Andrew C. McCarthy's Blog, page 57

Intelligence and Hypocrisy

A characteristically thorough and insightful analysis by Ron Radosh at his Pajamas blog on the Left's quandary -- praising the bin Laden raid authorized by President Obama while resisting acknowledgment of the Bush counterterrorism policies that made it possible.

Re: re: Er, Not Exactly

Dan, I think that's exactly right. Over a year ago, I wrote a column about the Obama policy to choose "kill" when the options are kill or capture -- a policy driven by the box in which the Obama Left has put us by making it so much more difficult to detain and interrogate enemy combatants. As I said back then, I agree with my pals Marc Thiessen and Shannen Coffin, to name just two, that it would be far preferable to capture and interrogate top terrorists. Fresh intelligence from high-ranking, insulated sources is the most valuable defense we have against terrorist attacks. Still, I've been inclined to cut the Obama administration some slack on this score.

Largely, that's because of low expectations. I was afraid that Obama would abandon the fight. He hasn't. As long as he's killing terrorists, that's a lot better than abandoning the fight, even if it's not optimal -- optimal being: capture, interrogate, and execute at some later point, after their usefulness as intelligence sources fades. The Obama administration ought to rethink this, but they'd then have to rethink everything that has caused them to end up with this policy. I wouldn't hold my breath on that.

For what it may be worth, I think the real intelligence lapse here is not the failure to interrogate bin Laden (as much a coup as that may have been). It is the haste to get in front of the cameras and take credit. Not that Obama doesn't deserve credit -- that's not my point.

The reports coming out today indicate that the "motherlode" of intel (computers, hard-drives, discs, documents, etc.) was found in bin Laden's compound. Officials are saying it may be the most significant trove of information about al-Qaeda ever seized. Well, if that is the case, there is a good chance that it could have helped analysts figure out where other top Qaeda leaders (like Zawahiri) are, where important camps are, and where active cells are located. But the only way you can exploit that kind of information is by keeping quiet about bin Laden for a few days while the analysts go through it and get the leads to the military and intelligence operatives so they can act on it -- maybe roll up other key parts of the organization. Once you go public on bin Laden, it tells everyone else in al-Qaeda to get in the wind. The intel trove will still be very valuable for other reasons, but you've lost the opportunity to capture other big fish.

I understand how government works, and this is an ancient tension between the political actors who want to take credit (after all, they get the blame when things go wrong), and the investigators who want to act on the information in the small window they have while it is still actionable. I can't help thinking, though, that the government could have kept the bin Laden operation quiet for a few days. If they hadn't announced it for, say, a week, they'd still get just as much credit . . . and maybe more credit if the intel haul had led to other kills/captures.

When They Think the West Isn't Listening, the Muslim Brotherhood Praises bin Laden

I hadn't seen Stanley's post until I was just about done writing this, but it is along the same lines. A little background: A few months back, as revolt stirred in Egypt, Obama flaks were telling everyone not to worry about the “largely secular” Muslim Brotherhood because the "moderate" Brothers really can’t stand al-Qaeda -- you should hear the way they trash bin Laden. I countered that this was nonsense. The Brotherhood is terrorism-friendly (Hamas, after all, is a Brotherhood branch) but that it plays a sophisticated game to obscure this fact from gullible Westerners -- a game that has very much included its treatment of Osama bin Laden. As I wrote at the time:

Occasionally, the Brotherhood condemns terrorist attacks, but not because it regards terrorist violence as wrong per se. Instead, attacks are criticized either as situationally condemnable (al-Qaeda’s 1998 embassy bombings, though directed at American interests, killed many Muslims and were not supported by an authoritative fatwa), or as counterproductive (the 9/11 attacks provoked a backlash that resulted in the invasion and occupation of Muslim countries, the killing of many Muslims, and severe setbacks to the cause of spreading Islam). Yet, on other occasions, particularly in the Arab press, the Ikhwan embraces violence — fueling Hamas and endorsing the murder of Americans in Iraq.

In addition, the Brotherhood even continues to lionize Osama bin Laden. In 2008, for example, “Supreme Guide” Muhammad Mahdi Akef lauded al-Qaeda’s emir, saying that bin Laden is not a terrorist at all but a “mujahid,” a term of honor for a jihad warrior. The Supreme Guide had “no doubt” about bin Laden’s “sincerity in resisting the occupation,” a point on which he proclaimed bin Laden “close to Allah on high.” Yes, Akef said, the Brotherhood opposed the killing of “civilians” — and note that, in Brotherhood ideology, one who assists “occupiers” or is deemed to oppose Islam is not a civilian. But Akef affirmed the Brotherhood’s support for al-Qaeda’s “activities against the occupiers.”

