement for our efforts are deeply appreciated and will, we hope, result not only in the redoubling of those efforts, but also in the enlisting in the fight to keep the Patriot Act strong and effective of millions of Americans for whom the Coalition speaks.

 

69 Patriot Act supporters warn against its expiration

As a minority of the Senate considers whether to continue to jeopardize reenactment of the Patriot Act, a distinguished group of the legislation’s supporters weighed in today at a press conference convened by two former Attorneys General at the National Press Club. Sixty-nine leaders in the fields of national security, law enforcement, public policy and academia called on the Congress not to allow the expiration or weakening of key parts of this "vital tool in our national effort to prevent further terrorist attacks against the United States."

Among the signatories of the attached Open Letter to the congressional leadership were: former Attorneys General Edwin Meese, Richard Thornburgh, William Barr and John Ashcroft, former National Security Advisor William P. Clark, former Secretaries of Defense Caspar Weinberger and James Schlesinger, former Deputy Attorney General George Terwilliger, former Solicitors General Judge Robert Bork and Theodore B. Olson, former CIA Director R. James Woolsey, former U.S. Representative to the United Nations Jeanne Kirkpatrick, and actor Ron Silver.

The letter addresses the adverse national security effects that would be associated with allowing the Patriot Act’s "sunsetted" provisions to lapse. These include:

  • "The Wall" that impeded information sharing and cooperation between law enforcement and intelligence authorities – which contributed to the Nation’s vulnerability at the time of the 9/11 attacks – will be reconstituted.
  • The use of wiretaps for terrorist-related activities – including those where the possible use of lethal chemical agents or other weapons of mass destruction or espionage involving computers is suspected – will be precluded.
  • Wiretaps that prevent terrorist suspects from eluding surveillance by switching phones will no longer available.
  • Internet Service Providers (ISPs) may become safe-havens for terrorists, encouraging the Internet’s use for plots aimed at harming Americans.
  • It will be more difficult to access "pen registers" and business records in connection with terrorism-related investigations than it is with respect to other crimes.

In releasing the Coalition for Security, Liberty and the Law ‘s newest letter, Frank J. Gaffney, Jr., President of the Center for Security Policy (which sponsors the Coalition) said:

The signatories of this letter are among the Nation’s most serious, accomplished and influential figures in the fields of national and homeland security. In urging that the Patriot Act be kept strong and effective, they are speaking not only for themselves, but for literally millions of Americans who appreciate that this country is at war and needs this legislation’s tools to help defeat our terrorist foes.

We commend President Bush and the bipartisan majorities in the House and Senate that have previously recognized the vital importance of the Patriot Act to our security. We intend to do everything we can to ensure that these commonsensical views prevail in the debates ahead.

 

Mineshaft canaries

At this writing, 13 men are trapped deep underground in a West Virginia coal mine and the prognosis for their safe recovery is uncertain. This event underscores the grave dangers that continue to afflict that trade. It also calls to mind a practice long used to keep miners safe – one that serves as a useful metaphor in thinking about the dangers emerging in the New Year.

Traditionally, miners used a primitive, but effective, technique for monitoring the build-up of deadly gasses in their tunnel job-sites: They placed a canary in a cage in areas where work was being done, knowing that the birds would succumb if the air went bad before humans even noticed it. When the canary’s singing permanently stopped, it was an unmistakable warning of trouble ahead.

 ‘Canaries’ in the Free World’s Mineshaft

At the dawn of 2006, there are a number of metaphorical canaries-in-the-mineshaft that require careful monitoring. Here are four that require our urgent attention:

  • The rise of Islamofacism in Gaza : Israel ‘s ill-advised withdrawal from the territory along the Mediterranean that it captured in the Six-Day war proves the old adage that if you think things can’t get worse, just wait. The vacuum of power created by the withdrawal last summer of the Israeli military has given rise for the moment to anarchy.

Escalating violence within Gaza is being accompanied by increasing violence against Israel in the form of Kassam rocket attacks and suicide bombings. Worse yet, the capacity for still-more-deadly forms of terrorism is growing as surface-to-air missiles, high explosives and other ordnance are being smuggled across the now effectively open border with Egypt.

Unfortunately, the chaos will likely shortly give way to a Taliban-style repressive regime led by the Islamist terrorist organization, Hamas. As with Afghanistan ‘s Islamofascist regime, a Hamas-dominated enclave will become a new safe-haven for terror. Most immediately, it will pose a far more serious threat to the Free World’s frontier state in the region, Israel . But it will be a matter of time before al Qaeda and other Saudi-backed Islamist groups use this territory – and whatever parts of the West Bank Israel foolishly decides to surrender next – to prepare their attacks on the rest of us.

  • Russia reverts to form : Vladimir Putin’s Kremlin has decided to try once again to intervene in Ukraine ‘s domestic political affairs. The last time, roughly one year ago, it did so by endorsing and otherwise supporting a pro-Russian candidate. Currently, it is doing it by employing a familiar Soviet tactic: energy blackmail.

