Andrew C. McCarthy's Blog, page 75

I'll See Your Cyberwar and Raise You One Subpoena

Referring to the feckless cease-and-desist letter the State Department's Harold Koh sent to Wikileaker Julian Assange, Jonah aptly says in his column today, "When lawyers run your foreign policy, this is what passes for a blistering counterattack." We have seen this again and again over the years, and it is probably the central theme of my Willful Blindness. I contended there that putting attorneys in charge of national security perfectly suits a government that is too paralyzed to do anything meaningful but knows, politically, that it must appear to do something. 

In national-security matters, litigation (or the threat of it) creates the illusion of robust government action. Even domestically, where U.S. law applies everywhere and U.S. executive agencies enforce the legal maneuvers of government lawyers, it is highly overrated. Between the filing of a complaint, the follow up of an indictment, the press releases and press conference that attend each, the pretrial filings and hearings, the discovery disclosures, etc., the process makes it look like real progress is being made and that lots of offenders are being brought to heel -- when in reality, you may be a year or two down the line without doing anything more than getting a defendant or two to the start of a long trial.

But legal jousts are close to pointless in the international arena, where U.S. law does not apply and foreign agencies yawn and snicker at the exertions of U.S. prosecutors and State Department lawyers. As I've pointed out before, bin Laden has been under indictment since June 1998; Zawahiri since 1999. When he was apprehended in Pakistan in 2003, KSM had been under indictment for about seven years -- and his capture owed to wartime operations, not the criminal justice process. The Brits have been holding a couple of the embassy bombers for over a decade -- they're among our best friends in world, but we can't get them to extradite terrorists to us, even after we transfer Gitmo detainee terrorists to them.

The bad guys know all this, of course. For that reason, the problem is not just that legal responses to foreign threats to our security are ineffective; they encourage more threats (and worse) because the bad guys know we are not serious about defending ourselves -- they know they can provoke with impunity.

Foreign affairs are the business of politics, not law. Harold Koh can send his letters and Attorney General Holder can seek indictments. If we're lucky, we might see Assange in an American courtroom in a decade or two -- during which we'll be about as effective in halting his cyberwar as we have been in stopping bin Laden and Zawahiri for the past dozen years. If you want to stop him, you've got to take real action -- diplomatic pressure and military/intelligence operations. Illusory legal action is not going to cut it.

I should probably add a concession that Dean Koh's letter, though ineffective, is a sign of progress. As Bret Stephens explained in the WSJ yesterday,

better late than never. Last week, State Department legal adviser Harold Koh sent a stern letter to Mr. Assange's lawyer warning of the "grave consequences" that would flow from publication. Alas, none of the consequences had anything to do with Mr. Assange, which might explain why the letter had no effect. But given that this is the same Mr. Koh who, as dean of Yale Law School, pompously lectured the Senate Judiciary Committee in 2008 about the evils of "excessive government secrecy," his letter still represents a significant change of heart.

Andrew C. McCarthy

Reid Buckley on the Mike Church show

Reid Buckley's new book, The Idiocy of Assent, is officially published tomorrow, and Mike Church interviewed him about it on his show this morning. It's here.

Andrew C. McCarthy

Does the First Amendment Mean What It Says Regarding Speech?

As I noted earlier, yesterday's column was about WikiLeaks and dealt with whether there is a public "right to know." In part, that poses the question whether the First Amendment permits the government to limit what newspapers may publish. I made the following assertion:

From its inception, the First Amendment has never been understood to mean what it says -- just ask the Times, a notorious champion of speech-stifling campaign finance “reform” as well as “hate speech” restrictions. Where speech is concerned, civil libertarians and devotees of the “living Constitution” see the First Amendment as an “aspiration, to be given meaning over time,” as the University of Chicago’s Geoffrey Stone has put it.

I should perhaps have been clearer that I am not a devotee of the "living Constitution." If you read my stuff, you already know that. Moreover, I wrote a pretty spirited dissent from Professor Stone's engaging book, Perilous Times: Free Speech in Wartime, for the March 2005 edition of Commentary (my essay was called "Free Speech for Terrorists?"). Like Justice Scalia, I like my Constitution dead, thank you very much, and think we should use its amendment process if we want to liven it up.