Well, the death of bin Laden has the Brothers at it again. At Pajamas, Sami al-Abasi reports that, in reacting to the al-Qaeda emir’s death, the Brothers put out starkly different statements in English and Arabic.

One of the Brotherhood’s leading members, Essam al-Erian, told Reuters that bin Laden was “one of the reasons for which violence has been practised in the world” -- a carefully tailored statement that did not necessarily cast bin Laden as the culprit in this "violence" but would surely be taken by the Brotherhood’s Western apologists as if it had. With bin Laden’s death, Erian said, this “reason for violence” has been “removed,” and therefore that “it is time for Obama to pull out of Afghanistan and Iraq and end the occupation of U.S. and Western forces around the world that have for so long harmed Muslim countries.” Note that, as always, the Brotherhood's bottom line just happens to be the same bottom line al-Qaeda desires -- regardless of what the Brothers may have said about bin Laden in the course of getting down to it.

Now, behold the narrative that appears on the Brotherhood’s Arabic-language website (which Mr. al-Abasi includes at the end of his post). As al-Abasi observes, it not only says nothing disparaging about bin Laden; it actually refers to him as “Sheikh” Osama bin Laden, using an honorific intended to convey admiration. Moreover, the raid against bin Laden’s compound is condemned as an assassination, and the Brotherhood demands that America stay out of the internal affairs of Arab and Muslim countries, blaming the West for launching a media campaign to demonize Islam. Speaking specifically about Iraq and Afghanistan, the Brotherhood “confirms that the legitimate resistance against foreign occupation, for any country is a legitimate right guaranteed by divine law and international convention.” As al-Abasi correctly concludes:

By supporting violence against America’s troops in Muslim lands, the MB essentially defends the al-Qaeda campaigns in Afghanistan and Iraq. The [Brotherhood] also instructs the United States to stop its intelligence operations in Muslim lands, the key source of information that led to bin Laden’s killing. It furthers support the “legitimate resistance” of Palestinian groups against Israel, and tells the U.S. to do the same. So while the MB claims to have renounced violence, it has honored bin Laden as a sheikh and called for terrorism against American forces in Muslim lands.

Er, Not Exactly

Bin Laden did not use a woman as a human shield, he didn't shoot it out with our SEALs, he was unarmed, and a different son of his -- Hamza, not Khalid -- was killed. Otherwise, the White House's ol' reliable, John Brennan, had the raid exactly right. At Politico, Josh Gerstein has details on the administration's walk-back.

'We Removed the Taliban'?

One aspect of President Obama's speech last night -- part of the "If it's on my watch I did it, if it's on Bush's watch we did it" theme -- is particularly grating. Obama said:

Over the last 10 years, thanks to the tireless and heroic work of our military and our counterterrorism professionals, we’ve made great strides in [the war against al Qaeda]. We’ve disrupted terrorist attacks and strengthened our homeland defense.  In Afghanistan, we removed the Taliban government, which had given bin Laden and al Qaeda safe haven and support. 

I pass over for now the fact that "we" disrupted terrorist attacks and strengthened our homeland defense by tactics like interrogation and stepped up surveillance that Obama has disparaged. Obama brags that "we" removed the Taliban. But "we" did that a decade ago. In recent months, the Obama policy has actually been to negotiate with the Taliban -- i.e., to encourage Karzai to negotiate with the Taliban -- with an eye toward integrating the Taliban in Afghanistan's final political settlement. And that was even before Karzai's regime allowed 500 Taliban members -- including scores of commanders -- to escape from a prison in Kandahar a few days ago so they can rejoin the jihad.

We removed the Taliban?

A Different Kind of Justice

‘Justice has been done.” That was President Obama’s succinct assessment of the killing of Osama bin Laden by U.S. special-ops forces, carried out at his direction on Sunday. “We will be true to the values that make us who we are,” he said. Those values are what led him to pronounce justice done -- no trial and no court authorization, and, for once, “habeas corpus” really meant that our government had the body, a corpse to identify, not a defendant to process.

It is worth remembering that bin Laden had been under indictment by the Justice Department for 13 years when he finally met his demise yesterday. A federal grand jury in Manhattan had charged him with terrorism conspiracy in June 1998, after he had, yet again, declared war on the United States. He’d already been doing that for years. It was only a few weeks later, on Aug. 7, 1998, that his al-Qaeda cells in eastern Africa bombed the American embassies in Nairobi and Dar es Salaam -- the first 224 of what became the thousands of innocents the master terrorist would murder in the ensuing decade-plus.