By cutting off natural gas supplies to Ukraine , Putin is demonstrating his willingness to punish his foes, even at the risk of arousing Europe to the prospect that its growing dependency on Russian energy could subject it to similar coercion in the future. He is also proving that his restoration of Soviet-style control over his nation’s economy (and political institutions) will allow him to wield weapons like the energy monopoly, Gazprom, as an instrument of state power. These developments are not auspicious in a country that is now not only a member of the West’s most exclusive club of industrialized nations – the G-8 – but its chairman for this year.

  • Musharraf surrenders to the Islamists : Another gasping canary is to be found in the abject failure of Pakistan ‘s dictator, Gen. Pervez Musharraf, to curb the malevolent activities of his country’s religious schools, known as madrassas. These schools are factories for Isalmofascism; their pupils’ education consists exclusively of memorizing the Koran and indoctrination in its most extreme, jihadist interpretation. Such training leaves them unprepared for little else than serving as cannon-fodder in the war against the Free World.

After the London bombings proved that native perpetrators of such attacks were being trained in Pakistani Islamist schools, Gen. Musharraf promised to send their foreign "students" home and require an accounting of the sources of the madrassas’ funds. He has now effectively welched on both commitments. Needless to say, nothing is being done to effect more systematic reform of these schools.

  • The escalating campaign against America’s counter-terrorism tools : Finally, 2005 closed with efforts in several areas whose effect (if not explicit purpose) is to deny the U.S. government means critical to our defense of the home front. Interrogations that might be deemed by some to be "cruel, inhuman or degrading," warrantless surveillance of people communicating from inside the United States with known al Qaeda or other terrorist operatives and renewal of critical provisions of the Patriot Act are all under assault. Little regard is being given for the contribution these tools have made to keeping us safe since 9/11 – let alone for the future need for such instruments, if as the foregoing "canaries" suggest, the war for the Free World gets a lot more dangerous.

The Bottom Line

Developments affecting Israel, Ukraine, Pakistan and our counter-terrorism tools are all important stories in their own right. They take on even greater significance, however, as indicators of what could be in store for us as we contend – like miners tunneling in the underground darkness – with forces that may spell our doom if we do not pay close attention to our canaries.

It’s ‘triage,’ stupid

Decision Brief     No. 05-D 66                                       2005-12-28


One of the most serious threats we face in this War for the Free World is the possibility that terrorists with radioactive material will find ways to detonate it inside the United States.


Such an attack could involve a “dirty bomb,” capable of contaminating large parts of a city with dangerous levels of radiation, effectively making it uninhabitable for many years. Another possibility is that the perpetrators might have access to a crude atomic device, capable of utterly destroying the targeted community.


How serious are these dangers? The former is more likely than the latter, but neither can be ruled out. We know that al Qaeda is interested in such weapons of mass destruction. There have been persistent reports that plots involving radioactive material in one form or another are afoot.


It is the first responsibility of government to prevent these and other sorts of attacks on this country and its people. Consequently, we should not be surprised that federal authorities have been using various means to detect the presence of radiation in unauthorized places. In fact, if no such efforts were being mounted, those authorities would be derelict.


Yet, last week, US News and World Report precipitated a new firestorm of criticism of the Bush Administration when it disclosed that such a program had indeed been instituted shortly after 9/11. Among the sites where air samples reportedly were taken for the purpose of monitoring radiation levels were a number of “prominent mosques and office buildings” in suburban Washington and five other metropolitan areas. The surveillance reportedly was conducted from public property or publicly accessible spaces without search warrants.


In short order, the disclosure of this highly classified program, conducted by the FBI and the Energy Department’s Nuclear Emergency Support Team (NEST), prompted denunciations from organizations like the Council on American-Islamic Relations (CAIR). In a December 23rd press release, CAIR seized upon the published report to promote the idea that Muslims writ large were being subjected to unwarranted government surveillance: “All Americans should be concerned about the apparent trend toward a two-tiered system of justice system, with full rights for most citizens, and another diminished set of rights for Muslims.”


Actually, the sorts of facilities that were reportedly subjected to monitoring were in all likelihood under surveillance not because they are Muslim. Rather, it is probably because they have ties to the radical Islamofascist political ideology promoted by Saudi Arabia?s Wahhabi sect.


Far from engaging in the surveillance of all Muslims, or even Muslims per se, the federal government would appear to be making a focused effort to do its sampling for radioactivity in places known to have ties to Islamist causes and organizations. For example, by some estimates, as many as 80% of the mosques in America have their financing held by Saudi or Saudi-associated institutions.


Typically, such financial support translates into ominous Saudi influence over such decisions as: the installation of Wahhabi-trained imams to lead the congregation; the nature of the curriculum in mosque-associated schools (which may, like Saudi-backed madrassas elsewhere, offer only Koranic education); the choice of material disseminated in the mosques and their schools (including rabidly intolerant and jihadist publications produced by the Saudi government itself); the selection of which congregants will be allowed to make the required pilgrimage to Mecca (known as the haj); and the use of members’ charitable contributions to the mosque (in some cases, these have gone to terrorist organizations).


Observing the air outside such facilities for radioactivity is not dastardly “profiling.” Rather, it is known in the medical lexicon as “triage,” the effort to use limited resources efficiently to minimize the loss of life in emergency situations.