Nevertheless, I've always taken the language of the First Amendment's free speech clause -- "Congress shall make no law ... abridging the freedom of speech, or of the press" -- to be more sweeping than the freedom it was understood to convey. That's why I said, probably too off-handedly, that "the First Amendment has never been understood to mean what it says." I don't agree with Prof. Stone's argument that it was an aspirational provision meant to evolve with the times. But I also don't think limitations on speech that were well known in the late 18th Century (e.g., obscenity, profanity, libel, "fighting words") were well conveyed by the free speech clause.

As usual, Ed Whelan to the rescue. Ed points out to me that the clause does not forbid Congress from abridging freedom of speech generally -- as if there were no conceivable restrictions. The framers took pains to insert the definite article the -- barring Congress from "abridging the freedom of speech." It seems like a small difference, but it is not. As Ed puts it, "the freedom of speech" was an "understood set of rights" at the time of the First Amendment's adoption. In other words, the text of the First Amendment does not prohibit all restrictions on speech. It merely prohibits abridgment of "the freedom of speech."  The question with respect to any speech restriction, therefore, is whether what it restricts is part of "the freedom of speech." 

Ed's point is consistent with Judge Bork's argument in Slouching Towards Gomorrah. Excerpting from the Supreme Court's 1942 decision in Chaplinsky v. New Hampshire, Judge Bork points out that

[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words -- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

As always, I am indebted to Ed and to Judge Bork, not only for the lesson in originalism but for the happy reminder that, as late as 1942, the Supreme Court assumed the existence of both truth and a social interest in order and morality!

Andrew C. McCarthy

Presumptuous Gray Lady

My column yesterday was about Wikileaks and the question of whether there really is a public "right to know" -- the vaunted rationale the New York Times trots out whenever it publishes sensitive information the disclosure of which harms U.S. interests. ("As daunting as it is to publish such material over official objections, it would be presumptuous to conclude that Americans have no right to know what is being done in their name.”) I've had some interesting feedback, which I'll get to in a subsequent post. For now, I am just annoyed -- as I am each day when Best of the Web arrives in my in-box -- that I'm not as smart as James Taranto.

On Monday, James featured this gem, contrasting the Times's explanations, almost exactly one year apart, for (a) why it was refusing to publish the Climategate emails that revealed the fraudulence of global warming (or is it "climate change"?) activists, and (b) why it was only too happy to aid and abet Julian Assange's cyber-war against America:

Two Papers in One!

"The documents appear to have been acquired illegally and contain all manner of private information and statements that were never intended for the public eye, so they won't be posted here."--New York Times, on the Climategate emails, Nov. 20, 2009

"The articles published today and in coming days are based on thousands of United States embassy cables, the daily reports from the field intended for the eyes of senior policy makers in Washington. . . . The Times believes that the documents serve an important public interest, illuminating the goals, successes, compromises and frustrations of American diplomacy in a way that other accounts cannot match."--New York Times, on the WikiLeaks documents, Nov. 29, 2010

Andrew C. McCarthy

Is There a Right to Know?

The question at the heart of the WikiLeaks scandal.

Why redact anything? That is the question that springs to mind in reading the self-justification offered by the New York Times for lending its megaphone to Wikileaks.



The paper is now publishing breathless reports, accompanied by verbatim excerpts, drawn from about a quarter-million sensitive U.S. government documents. This dump is much like the tranche of intelligence files leaked in October to the Times and other reliable media -- “reliable” in the sense that Wikileaks’ anti-American founder, Julian Assange, was confident these outlets would publish information whose revelation embarrasses the United States and endangers those who cooperate with our government.



#ad#Assange’s leaks are intended to be thematic. The first focused on American combat operations in Iraq. The new burst targets American diplomacy and is thus more wide-ranging. But each instance elucidates that our government, regardless of who is steering it, must operate in a dangerous world where, particularly in Islamic countries, there are bastions of virulent anti-Americanism. Our friends -- be they regimes, spies, well-wishers, or allies of convenience -- cooperate with U.S. officials at great risk to themselves.



For that reason, the Obama administration implored the Times not to publish the materials -- since, despite the fact that the entire cache of documents is available online, having the paper of record provide a reading guide to them greatly extends the damage done by their disclosure. The Gray Lady has largely rebuffed the president, except for an accommodation here and there. The paper explains its rationale this way: “As daunting as it is to publish such material over official objections, it would be presumptuous to conclude that Americans have no right to know what is being done in their name.”