#ad#I argued in The Weekly Standard at the time (“The Sudan Connection: The Missing Link in U.S. Terrorism Policy”) that “justice” for bin Laden and the global jihad backed by several rogue nations -- Iran, Iraq, Afghanistan, and Sudan, for starters -- was to regard them as a national-security challenge crying out for a military response. They were manifestly not a crime problem to be managed by FBI agents and prosecutors like me.

Yet, prosecution of crime rather than war had been the Clinton-administration counterterrorism strategy, beginning with the 1993 World Trade Center bombing. It was maintained through a plot to bomb New York City landmarks later that year and a conspiracy to blow U.S. airliners out of the sky over the Pacific thereafter. The law-enforcement approach was even reaffirmed after jihadists killed 19 U.S. airmen in the 1996 Khobar Towers bombing in Saudi Arabia -- an attack the Clinton administration soon learned Iran had orchestrated, the mullahs and their forward militia, Hezbollah, having had cooperative relations with al-Qaeda since the early nineties.

Still nothing changed -- in fact, President Clinton stood idle as the Saudis obstructed the FBI’s fruitless effort to investigate Khobar Towers. The ’98 embassy bombings did briefly stir Bill Clinton to lob a few cruise missiles bin Laden’s way -- including at a Sudanese pharmaceutical factory that Clintonistas to this day maintain was a joint WMD venture involving bin Laden and Saddam Hussein. But that moment of clarity quickly passed -- the threat was growing by leaps and bounds as threats are certain to do when met with fecklessness, but the Lewinsky scandal was finally burning out and with it Clinton’s impetus to treat a war like a war.

By the end of 1999, the 9/11 Commission gingerly recounts, Clinton had so befuddled the CIA regarding whether covert agents had authority to kill bin Laden that several golden opportunities were lost. Meanwhile, al-Qaeda continued to plan stunning operations, including the bombing of a naval destroyer, the U.S.S. Cole, in October 2000 -- murdering 17 U.S. sailors as Clinton made his exit from the stage.

Prompted by the 9/11 atrocities, a new administration dramatically changed course. At least for a time, the government’s sense of “justice” was brought in line with the public’s: Pres. George W. Bush pledged that we would hunt terror cells down wherever they operated, and we would put the rogue regimes that abetted al-Qaeda to the test of changing their ways or feeling the wrath of the world’s lone superpower.

The Taliban, al-Qaeda’s hosts in Afghanistan, were driven from power, and bin Laden’s sometime-ally, Saddam Hussein, soon followed. Yet, bin Laden himself eluded our armed forces and intelligence services. Simultaneously, Iraq devolved from a spectacularly swift vindication of the Bush doctrine to a bloody, years-long misadventure in Islamic nation-building. The appetite for taking on the regimes that enable al-Qaeda to project outsize power was lost once the public saw that the price-tag would include precious lives and untold billions to be sunk into the dubious construction of sharia-lite democracies.

#page#In the fallout, the hard Left recovered its voice. In early 2004, Howard Dean -- who was then leading the Democratic presidential field and would go on to become chairman of the Democratic National Committee -- explained that he could not judge what should befall bin Laden because the terror master had not yet had a fair trial and been convicted by a jury. Those in “positions of executive power,” he declaimed, should not “prejudge jury trials.”

Similarly, the ever-malleable Eric Holder, Clinton’s deputy attorney general, was back to portraying Bush counterterrorism as a borderline criminal exercise in Constitution-shredding. Immediately after 9/11, when Democrats had been anxious to prove they could be just as tough on terrorists as Bush, Holder had admonished a CNN host that “we are in the middle of a war,” and thus that captured terrorists should be detained without trial as “combatants” -- in addition to being denied Geneva Convention rights so that “we#...#have an opportunity to interrogate them and find out what their future plans might be, where other cells are located.” But by 2008, while serving as a senior adviser to the Obama campaign, Holder was bemoaning Bush’s failure to treat captured terrorists “in accordance with the Geneva Conventions,” and condemning Bush counterterrorism as a green light for “torture” and a betrayal of the “rule of law.” One wonders what the attorney general will make of the fact that the intelligence derived from interrogating detainees proved essential in confirming bin Laden’s location for yesterday’s successful operation.

#ad#Obama himself campaigned on promises to end Bush counterterrorism, shutter Gitmo, and return to Clinton’s law-enforcement approach. There was a caveat, though, an indication that he had learned something from Clinton’s missteps. The candidate promised that he would attack al-Qaeda havens, focusing particularly on Pakistan -- which he limned as especially unreliable. The then-senator warned that if Pakistan’s government did not clean up its own mess, he would not hesitate to attack its terrorist redoubts.

For his stance, the McCain campaign poked fun at his purportedly reckless provocation of ally. As some of us said at the time, however, Obama was entirely right.