As with other controversies of the moment (notably, National Security Agency wiretaps of international communications involving al Qaeda-connected phone numbers and e-mail addresses in the United States, alleged CIA “secret prisons” in Europe and treatment of terror suspects that they, or the American advocates, might find “degrading”), one thing is clear: The use of such measures is the exception, not the norm.


Moreover, these initiatives have in common a single purpose. They are aimed at preventing another attack in this country by people determined to kill as many of us as possible. The test of whether these sorts of counter-terrorism activities are justified should not be whether they are exactly what we would do in peacetime.


Rather, the question should be: Would we forgive ourselves, and our leaders, if out of an unwillingness to infringe in any way upon civil liberties in time of war we fail to bring such tools to bear, only to discover after another horrific attack occurs that these measures would have enabled it to be prevented?


President Bush and his subordinates are exercising common sense, something generally in greater supply outside the Beltway than inside it. They are worrying about real threats and trying to respond to and mitigate them in responsible ways. While the caviling of Islamist-sympathizers and their lawyers will continue, we had all better hope that the “triage” being sensibly applied today will spare us further, horrific loss of life in the future.


 

50 Patriot Act supporters warn against Act’s lapse

As a minority of the Senate considers whether to continue to jeopardize reenactment of the Patriot Act, a distinguished group of the legislation’s supporters weighed in. Fifty leaders in the fields of national security, law enforcement, public policy and academia called on the Congress not to allow the expiration of key parts of this "vital tool in our national effort to prevent further terrorist attacks against the United States."

 

Among the signatories of the attached Open Letter to the congressional leadership were: four former Attorneys General Edwin Meese, Richard Thornburgh, William Barr and John Ashcroft, former National Security Advisor William P. Clark, former Secretaries of Defense James Schlesinger and Caspar Weinberger, Deputy Attorney General George Terwilliger, former Solicitors General Judge Robert Bork and Theodore B. Olson, former CIA Director R. James Woolsey and actor Ron Silver.

The letter addresses the adverse national security effects that would be associated with allowing the Patriot Act’s "sunsetted" provisions to lapse. These include:

 

  • "The Wall" that impeded information sharing and cooperation between law enforcement and intelligence authorities – which contributed to the Nation’s vulnerability at the time of the 9/11 attacks – will be reconstituted.

     

  • The use of wiretaps for terrorist-related activities – including those where the possible use of lethal chemical agents or other weapons of mass destruction or espionage involving computers is suspected – will be precluded.

     

  • Wiretaps that prevent terrorist suspects from eluding surveillance by switching phones will no longer available.

     

  • Internet Service Providers (ISPs) may become safe-havens for terrorists, encouraging the Internet’s use for plots aimed at harming Americans.

     

  • It will be more difficult to access "pen registers" and business records in connection with terrorism-related investigations than it is with respect to other crimes.

    In releasing the Coalition for Security, Liberty and the Law’s new letter, Frank J. Gaffney, Jr., President of the Center for Security Policy (which sponsors the Coalition) said: "The distinguished signatories of this letter speak for millions of Americans who understand that the Patriot Act has helped keep the Nation free from attack since 9/11. Its provisions must not be allowed to expire ten days from now. As President Bush and others have observed, the threat against which the Act protects us certainly will not."

    In its lead editorial today, the Wall Street Journal observes that, "After 23 congressional hearings with testimony by 60-plus witnesses, both houses passed amended versions of the Patriot Act. The final bill that emerged from the conference committee this month contains more than 30 new civil liberties protections." It goes on to note the irony that the alternative being proposed by opponents of the original act is to perpetuate for the next three months and without these additional protections the legislation they consider to be so defective.

    The Coalition for Security, Liberty and the Law regards the Patriot Act as a cornerstone of the effort to preserve and protect the American homefront – a critically important battlefield in the War for the Free World. Congress must not allow key elements of that essential building block to be eliminated.

     

    Coalition for Security, Liberty and the Law

    21 December 2005

    The Honorable Dennis Hastert
    Speaker of the House
    U.S. House of Representatives
    Washington, D.C.

    The Honorable Nancy Pelosi
    Minority Leader
    U.S. House of Representatives
    Washington, D.C.

    The Honorable Bill Frist
    Majority Leader
    U.S. Senate
    Washington, D.C.

    The Honorable Harry Reid
    Minority Leader
    U.S. Senate
    Washington, D.C.

    The Honorable James Sensenbrenner
    Chairman, House Judiciary Committee
    Washington, D.C.

    The Honorable John Conyers
    House Judiciary Committee
    Washington, D.C.

    The Honorable Arlen Specter
    Chairman, Senate Judiciary Committee
    Washington, D.C.

    The Honorable Patrick Leahy
    Senate Judiciary Committee
    Washington, D.C.

    Dear Leaders:

    In September 2004, many of us wrote an open letter in support of the reenactment of the Patriot Act before the end of this year. We did so out of a conviction that this legislation represents a vital tool in our national effort to prevent further terrorist attacks against the United States.

    Our joint letter noted:

    "The government’s success to date in preventing another catastrophic attack on the American homeland since September 11, 2001, would have been much more difficult, if not impossible, without the USA Patriot Act. The authorities Congress provided have substantially enhanced the ability of our law enforcement and intelligence officials to prevent, investigate, and prosecute acts of terror. It is an essential law that provides for checks and balances while enabling the government to fight what will, no doubt, be a challenging and prolonged war against terrorists determined to kill us and destroy our society."

