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In giving trial rights to terrorists that soldiers fighting lawfully did not enjoy in earlier times we are not helping ourselves.
The June 2010 collapse of the moderate, democratically elected Pakistani government set off a scramble for control of Islam’s atomic arsenal, its estimated 60 – 120 atomic bombs stored at locations kept secret from the United States. Days later American Special Forces captured a senior pro-Taliban official from Pakistan’s Inter-Services Intelligence agency. Secure in the knowledge that official American guidelines limit interrogation to the Army Field Manual, the ISI official laughed in the face of his American captors: “You will see Taliban control all Pakistan’s A-bombs within days.” Lawyers for the Obama Administration confirmed that no “enhanced” techniques could be used to elicit information, absent certainty that the Taliban would either use the bombs, or transfer them to a group that would use them. Thus the “ticking bomb” scenario, oft cited as an exception to the ban against torture, did not apply. A week later the new Taliban government announced it had gained control over the entire atomic arsenal of Pakistan. On September 11, 2010 a nuclear device detonated in Lower Manhattan, killing 500,000 people and leveling the financial district.
President Obama explained the next day why interrogators did not pressure the ISI officer to talk, citing his remarks at CIA headquarters on April 20, 2009:
“I believe that our nation is stronger and more secure when we deploy the full measure of both our power and the power of our values, including the rule of law…
“Al-Qaeda is not constrained by a constitution. Many of our adversaries are not constrained by a belief in freedom of speech, or representation in court, or rule of law. I’m sure that sometimes it seems as if that means we’re operating with one hand tied behind our back, or that those who would argue for a higher standard are naïve. I understand that….
“What makes the United States special, and what makes you special, is precisely the fact that we are willing to uphold our values and our ideals even when it’s hard, not just when it’s easy; even when we are afraid and under threat, not just when it’s expedient to do so.”
Our Constitution and laws did nothing to protect us on September 11, 2001. International law did nothing either. Rather, intelligence, behavioral profiling at airport security, locked cockpit doors, F-16s on patrol overhead, could have protected us. Excessive legal constraints have already cost us dearly: In late 2001 a Predator drone had Taliban spiritual leader Mullah Omar in its gun-sights. But by the time administration lawyers finished debating what was legally permissible the high-value target was off-screen. How many lives would have been saved had Mullah Omar been taken out then? By how much would Taliban operations have been degraded, deprived of their charismatic leader?
The Obama administration has followed Bush policy in several cases. Most notably, after the Karachi capture of Mullah Omar’s top military commander, Mullah Bandar, the Pakistanis, who know not Miranda from Miss Manners, interrogated him.
But two recent decisions starkly diverge from the war focus of the Bush years. By instantly tossing the Christmas Flight 253 bomber into the criminal justice system, before ascertaining whether he acted alone or in concert with Islamist groups, the opportunity to probe the bomber’s knowledge of Yemeni terrorist connections was cut off by the Miranda warnings and intervention of defense counsel. The defendant’s testimony is now only be obtainable via a plea agreement, in which event the Obama administration will have sacrificed full punishment for a would-be mass murderer, to gain intelligence it could have gained by pursuing trial in a military tribunal, where pre-trial interrogation can be much more thorough.
The mere 50 minutes’ interrogation given the Flight 253 bomber before he was Mirandized is a travesty — the decision was taken without the knowledge of any senior intelligence or homeland security official, let alone the White House. Intelligence 101 requires serial interrogation based upon assembling prior knowledge, comparison with other sources for verification, with interrogators working to gain full trust of an isolated detainee given no right to remain silent. Worse, defendant’s intelligence is evanescent and thus likely actionable only for a short time. Five precious weeks were lost before the defendant resumed talking.
Far worse, the administration may still hold a criminal trial for the 9/11 plotters at the same time that it plans to try other top terrorists by military tribunal. Team Obama’s defenders, such as Senate Judiciary Chairman Patrick Leahy, hail the decision as giving America a chance to showcase how its criminal justice system can try (and convict) terrorists with full due process, and thus presumably garner some international goodwill as an added benefit.
We have seen this movie before. In the mid-1990s Sheikh Omar Abdul Rahman and nine-co-conspirators were convicted in federal court of plotting to blow up New York City landmarks, and given long sentences. In the bargain, Osama bin Laden learned that he was on a terror watch list, as were other top confederates. The upshot was that a valuable source of clandestine intelligence was compromised, as key al-Qaeda members were warned that they were being watched.
Whatever goodwill we may have earned did us no good in 1998 when al-Qaeda bombed our Kenyan and Tanzanian embassy building, nor during the 2000 bombing of the USS Cole in Aden harbor, let alone on September 11, 2001, when the worst terror attack ever carried out on American soil finally forced America to strike back.
A 9/11 criminal court trial could easily be to be the 21st century’s first O.J. trial. Forgotten is how one of the conspirators in the first World Trade Center bombing, Sayed al-Nosair, was acquitted in the 1990 shooting of Jewish militant Rabbi Meir Kahane despite conclusive evidence. Forgotten is that the 20th hijacker trial of Zacharias Moussaoui nearly ended in disaster. A Clinton appointee judge nearly dismissed the case. After a guilty plea by defendant, a jury declined to impose the death penalty, due to one juror who concealed a core conviction against capital punishment.
Fortunately for America’s fortunes in the Civil War and World War II, past Presidents put security first and legalism second — “lawfare” as a tactic did not come into vogue until recent years. Not that everything earlier leaders did was justified, but certain things are defensible, in light of history. The late Chief Justice William Rehnquist, in his magisterial account of wartime suspension of civil liberties, All the Laws But One (1998), detailed the ups and downs in the seesaw battle of national security and civil liberties. The cliché that the two are completely compatible, publicly subscribed to by politicians across the political spectrum, gives way to the complex interplay of wartime conflict.
Justifying his April 1861 suspension of the writ of habeas corpus — despite the Constitution’s reservation, per Article I, section 9, clause 2 of that power to Congress, and then only in cases of rebellion or invasion, when public safety requires it — President Lincoln asked in a July 4, 1861 message to a special session of Congress: “Are all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?”
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
In Britain, defending your property can get you life.
The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
Was the President done in by the economy, or by the politics of the economy?
H/T to National Review Online