There is much fault to find in Obama’s overall approach to the Islamist threat. His management of the vaunted “Arab Spring” has been incoherent, and there is dizzying discord between his rhetoric and actions when it comes to what “justice” for terrorists should entail -- gold-plated due process for 9/11 architect Khalid Sheikh Mohammed versus lethal special forces for 9/11 maestro bin Laden. Nevertheless, Obama has clearly figured out that arrest warrants and subpoenas are not going to get it done in places like Islamabad, and that if a U.S. president is not clear in his directions to kill the jihad’s lead actors, it is they who will do the killing.

The slaying of this monster, the peerless capability of our armed forces it reaffirms, and the demonstration of national unity it has sparked, make this a great day for our country. They suggest, moreover, something else worth celebrating: the outlines of an effective, practical, and economic counterterrorism.

The criminal-justice system is not a deterrent to foreign terror networks that are bivouacked outside our country and thus outside the jurisdiction of its investigative agencies and courts. Nor are nation-building enterprises the answer: They are prohibitively costly in blood and treasure; they inspire sharia-based attacks against us; and they won’t make us safer -- terrorists are expert at exploiting the freedoms available in democratic societies, and there is no reason to believe that country A’s becoming a democracy would make country B safer from jihadist terror. The future will not belong to the law-enforcement approach or the democracy project.

It will belong to small-scale special-forces operations that target top jihadists and their cells. It will entail diplomatic pressure and, when necessary, limited military engagements against terror-sponsoring regimes. It will feature less indulgence of faux allies like Pakistan, which do more to aid than confront the jihad. It will fashion a new legal system for the indefinite detention of al-Qaeda operatives who, for intelligence reasons, cannot or should not be tried in civilian courts. And it will require aggressive prosecution of al-Qaeda imitators inside our country, as well as those who materially support terrorists.

That’s the justice that reflects enduring American values. Here’s hoping we’ll someday remember May 1, 2011, as the day the nation came together around it -- amid a warm glow of patriotism and a monumental defeat for our enemies.

— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.

The bin Laden Bump

A recurring question I'm getting today is whether Osama's demise equals Obama's political coup. Duh. Of course the president will get a bump in the polls, and he will deserve it. It will also be very short-lived.

In terms of a presidential election cycle, bin Laden has been killed at a time roughly similar to the point in the ’92 cycle when President George H.W. Bush won the Gulf War. (I realize there are a couple of months' difference, but that's immaterial.) The victory gave Bush approval ratings that brushed 90 percent -- i.e., significantly higher than President Obama's are today. Just as now, it was unclear which member of the opposition party would run against Bush (unlike the case with Obama, Bush's sky-rocketing polls actually convinced big-name Dems not to make the race). Bush seemed like a shoo-in -- which Obama does not. But the election turned out to be about the economy . . . which was a dream economy compared to the one we're in.

President Obama deserves kudos for the vigor with which he has attacked al Qaeda leaders and cells in Pakistan. As I argued during the campaign, his position on the need to do this was far better than that of Sen. McCain -- who regarded Pakistan as a valuable ally and portrayed Obama as reckless for threatening to conduct attacks there. Obama is also to be applauded for authorizing yesterday's daring mission. President Carter's failed mission to rescue the hostages in Iran is testament to how much can go wrong and how politically devastating it can be when such a mission fails. And all you need to do is read the pertinent section of the 9/11 Commission report about President Clinton's failure to give clear authorization to kill bin Laden when we had several chances to do so in 1998--99 -- i.e., before bin Laden bombed the Cole bombing and ordered 9/11. That it would have been irresponsible to pass up this latest chance to rid the world of this menace does not mean acting responsibly was without risk for Obama. We should commend him for pulling the trigger.

Still, the operation cannot but underscore the mind-bending inconsistencies in Obama's counterterrorism -- gold-plated due process for some 9/11 terrorists but assassination for others; the haste to close Gitmo even as it continues to serve valuable security purposes; the paralysis of interrogation policies that (as Shannen, Steve, and others point out) were key to obtaining intelligence that not only thwarts attacks but enabled us to find bin Laden; the crackdown against al Qaeda while engaging the Muslim Brotherhood despite its sustenance of Hamas; the avowed commitment to fight terrorism while demonstrating indifference to the promotion of terrorism by Iran, Syria, and other rogue regimes; rhetorically lashing out at the Taliban (as Obama did in yesterday's speech) while seeking a negotiated settlement with the Taliban; and so on.