    These observations remain as valid today as they did then. Clear majorities in the House and Senate agree. Yet, we find ourselves at a point where thanks to opposition from a minority of the Senate – opposition that seems rooted more in partisan posturing than in legitimate differences on substantive matters – key provisions of the Patriot Act may be allowed to lapse. Among these are the following:

  • Rebuilding "The Wall": The so-called "Wall" that had been allowed, prior to the Patriot Act, to prevent the exchange of information and other cooperation between law enforcement and intelligence personnel must not be reconstituted. Successive inquiries have confirmed that this artificial barrier contributed to the Nation’s vulnerability at the time of the 9/11 attacks. It is unimaginable that, knowing what we now know, we would consciously allow such a grievous impediment to our national security to be reconstituted.

     

  • Denying the use of wiretaps for terrorist-related activities: The Patriot Act’s renewal will ensure investigators’ continued ability to obtain authority for wiretaps in cases where the possible use of lethal chemical agents or other weapons of mass destruction or espionage involving computers is suspected. The potential for harm arising from such activities requires that this authority remain on the books.

     

  • Preventing roving wiretaps: The Patriot Act allows federal officials, pursuant to Foreign Intelligence Surveillance Act (FISA) Court authority, to track the telecommunications of suspected terrorists, despite their efforts to defeat such monitoring by changing phones or service providers. Do we really want to afford our enemies once again the opportunity to avoid such surveillance?

     

  • Re-establishing ISPs as safe-havens for terrorists: One provision of the Patriot Act (Sec. 220) due to expire shortly allowed federal judges to issue nation-wide search warrants so that investigators could examine unopened e-mails stored on an Internet Service Provider’s computer server, even one located outside of the judge’s district. This is a critically important tool in dealing with large ISPs.

    Another sunsetted provision (Sec. 212) affords protection to ISPs from lawsuits if they turn over to the authorities customer records that suggest an immediate risk of death or serious physical injury. Since the Patriot Act’s adoption, this provision has prevented the loss of life and will surely do so in the future – unless it is allowed to lapse.

  • Losing access to "pen registers" and business records: The Patriot Act’s Sections 214 and 215 extend to terrorism-related behavior access already long afforded to the investigation of other crimes. Were these provisions allowed to expire, the preponderance of terrorism investigations would be adversely affected.

    The cumulative effect of these and other changes in law that would follow from a failure to reenact the Patriot Act will be to put the Nation at greater risk of terrorist attack. Accordingly, we call upon you and your colleagues to complete action on the conference report at once.

     

    Sincerely,

    Dr. Mark Albrecht, former Executive Secretary, White House National Space Council
    Morris J. Amitay, Esq., Vice Chair, Jewish Institute for National Security Affairs
    John D. Ashcroft, former Attorney General, former United States Senator and former Governor of Missouri
    David Ayres, former Chief of Staff to the Attorney General
    Dr. Thomas G. Barnes, Professor of History and Law, University of California, Berkeley
    William Barr, former Attorney General
    William J. Bennett, former Secretary of Education, former Director Office of National Drug Control Policy and Washington Fellow of the Claremont Institute
    Bradford A. Berenson, former Associate Counsel to President George W. Bush and Co-Founder of Citizens for the Common Defense
    Robert H. Bork, former acting Attorney General, former Solicitor General and former Circuit Court of Appeals Judge
    Dr. Stanley C. Brubaker, Professor of Political Science, Colgate University
    William P. Clark, former National Security Advisor, former Secretary of Interior, former California Supreme Court Justice
    Robert J. Cleary, former U.S. Attorney for the District of New Jersey and Southern District of Illinois
    Barbara Comstock, former Director of Public Affairs at the Department of Justice
    Cesar V. Conda, former Assistant for Domestic Policy to Vice President Cheney
    Viet Dinh, former Assistant Attorney General
    Richard A. Falkenrath, former Deputy Assistant to the President and Deputy Homeland Security Advisor
    Vincent E. Falter, Major General, USA, (Ret)
    Frank Gaffney, former Acting Assistant Secretary of Defense and President of the Center for Security Policy
    Todd Gaziano, Director, Center for Legal and Judicial Studies, the Heritage Foundation
    Fred Gedrich, former State and Defense Department official
    Steven J. Greer, Command Sergeant Major, US Army, (Ret)
    Peter Heussy, President, National Defense University Foundation
    Mark Holman, former Deputy Assistant to the President for Homeland Security
    Dr. Robert Kaufman, Professor of Political Science, Pepperdine University
    Jack Kemp, former Secretary of Housing and Urban Development and Co-Chairman of FreedomWorks
    Frederick J. Kroesen, General, USA, (Ret)
    Robert S. Khuzami, former Prosecutor, Office of the U.S. Attorney for the Southern District of New York
    Dr. Peter Leitner, GMU National Center for Biodefense, Higgins Counter Terrorism Research Center
    Dr. Douglas Macdonald, Professor of Political Science, Colgate University
    Heather MacDonald, Fellow, Manhattan Institute
    Clifford D. May, President of the Foundation for the Defense of Democracies
    Andrew C. McCarthy, former Prosecutor, Office of the U.S. Attorney for the Southern District of New York
    Tidal W. McCoy, former Acting Secretary of the Air Force
    Edwin Meese, former Attorney General and Counselor to the President
    Larry A. Mefford, former FBI Executive Assistant Director, Counterterrorism and Counterintelligence
    Theodore B. Olson, former Solicitor General of the United States
    Edward L. Rowny, former Ambassador and Lieutenant General USA (Ret.)
    James R. Schlesinger, former Secretary of Defense, former Secretary of Energy and former Director of Central Intelligence
    Gary Schmitt, Resident Scholar and Director of the American Enterprise Institute’s Program on Advanced Strategic Studies
    Dr. William Schneider, Jr., former Under Secretary of State, Department of State
    Dr. Dennis Showalter, Professor of History, Colorado College
    Ron Silver, Actor and former president of Actors’ Equity
    Dr. Joseph M. Skelly, Professor of History, College of Mount Saint Vincent
    George J. Terwilliger III, former Deputy Attorney General
    Richard T Thornburgh, former Attorney General and Governor of Pennsylvania
    Dr. William R. Van Cleave, Professor Emeritus, Defense & Strategic Studies Department, Southwest Missouri State University
    Caspar W. Weinberger, former Secretary of Defense, former Secretary of Health, Education and Welfare and former Director, Office of Management and Budget
    William F. Weld, former Assistant Attorney General, Criminal Division and Governor of Massachusetts
    R. James Woolsey, former Director of Central Intelligence
    Dr. John Yoo, former Deputy Assistant Attorney General