Yet, it turns out the Times is plenty presumptuous. Its mawkish invocation of the public “right to know” comes only after the editors pat themselves on the back for what they’d have you see as their admirable restraint in withholding “information that would endanger confidential informants or compromise national security.” Of course, the administration’s precise point in pleading for nondisclosure is to protect U.S. informants and security -- and it knows far better than the Times could what revelations are likely to trigger threats.



The point, though, is that despite its self-serving blather about your supposed right to know everything that government does in your name, the Times isn’t opposed to suppressing information. It is opposed to government officials having the power to decide what gets suppressed. The Times wants that power for itself.



Should a newspaper, or any media outlet, have that power? That depends on whether you think there really is a public right to know. The Times’s claim of such a right is disingenuous, but the concept is a serious one. Our government, after all, is supposed to be our servant, not our master. The government was created by the American people, not the other way around. The federal government was, moreover, quite intentionally designed with severe limitations, not least the First Amendment’s command that Congress “make no law#...#abridging the freedom of speech, or of the press[.]”



So how could it be that government may tell people what they are at liberty to speak about, or tell a newspaper what it may publish? The answer to this question is political, not legal. Because we are conditioned to think of politics as dirty and every problem as a legal issue, this is more difficult for us than it ought to be. But it is simply a fact that the legal niceties here are very unsatisfying.



#page#From its inception, the First Amendment has never been understood to mean what it says -- just ask the Times, a notorious champion of speech-stifling campaign finance “reform” as well as “hate speech” restrictions. Where speech is concerned, civil libertarians and devotees of the “living Constitution” see the First Amendment as an “aspiration, to be given meaning over time,” as the University of Chicago’s Geoffrey Stone has put it.



There is surely something to this. Yes, the conceit that we all have a right to our opinion is written into the American DNA, and the notion that we are also entitled to our own facts is a staple of modern political discourse. Nevertheless, the reality is that Congress has enacted numerous laws abridging speech and publication since the Constitution’s adoption. Despite the First Amendment, many categories of speech have always been thought subject to regulation. Furthermore, the same Constitution has always made aiding and abetting enemies of the United States -- such as by the passing them information in wartime -- punishable as treason.



#ad#Free speech, like every other right, does not exist in a vacuum. It coexists with, and must make necessary accommodations to, other rights and privileges. These include our national security, without which the protection of speech and the press are not worth the parchment on which they are guaranteed. Accommodation is the business of politics, in the best sense of the term -- the sense that honors individual liberty but imposes limitations essential to the common good, subject to change by the American people based on their sense of the common good, the public interest.



Thus, to the extent there is a public “right to know,” there must also be limitations on that right, fixed in accordance with the kind of country the public wants the United States to be. If we are serious about preserving our nation against enemies who would destroy us, we must be able to punish the communication of sensitive information to those enemies. If we want to win wars, we must punish those who assist our enemies. And if we want to be a dominant player on the world stage, we must punish those who make it perilous or impractical for important international actors to cooperate with our government.



It sounds simple, but it’s not. The trade-offs can be excruciating. Of course we want to preserve our nation, but those who would like to destroy us may not always be a realistic threat. Of course we want to win wars, but our war aims are not always so clear -- many Americans who want to defeat al-Qaeda are indifferent or opposed to “Islamic outreach” and nation-building in Islamic countries, policies the government has conflated with war-fighting. As for dominance on the world stage, Americans right and left are increasingly skeptical: desirous of security from foreign threats in an increasingly dangerous world, but mindful of George Washington’s well-founded caution against too much foreign entanglement.



Wherever there is an obvious public interest, it is a fact of life that government officials will be apt to exploit it as a pretext for suppressing information that ought to be part of the debate over what exactly is in the public interest. Here’s the problem: The New York Times is just as apt to use that needed debate as a pretext for publishing information whose disclosure undermines the obvious public interest.