Obama rarely talks about the war -- indeed, he resists referring to war as "war." This, coupled with his paradoxical approach to it, will limit the political benefit he derives from positive developments in the war, including one as extremely positive as taking out bin Laden. Meanwhile, the urgency of debt, unemployment, and climbing consumer prices will very quickly divert the public's attention from bin Laden. The 2012 election will probably not be any more influenced by yesterday's successful operation than the 1992 election was by victory in the Gulf War.

We ought to take this very good news for what it is -- very good news. Despite the irritating self-absorption of last night's speech that Mark aptly describes, we should praise the president and, especially, our peerless military forces for a job well done. And we should forget about the politics of this. Whatever bump Obama gets will be about as enduring as tomorrow's trip to the station to fill ’er up with $5/gallon gas. 

Obama DOJ Scuttled Other Indictments Against Islamists, Congressional Investigators Say

At Pajamas, Patrick Poole, who broke the story that the Obama Justice Department quashed an effort by the U.S. attorney in Dallas to indict a top CAIR official, has now reported that political appointees in the Obama Justice Department also killed an effort by the U.S. attorney in Alexandria to indict senior leaders of other Islamist groups with ties to the Muslim Brotherhood. 

Congressional sources, who were apparently spurred to investigate by Poole's reporting about the dropping of the CAIR case, have reportedly told Poole that another case

scuttled by Assistant Attorney General David Kris (who wrote the memo declining to prosecute Omar Ahmad in the Holy Land Foundation case) was a tax evasion and money laundering prosecution prepared by the U.S. attorney’s office in the eastern district of Virginia. The targets of these indictments would have been several Muslim leaders of the International Institute of Islamic Thought (IIIT) and the now-defunct SAAR Foundation/SAFA Group, who were investigated and raided for a wide range of activities to support foreign terrorist organizations.

That case was part of an investigation that targeted Palestinian Islamic Jihad (PIJ) leader Sami Al-Arian, who was  charged with contempt by the federal judge in the IIIT/SAAR case for refusing to testify about how the groups had financially and materially supported Al-Arian’s PIJ front based in Tampa, Florida, despite his plea agreement requiring him to do so. Because of Al-Arian’s lack of cooperation in the IIIT/SAAR case, federal prosecutors were only prepared to indict the IIIT/SAAR leaders on money laundering and tax evasion charges.

Congressional investigators who spoke to me also say that one of the Muslim leaders targeted by these indictments was Jamal Barzinji, a longtime IIIT official and former national president of the Muslim Student Association (whose terror ties I reported on here at PJM last August).

At the time of the raids on IIIT and SAAR back in 2003, U.S. Customs Service Special Agent David Kane testified in an  affidavit requesting the search warrants, filed in federal court, that Barzinji “is not only closely associated with PIJ (as evidenced by ties to Al-Arian, including documents seized in Tampa in 1995 reflecting direct correspondence between Barzinji and Al-Arian), but also with HAMAS.”

In 2008, Barzinji donated $1,000 to the Barack Obama presidential campaign. In the 2009-2010 cycle, he donated to three Democrats: Rep. Jim Moran (VA); Rep. Keith Ellison (MN), the first Muslim congressman; and Sen. Jim Webb (VA). In 2002, Moran returned $10,000 in campaign contributions from officials associated with IIIT and SAAR....

'Here's to al-Qaeda'

Nearly 20 years ago, I asked the late William Kunstler about his philosophy of lawyering. A flamboyant leftist who proudly represented jihadists just as he proudly represented many other anti-American radicals, Bill succinctly replied, “Everybody’s entitled to a lawyer, but nobody’s entitled to me!”

When speaking with him outside the lines of litigation, I was always beguiled by the aging rogue’s lack of pretense. Kunstler maintained that attorneys are under no obligation to take on every client who walks in the door. Once you took a case, though, it was your duty to give it your all. And because giving his all and zealously ensuring that the client got every available advantage was the attorney’s first duty, a lawyer had to be given a lot of leeway in choosing the clients and causes to which he would dedicate himself. It was one of the few things on which we agreed.

#ad#In these chats, there was about Kunstler a refreshing absence of twaddle about the lofty nobility of his choices, a marked contrast to the drivel that flows from the pen of Conor Friedersdorf. At The Atlantic on Thursday, Mr. Friedersdorf delivered himself of what, even by his standards, was a shrill rant, provoked by my recent column on the hypocrisy of the Lawyer Left, which finds the American people’s support of traditional marriage too distasteful to defend but can’t queue up fast enough to volunteer its wares to assorted radicals, psychopaths, and deadbeats.

I used the occasion of King & Spalding’s abandonment of its Defense of Marriage Act clients -- congressional representatives of the American people seeking to turn back challenges to DOMA -- to highlight facts the legal profession, in its arrogance, dares you not to notice.