    • A war to the death

    The news from Iraq today features a video of a terrorist murdering a man believed to be a kidnapped American civilian. The victim was trying to help rebuild that country. His cold-blooded execution is a reminder of what our Islamofascist enemies have in mind for all of us, non-Islamist Muslims and non-Muslims alike.

    Perhaps the murder was committed by putting a bullet into our countryman’s head, rather than removing it, in deference to the recently disclosed injunction from an al Qaeda leader to one of his franchisees in Iraq that beheadings have proven counterproductive to the cause.

    The question now occurs: Will the image of a man’s brains being blown out prove less discomfiting to American viewers than that of a decapitation? Or will they be shaken from their growing complacency by this latest reminder of what we are up against? Will this episode provide vital context for them, and their leaders, at a time when many are indulging in increasing paroxysms about the steps President Bush and his administration have taken to protect us against such enemies?

    Surveilling Possible Enemies at Home

    The latest example is the swivet produced by the New York Times’ publication on Friday of an article disclosing that the National Security Agency had been monitoring the international calls and e-mails of certain unnamed people in this country without warrants. The newspaper had sat on the leak of this highly classified program for a year, then calculatedly released it on the day the Senate was scheduled to vote on the reenactment of the Patriot Act.

    The reaction was predictable: Critics of the Act seized upon this revelation to denounce the Bush Administration as Big Brother, evidently viewing it as a more serious threat to American citizens and the rule of law than the enemies we need the Patriot Act to defeat. As a result, critical parts of that legislation – including provisions allowing information-sharing between intelligence and law enforcement agencies that have been recognized post-9/11 to be vital to our security – may be allowed to lapse at year’s end.

    Lost in the brouhaha has been a highly relevant fact. The numbers and e-accounts that were monitored in this manner were discovered in places like the hard-drives and phone books of captured al Qaeda operatives. This possible connection to terrorists may or may not have been sufficient "probable cause" to obtain orders for wiretaps, even from the secret Foreign Intelligence Surveillance Act (FISA) courts.

    Yet, the common sense brought to bear on such questions by most Americans – although not necessarily civil libertarians (especially those of the far Left and far Right) and Democrats angling for partisan advantage – argues for doing just as the President has done: Undertake this sort of selective monitoring in order to protect us against murderous enemies bent on our destruction, some of whom may be operating in this country. They may even be, as was true of the London bombers last July, legally present and, in some cases, citizens. Conferring Constitutional Rights on Terrorists?

    Common sense seems to be in no less peril with respect to another frenzy of the moment – the posturing about our national attitude towards torture. The President, Secretary of State and others have made clear that American policy eschews the use of torture. We are, however, about to have adopted an amendment by Senator John McCain, that precludes as well any activity involving terror suspects that can be construed as "cruel, inhuman and degrading" treatment.

    The implications of the McCain amendment, which President Bush was obliged to endorse last week, could also prove to be highly detrimental to the war effort. Andrew McCarthy, a former federal prosecutor who successfully tried terrorism cases prior to 9/11, warns in a powerful essay distributed by National Review Online that:

    • McCain borrows the term cruel, inhuman, or degrading treatment or punishment (CID) from the 1984 United Nations Convention Against Torture and Cruel, Inhuman, and Degrading Treatment or Punishment (UNCAT). When the Senate ratified UNCAT in 1994, it enacted a significant reservation: the CID terms were limited to what was already covered under U.S. law by three Bill of Rights provisions: the Fifth, Eighth and Fourteenth amendments to the Constitution.
    • This caveat reduced CID to a virtual nullity. The Bill of Rights does not apply to non-Americans situated outside U.S. territory. Under current law, UNCAT’s CID terms are thus unavailing to alien enemy combatants captured and held in foreign countries during wartime. Such captives may not be tortured, but CID poses no legal obstacle to aggressive tactics that fall short of torture. Tactics that yield intelligence which saves the lives of American citizens and soldiers.

    Mr. McCarthy warns that the effect of the McCain amendment, however, could be to supplant this sensible attitude with one that affords terrorist suspects the protections of our Bill of Rights, including the privilege against self-incrimination:

    If that is the case, then al Qaeda terrorists captured on overseas battlefields in the war on terror would have to be given Miranda rights before they could be interrogated. Forget about water-boarding. They would actually have to be advised that they are under no obligation to speak to interrogators, that if they do speak their statements can be used against them as evidence in court, and that they are entitled to have a lawyer – paid for by the American people – present and assisting them at all times during questioning."

    The Bottom Line

    In the Civil War, Abraham Lincoln infuriated civil libertarians by suspending for the duration the touchstone right of habeas corpus. It appears that in this War for the Free World, we are about to suspend common sense – at least until the next, possibly catastrophic attack demonstrates anew what the latest terrorist murder in Iraq showed all-too-graphically: We will enjoy no civil liberties if we are destroyed.

     

    The NYT goes to war-and President Bush fights back

    Decision Brief     No. 05-D 64                                        2005-12-17


    (Washington, D.C.): On December 16, the Nation’s so-called “paper of record” joined the War for the Free World. Unfortunately, the New York Times entered the fray on the side of America’s enemies.


    In a lengthy front-page article, the Times disclosed that, shortly after 9/11, President Bush had authorized the surveillance of certain individuals’ international phone calls and e-mails in which one of the parties was on American soil – without seeking warrants for such monitoring. The newspaper not only gave this revelation its most sensational spin – “Bush Lets U.S. Spy on Callers Without Courts” read the headline. It deliberately held the publication of this report for one year after being told the effect would be to damage national security, then published it on the day the Senate was scheduled to vote on the reenactment of the Patriot Act.


    By so doing, the Times has compromised a highly sensitive intelligence program, possibly jeopardized the prosecution of individuals whose terrorist-related activities were discovered in the course of the surveillance it made possible and created the unfounded impression that Americans in general are at risk of such monitoring. Predictably, this irresponsible action caused some in the Senate to recoil from approving the reenactment of the Patriot Act – as though that legislation was somehow involved.


    The President Responds


    President Bush responded to this assault on his leadership, authority and integrity with what may be the most important presidential Saturday morning radio address since Ronald Reagan began the practice two decades ago. In it, he reminded the American people why the Patriot Act was important, then called for its immediate reenactment (emphasis added throughout):



    As President, I took an oath to defend the Constitution, and I have no greater responsibility than to protect our people, our freedom, and our way of life. On September the 11th, 2001, our freedom and way of life came under attack by brutal enemies who killed nearly 3,000 innocent Americans. We’re fighting these enemies across the world. Yet in this first war of the 21st century, one of the most critical battlefronts is the home front. And since September the 11th, we’ve been on the offensive against the terrorists plotting within our borders.


    One of the first actions we took to protect America after our nation was attacked was to ask Congress to pass the Patriot Act. The Patriot Act tore down the legal and bureaucratic wall that kept law enforcement and intelligence authorities from sharing vital information about terrorist threats. And the Patriot Act allowed federal investigators to pursue terrorists with tools they already used against other criminals. Congress passed this law with a large, bipartisan majority, including a vote of 98-1 in the United States Senate.


    Since then, America‘s law enforcement personnel have used this critical law to prosecute terrorist operatives and supporters, and to break up terrorist cells in New York, Oregon, Virginia, California, Texas and Ohio. The Patriot Act has accomplished exactly what it was designed to do: it has protected American liberty and saved American lives.


    Yet key provisions of this law are set to expire in two weeks. The terrorist threat to our country will not expire in two weeks. The terrorists want to attack America again, and inflict even greater damage than they did on September the 11th. Congress has a responsibility to ensure that law enforcement and intelligence officials have the tools they need to protect the American people.


    The House of Representatives passed reauthorization of the Patriot Act. Yet a minority of senators filibustered to block the renewal of the Patriot Act when it came up for a vote yesterday. That decision is irresponsible, and it endangers the lives of our citizens. The senators who are filibustering must stop their delaying tactics, and the Senate must vote to reauthorize the Patriot Act. In the war on terror, we cannot afford to be without this law for a single moment.


    The President then went on to address the New York Times leak and the facts concerning the surveillance program he authorized shortly after 9/11:



    To fight the war on terror, I am using authority vested in me by Congress, including the Joint Authorization for Use of Military Force, which passed overwhelmingly in the first week after September the 11th. I’m also using constitutional authority vested in me as Commander-in-Chief.


    In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.


    This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies. Yesterday, the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.


    Revealing classified information is illegal, alerts our enemies, and endangers our country.


    As the 9/11 Commission pointed out, it was clear that terrorists inside the United States were communicating with terrorists abroad before the September the 11th attacks, and the commission criticized our nation’s inability to uncover links between terrorists here at home and terrorists abroad . Two of the terrorist hijackers who flew a jet into the Pentagon, Nawaf al Hamzi and Khalid al Mihdhar, communicated while they were in the United States to other members of al Qaeda who were overseas. But we didn’t know they were here, until it was too late.