As an institution, the profession is the vanguard of the movement Left. Its votaries make their choices about representation based on progressive politics. Attorneys who are resistant to the cause but desperate to remain in the club are pressured to conform or at the very least to profess admiration for the heroic good faith in which the Lawyer Left remorselessly pursues its agenda. Thus can the profession reliably bank on cover from the GOP Lawyers Guild whenever a left-wing attorney gets nominated to a high government post or undertakes to champion some anti-bourgeois cause -- and also bank on there being no need to return the favor.

K&S understands how the game is played. The firm wants to be perceived as supportive of gay marriage. In the same way, through its pro bono work for terrorists and death-row murderers, it wants to be perceived as supportive of judicializing warfare and expanding the rights of criminals. The firm figures it can’t afford to be on the wrong side of the culture war.

To most Americans, the progressive punch-list is deeply unpopular. Fortunately, progressives like Friedersdorf are much smarter than the rest of us -- just like our progressive president, who, we learned from the Washington Post’s Dana Milbank this week, is actually too smart to be president. Part of what makes them so smart is their Alinskyite penchant for coopting causes and language. Friedersdorf is a “conservative,” don’t you know, skilled at cloaking legal radicalism in high-minded tropes about fidelity to our constitutional traditions.

He is in a snit because, unlike the GOP Lawyers Guild he prefers, I can’t seem to follow the Gitmo script, which calls for showering the Lawyer Left with fawning praise that can be used like a Black Panther billyclub to beat down conservative critics. Specifically, Friedersdorf is outraged by my “brazen” repetition of an effective critique the Left thought it had smothered months ago: namely, that it is perfectly fitting to label as the “al-Qaeda Seven” a group of seven lawyers who, before joining the Obama Justice Department, volunteered their services to the enemy in wartime.

I don’t know where Friedersdorf was when the Lawyer Left was calling us Bushitler-era prosecutors “the American Taliban.” In any case, as I’ve made clear before, those who coined the term “al-Qaeda Seven” were obviously not saying these lawyers were members of al-Qaeda or that they endorsed terrorism -- though they are, for my taste, too indifferent to the barbarity of terrorism. The point is that they made a choice to do something they did not have to do, that no lawyer had to do. It was therefore fair to judge them on their choice, to infer a sympathetic ear for the terrorist portrayal of a corrupt and unjust America. It was also reasonable to predict that, on their watch, the Justice Department would do things like return terrorism to a criminal-justice problem rather than a wartime military challenge, push for enhanced due process for terrorists, turn the battlefield into a crime scene complete with Miranda warnings for captured combatants, and elevate “Muslim outreach” over aggressive enforcement against Islamist groups that materially support terrorists. (Guess what happened.)

#page#Calling these attorneys the “al-Qaeda Seven” is, I contend, no more offensive than calling attorneys who choose to represent the mob “mob lawyers.” Outrageous, counters Friedersdorf. I need to understand, he inveighs, that “the Gitmo bar wasn’t volunteering their services on behalf of the enemy -- they were working on behalf of every citizen who values the rule of law and the most basic norms of Western justice.” In a hilarious bit of unintended irony, Friedersdorf consigns me -- due to my vulgarity and lack of appreciation of the heroic contribution the terrorists’ volunteer lawyers have made to our constitutional system -- to “the pantheon of American McCarthyites.” Hmm, “McCarthy the McCarthyite” -- how very clever. And thank goodness Conor would never stoop to lodging “one of the most scurrilous charges recently made in American politics.”

#ad#Life is too short for me to follow Friedersdorf’s meanderings, so I confess to not knowing whether he is a lawyer. Suffice it to say, though, that he doesn’t know much about the law or our constitutional system. Some basics: The centuries-old law of war is the “rule of law” in wartime. Under this basic norm of Western justice, enemy combatants may be held without charge or trial until the conclusion of hostilities. When they are kept away from U.S. courts, it is not, as Friedersdorf contends, indicative of an insidious conspiracy. The decision to detain them is no more a judicial matter than is the decision to kill them with Predator drones.

In the history of the United States, millions of aliens have been detained because they were suspected by our warfighters of conducting operations on behalf of the enemy. No doubt, some have been innocent, as Friedersdorf says some of the Gitmo detainees have been innocent. But in wartime, the priority -- until recently -- has been victory, not due process for the enemy. In fact, if Congress formally declares war against a country, it has been the law for over two centuries that the nationals of that country who happen to be in our country may be detained; they don’t have to be “guilty” of anything other than the allegiance to the enemy their citizenship implies.

Never had it been the case, prior to the Lawyer Left’s activism in this war, that the rule of law was thought to require giving enemy detainees access to our courts. In fact, the post–World War II Supreme Court rejected the idea as absurd. None other than Justice Robert Jackson, a progressive named to the Supreme Court by FDR after serving as his attorney general, explained that to permit such a thing

would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.