    The authorization I gave the National Security Agency after September the 11th helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities. The activities I have authorized make it more likely that killers like these 9/11 hijackers will be identified and located in time. And the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.


    The activities I authorized are reviewed approximately every 45 days . Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland. During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation’s top legal officials, including the Attorney General and the Counsel to the President. I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.


    The NSA’s activities under this authorization are thoroughly reviewed by the Justice Department and NSA’s top legal officials, including NSA’s general counsel and inspector general. Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it. Intelligence officials involved in this activity also receive extensive training to ensure they perform their duties consistent with the letter and intent of the authorization.


    This authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power under our laws and Constitution to protect them and their civil liberties. And that is exactly what I will continue to do, so long as I’m the President of the United States.


    The Bottom Line


    The decision by nearly all Senate Democrats (with the laudable exception of Senators Tim Johnson of South Dakota and Ben Nelson of Nebraska, who voted with all but four Republicans to extend the Patriot Act) to filibuster the reenactment of this legislation’s key provisions is further evidence that official Washington is suffering from an outbreak of unseriousness about the magnitude of the danger we face.


    Defending a free society in time of war – especially a war against a totalitarian ideology like Islamofascism, which has taken hold in our own country and is adept at exploiting our civil liberties against us – requires a balancing act between infringements on our rights and providing for our security.


    The President appears to have struck that balance sensibly and he should be supported in his efforts to do so – both with respect to the Patriot Act and the need for its reenactment, and with respect to the classified surveillance of individuals in this country with direct links to terrorists.


     

    Preserve the Patriot Act

    The proverbial rubber is about to meet the road. This week, the U.S. Congress will determine whether the USA Patriot Act – the most important piece of domestic security legislation adopted since 9/11 – will be reenacted in a slightly weakened form, or allowed to have a number of its key provisions lapse.

    Since the consequences of the latter would be manifestly detrimental to the War for the Free World, legislators opposed to the Act have offered to extend it for a short period – a gambit they hope will allow them to dumb it down still further. Make no mistake, however: The effect of additional delay and more negotiations will not be to improve either the bill or the national security. To the contrary, it would likely jeopardize both.

    Reality Check

    That would be particularly true if the Patriot Act’s most vociferous critics on the Left and their less numerous (and most unlikely) bedfellows on the Right were to have their way. They have tended to characterize the Act as an assault on the basic freedoms enshrined in the Bill of Rights and have sought far-reaching changes in the tools it provides law enforcement to detect and prevent terrorist plots inside the United States.

    In reality, the Patriot Act is an eminently sensible overhaul of the government’s antiquated counter-terror arsenal, an overhaul that reflects the realization that we cannot hope to fight a 21st century war using 20th century legal instruments. Consider two of its elements whose repeal the critics have most insistently demanded: 1) the so-called "library records" provision (Section 215) and 2) the authorization of what have been derided as "sneak-and-peek" search warrants (Sec. 213).

    Libraries as Terrorist Safe-havens? The dust-up over government access to library information is truly a manufactured controversy. For one thing, libraries are not mentioned anywhere in the pertinent Patriot Act provision. Moreover, law enforcement has been authorized for decades in ordinary criminal cases to subpoena library records (along with any other business records). This has not translated into any noticeable impact on Americans’ reading habits. All the Patriot Act did was make business records (including those maintained by libraries) available on roughly the same terms in national security cases as they have long been in criminal cases.

    The reason for this should be obvious: It makes no sense to enshrine libraries as safe havens for terrorist planning.

    In fact, as we now know, many of the September 11 hijackers used American and European libraries for preparation in the run-up to the attacks. Relevant literature (such as bomb manuals and jihadist materials) has been a staple of terrorism prosecutions for more than a decade. Privacy extremists of organizations like the American Civil Liberties Union (ACLU) have nonetheless reacted to the Patriot Act’s much-needed business records law as if the Gestapo had seized office in the United States.

    Tip-off Terrorists? Similarly, the Patriot Act did not – as its critics would have us believe – create new and unsavory "sneak-and-peek" warrants. It does, however, allow agents to search premises but delay notification of the search to subjects of a terrorism investigation.

    The Patriot Act’s notification provision is no different in principle from the legal notice that was previously required to be given to persons intercepted in a court-ordered wiretap. In such situations, notification of the target has routinely been delayed for weeks or months after the eavesdropping ends.

    Doing so can be absolutely critical to the arrest and prosecution of suspected perpetrators: Delayed notification allows the government to complete its investigation without giving the subjects the sort of heads-up that would certainly cause them to flee or destroy evidence.

    What the Patriot Act did, in the so-called "sneak-and-peek" arena, was to establish consistent standards that the federal courts must follow in determining whether to permit delayed notification. Previously, a hodge-podge of different rules were applied in various jurisdictions. This is precisely the sort of fairness and equal protection Congress should provide – yet, it has been criticized sharply for doing it in the Patriot Act.

    The Bottom Line

    With regard to both the business records and delayed notification sections of the Patriot Act (among others), the stance taken by the American Civil Liberties Union and like-minded critics seems to have an ulterior motive. They are not only opposed to such legislation in the Patriot Act. They appear intent on reopening settled case law regarding the use of these authorities with respect to crimes unrelated to terror.

    The Congress should not encourage, let alone facilitate, such efforts by holding open the Patriot Act for further revision and adulteration. The original Patriot Act as a whole infringed only modestly on our civil liberties and did not meaningfully intrude on the privacy rights of law abiding Americans. We need to keep in mind, moreover, that if its precautions fail to prevent some further terrorist attack, we are likely to see impassioned demands for greater security measures, at the expense of our freedoms. Since few, if any of us relish that prospect, we need to make sure the Patriot Act retains its core provisions and authorities – and remains an effective tool for securing the home front in the War for the Free World.

     

    Get serious

    Decision Brief     No. 05-D 62                                       2005-12-05


    (Washington, D.C.): Secretary of State Condoleezza Rice will be spending the week in Europe and apparently the message she will deliver to our so-called allies is as undiplomatic as it is needed: Get serious. It is a message that a lot of other people in this country – notably the media and academia – should take aboard, as well.


    Buck Up, Europe


    Some in Europe are in a swivet over unconfirmed press reports that the U.S. government has been secretly operating detention facilities in unnamed Eastern European countries and covertly transporting suspected Islamist terrorists through the continent’s airspace and airports. Anti-American parliamentarians and bureaucrats have been howling that such alleged behavior violates Europe’s norms and treaties and demanded full American disclosure and contrition.


    It is time to remind our friends that we are engaged in a war. It is a war we are fighting not just on our own behalf but on theirs, as well. For the Islamists we battle wish to destroy not just freedom in America, but also in Europe.


    The more sensible Europeans have begun to appreciate the gravity of their situation. The rioting in France is a foretaste of what must be expected from the populations of unassimilated, disaffected and poor Muslim immigrants who now reside in Western Europe by the millions. Their young people are being systematically recruited and radicalized by Saudi-funded Islamofascist clerics and organizations, particularly in prison.


    The danger has only been increased by the European practice of ignoring such problems as long as possible and then, when that is no longer sustainable, of trying to postpone the day of reckoning with appeasement. The outrage currently being expressed at reported CIA activities is, in part, a product of this syndrome.


    Condi Rice should impress upon her European interlocutors that neither we nor they any longer have the luxury of waging this war in a half-hearted and irresolute fashion. Our enemies are adept at using Western civil liberties to protect their operations from investigation and prosecution.


    Their apologists would risk our ability to enjoy liberty in the future by insisting that we eschew well-established, legitimate and necessary wartime techniques such as covert operations to deny our enemies insights into our counter-terrorism actions, and to defeat their efforts to destroy us. Neither America nor European nations interested in self-preservation can accede to such demands.


    Buck Up on the Home Front, Too


    As Dr. Rice conveys this “tough love” message to her diplomatic counterparts, a similar theme should be transmitted to the domestic and foreign media and to the Academy. The former is currently roiled by reports of U.S. military personnel selling stories about progress in Iraq to Iraqi newspapers. The latter is pressing the Supreme Court to rule that universities can take federal funds without having to permit military recruiters to do their vital work on campus.


    The Media : Sen. John McCain took point with the media on Sunday, declaring on NBC’s “Meet the Press” that he was untroubled that good news stories about Iraq were being placed in the Iraqi press – as long as the articles were accurate and produced by responsible individuals (for example, information operations specialists in the U.S. military). He understands better than most how important it is for those who will ultimately determine that country’s fate – namely, the people of Iraq – to have access to news about real progress being made, not just the violence and setbacks. How different might the polls be here at home if the American people were being given a more balanced portrayal of the facts on the ground over there?


    Academia : No less in need of a dose of salts are the academic plaintiffs in a case due to be heard by the Supreme Court Tuesday. In Rumsfeld v. the Forum for Academic and Institutional Rights (FAIR), the Court is being asked to strike down as unconstitutional legislation that made federal grants to institutions of higher learning contingent upon their welcoming military recruiters. Ostensibly, the plaintiffs object to what they see as the armed services’ discrimination against homosexuals. Their brief cannot conceal, however, a deep-seated hostility towards the military and its mission that is all-too-common in universities today.


    This is yet another example of a lack of seriousness about the conflict in which we are engaged: the War for the Free World. It should be the duty of every American institution, not just those who benefit from government largesse, to facilitate and otherwise encourage the recruitment of young people into the U.S. military.


    The alternative will not be to prevent the United States from fielding an army. Instead, it will simply be obliged to do so on a compulsory, rather than voluntary, basis. While there is an argument for expecting all Americans to serve their country in some fashion, neither the military, prospective draftees nor, last time I checked, academia want a return to conscription.


    The Bottom Line


    We had better be clear – with each other, with our allies, with the press and with the Academy: This war is a deadly serious business. We need to use the full panoply of techniques at our disposal to prevail in it. That means employing covert activities, political warfare (including information operations) and recruiting the finest all-volunteer force possible, with the active support of institutions, communities and families. Doing otherwise will not prevent further conflict. But it may end the present one on very unsatisfactory terms.