Exhorted by the Lawyer Left, five willful justices on the Supreme Court abandoned this sensible jurisprudence, laying out the courthouse welcome mat for alien terrorists who target Americans for mass murder. Pace Friedersdorf, this was not reflective of the rule of law or any sort of Western norm. It was a radical departure. Those who imposed it were actually working against every citizen who values the wartime rule of law.

Our constitutional system had always reposed responsibility for handling enemy prisoners in the political branches, not the courts. This was not because the framers were insensitive to the fact that hellish things happen in wartime, including the prisoner abuse that so troubles Friedersdorf. They simply trusted the American people to address those matters through their elected officials in Congress and the executive branch -- both of which, by the way, have aggressively investigated prisoner abuse in the War on Terror, resulting in severe punishments for malevolent officials. The framers wanted national-security decisions to be made by political actors accountable to the people whose lives were at stake. The courts, quite intentionally, are insulated from political accountability; their institutional responsibility to ensure fairness to parties in litigation inevitably inflates legal protections, and we can’t vote them out of office if these ever-evolving protections compromise our security.

Even the current Supreme Court, which has turned the framers’ construct on its head, did not require that war prisoners be given counsel for these novel legal challenges to their detention. Other than the very few who are accused of war crimes (and are guaranteed military counsel), the detainees are not defendants accused of a crime. Only accused defendants are guaranteed counsel in our system. The detainees, to the contrary, are plaintiffs who’ve been allowed by the courts to sue our nation in the middle of their war to destroy our nation. Their suits are habeas corpus actions, and there is no right to counsel.

#page#Millions of Americans detained in our civilian prisons file habeas suits, alleging that the procedures that landed them in jail, or their conditions of confinement, are unlawful. Our law invites this, but the inmates must either represent themselves or find a lawyer willing to take the case. For the lawyer, that often means choosing to work for free -- that is, deciding that the inmate’s cause is more worth his time and effort than other pro bono causes (say, representing CIA interrogators or defending DOMA) to which he’d otherwise be able to donate his services.

That brings us to the al-Qaeda Seven and the rest of the Gitmo bar. There is no limit to the number of causes these lawyers could have volunteered to represent. You cannot even say of their Gitmo clients, as Kunstler said about criminal defendants, that “everybody’s entitled to a lawyer, but nobody’s entitled to me.” Enemy prisoners have no entitlement to any lawyer, much less to a particular lawyer. An attorney who chooses to work for such clients has made a conscious choice to help them litigate their wartime suits against the American people -- just like the conscious choices King & Spalding makes to represent murderers on death row or to drop DOMA like a hot potato.

#ad#The world’s Friedersdorfs help the Lawyer Left obscure this uncongenial fact by swaddling such choices in rhetorical majesty: We’re instructed that they are selflessly serving the “rule of law,” “our values,” “our commitment to justice,” “our Western norms,” “our constitutional traditions,” etc. We are saps if we fall for this bloviating.

John Yoo is a brilliant, ethical lawyer who, while at the Justice Department, was tasked with mapping the parameters of interrogation law so that CIA officials would know what they could and could not do to high-level al-Qaeda captives. It wasn’t Yoo’s policy. He was simply an attorney advising a client. Did the Lawyer Left say he was merely fulfilling a cherished constitutional role? Did they depict him as a latter-day John Adams, honorably representing an unpopular cause? Of course not: They tried, instead, to ruin him. And when I’m done writing this, do you figure they’re going to say, “McCarthy’s just a lawyer acting in the best professional tradition of ensuring that all sides are represented in public debates about the law”? No, they only say that when you’re taking their side. Dare go off the reservation and you’ve cemented your place in “the pantheon of American McCarthyites.”

It’s a con job. The Lawyer Left promotes a cause, not the Constitution. They’re within their rights to do that -- it’s still a moderately free country, and I’m not suggesting that anyone try to destroy their lives and livelihoods like they tried to destroy Yoo’s. I just don’t see any reason to pretend that their choices reflect a high calling rather than a practical political strategy, one that has implications when Americans make the mistake of empowering them to formulate policy.

Kunstler once won a case for the New England crime boss Ray Patriarcha, one of the many well-heeled mobsters he represented, effectively redistributing their wealth to underwrite his labors of love on behalf of anti-American radicals who could not afford him. At a swank restaurant for the ensuing victory celebration, the don invited him to propose a toast. Regrettably, Conor Friedersdorf wasn’t on hand to advise that he effuse about “the rule of law” and “the most basic norms of Western justice.” Kunstler raised his glass and exclaimed, “Here’s to crime.”

— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.

Birth Certificate: Where Are the Indignant Questions to Obama?

I certainly get why National Review, among others, is pressing Joseph Farah, World Net Daily, and others who've been aggressively pushing the matter of President Obama's birth certificate and, derivatively, questioning his constitutional qualifications to be president. And though I've never taken Donald Trump seriously as a presidential candidate, I also appreciate why the Republican Beltway insiders are gleefully joining the mainstream media in ridiculing him as a buffoon. But what I don't get is why there is not more anger at Obama and that selfsame mainstream media.

One of the things Obama said yesterday was unintentionally striking. He contended that no one should ever have questioned his birth certificate because credible people who had seen it had described it in affidavits. Naturally, he didn't mention why they were in the position of having to describe it in affidavits: namely, because Obama had refused to authorize production of the actual birth certificate, which he could have done at any moment over the last three years. Look how easy it would have been.

When I read in Dan's post yesterday about how the White House was also releasing the relevant correspondence between Obama's lawyers and the Hawaii health department regarding the certificate, I said to myself: “Okay, we are finally going to learn that there's been some bureaucratic complication beneath all this intrigue.” But no: The request for certified copies of the birth certificate was (finally) made last week, on a Friday, in two short letters -- including a four-sentence letter signed by the president that obviously took him considerably less time to review than it takes to stretch before teeing off at the first hole. The birth certificate was produced the following business day (Monday) -- with the health department expressing hope that its production "will end the numerous inquiries" it had gotten over the years, which "have been disruptive to staff operations and have strained State resources." And Obama was able to do his dog-and-pony show yesterday morning, only five days after asking the health department to produce the document. 

If George W. Bush, Sarah Palin, or even a Republican the media likes (say, John McCain) had taken purposeful steps to block examination of so basic a document, the media would surely have turned such obstinacy into a scandal. The public might not have leapt to extravagant conclusions about whether they'd really been born in Kenya, or on Mars, or wherever. But they'd have thought it was intolerably strange that campaigns were retaining lawyers and amassing affidavits rather than just producing a seemingly innocuous, readily producible document. The story would never have been about the people asking for the birth certificate; it would have been about the candidate who was moving heaven and earth to prevent people from seeing it.

And let's not ignore that Obama did move heaven and earth. This is not just a matter of him thumbing his nose at a fringe collection of nutty "birthers." There have been several court cases. It is flat out bizarre that one should have to be sued to compel conformance with a routine that millions of Americans comply with every day. Many of these court cases, if not all, could have been short-circuited (indeed, many of the later ones would not have been filed at all) if Obama had just produced the birth certificate. Instead, he not only refused to produce it; he and his campaign paid thousands of dollars in legal fees (in some places it is reported to be well over a million dollars) to fight the lawsuits -- and Obama's lawyers even threatened to seek disciplinary sanctions against lawyers for daring to file the lawsuits. Since Obama has been president, moreover, not just the time of courts and private lawyers has been tied up; government lawyers have had to spend their time -- on the public’s dime -- on this nonsense.

There appears to be nothing remarkable about the president’s long-form birth certificate. As I’ve said before, the vast majority of people have long rightly accepted the fact that he was born in Hawaii and is an American citizen, no meaningful evidence to the contrary every having been produced to rebut the short-form certificate and the contemporaneous birth announcements in local newspapers. The constitutional question material to the matter of Obama’s eligibility -- and one that is unlikely ever to get serious consideration -- is whether Obama is a “natural born” citizen. That question centers on the ramifications, if any, of the fact that Obama’s father was not an American, and of Obama’s status as a dual citizen (of Kenya for a time, and possibly of Indonesia). Obama had to know that he had nothing to fear from production of the long-form certificate on this score -- it doesn’t provide any relevant information that wasn’t already known.

So, assuming as we should the legitimacy of the long-form birth certificate produced yesterday, the only thing that makes sense is that Obama knows the mainstream media is in his hip pocket. That is, he knew that he would not be held to the same standard as other politicians, and that if he acted in an unreasonable manner by withholding basic, easily available information that any other person seeking the presidency would be expected -- be compelled -- to produce, the media would portray as weirdos those demanding the information, not Obama and his stonewalling accomplices. And he also knows that, having now finally produced the document only because the game was starting to hurt him politically, the media will not focus on how easy it would have been to produce the birth certificate three years ago, or on how much time and money has been wasted by his gamesmanship; they’ll instead portray him as beleaguered and the people who have been seeking the basic information (i.e., doing the media’s job) as discredited whackos.

It’s hard to say what’s more depressing, Obama’s cynicism or the zeal with which the media does his bidding.