In the scheme of things, though neither is desirable, harming the public interest is worse than warping the debate. Furthermore, for all the venality of government -- for all the officials who want to suppress information because its disclosure will be embarrassing, rather than harmful -- government is at least accountable. Prosecutions against those who compromise national secrets are open to public scrutiny. Congress can convene hearings to demand answers from executive agencies that withhold information and to expose scandals. Both the president and Congress answer to the voters, who can remove them if they their abuse power or abide its abuse.



To whom does the New York Times answer?



— 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.

Andrew C. McCarthy

DOJ's Inspector General Packs It In

The National Law Journal [subscription required] reports that DOJ's longtime Inspector General, Glenn Fine, is stepping down. Mr. Fine was appointed by President Clinton in December 2000 ... just in time to be the internal investigator of the Bush Justice Department. For whatever reason, President Bush kept him in place throughout his (Bush's) tenure. Now, President Obama and Attorney General Holder will replace him.

Andrew C. McCarthy

An Investigation to Watch

Like my fellow NR cruisers I'm back on dry land and digging out, with very fond memories of time spent at sea with really wonderful people.

It doesn't seem as if there's been much discussion 'round these parts of a big story broken by the Wall Street Journal a few days ago: the SEC, FBI and federal prosecutors are targeting giant investors (big hedge funds, mutual funds, and other institutions) in what looks like a huge insider trading case. This ought to be very worrisome, especially in a bad economy.

As a prosecutor, I didn't like this species of securities fraud. The criminal law is supposed to be written with sufficient clarity that a person of ordinary intelligence is put on notice of what is forbidden. Insider trading, by contrast, is forever evolving.

It involves trading on the basis of "material, non-public" information. But what information is non-public? Besides the closely held business information one is told about, does it also include similar information that one figures out on his own? And who has a fiduciary duty not to share such information with others? The statutes and regs don't give us a definitive answer, and the courts, egged on by the Justice Department, are forever modifying the concept, attenuating it from obvious corporate insiders to persons who are six degrees of separation from those insiders but are somehow supposed to know, as they trade stocks, that they oughtn't have the advantage of the information that has fallen into their laps. 

What I most dislike, though, is the premise: the government's farcical belief that you can somehow create a marketplace that is perfectly fair and equal, and where no one trades on information until it is publicly available to everyone. Not only is that sheer lunacy. It further warps the value of stock shares by artificially delaying the revelation of important information that ought to be factored into the market price. So merit is penalized as the studious, shrewd, careful investor is portrayed as a cheat, while the small, unwitting investor can get burned because he trades stocks in the dark about important developments that haven't yet been publicized.

The new investigation seems to be taking insider trading to a new level: the government appears to be targeting those networks that gather, analyze and swap information -- as if markets are only fair if everyone is kept uninformed until some magic moment when the government decides the time is ripe for revelations and trades. Obviously, real fraud ought to be punished when it occurs, and we should withhold judgment until we see what the investigation yields. But what is so far known smacks of criminalizing ordinary business activity, and of pounding businesses with FBI raids of their records as well as the need to spend zillions on legal representation. I'm not sure that's the best way to spur an economic recovery.

Andrew C. McCarthy

TSA Is Terrible

There is no reason to treat everybody like a terrorist.

More years ago than I care to remember, I prosecuted some violent drug dealers. During the trial, we got some reliable information that their associates were transferring contraband to them in prison, and they were smuggling some of it into the courtroom. Federal marshals were rightly concerned that some items could be used as weapons.

We tailored a response to the circumstances. As any reasonable person would appreciate, that meant weighing the danger involved, the adequacy of various protective steps to counter the danger, the rights of people who would be affected, and the fact that our main concern was security -- not collecting evidence in anticipation of bringing charges.

#ad#I agreed that the indicted defendants should be subjected to daily strip searches upon leaving and returning to prison -- including cavity searches, since body cavities are notorious repositories of makeshift weapons and narcotics. This was appropriate not only because of the threat involved but because of that threat coupled with significant facts about the people involved. The indicted defendants had violent histories that included threats to kill witnesses and an attempt to murder an undercover police officer. They were in custody despite not yet having been convicted, because a judge had denied bail based on evidence that they posed a danger to the community. We had now caught them with items they were not supposed to have in the courtroom.

People in prison are subject to highly intrusive searches; they have no expectation of privacy. To be sure, the government is given more latitude -- relieved of the need to show probable cause for the search -- because it is promoting safety, not trying to develop a prosecutable case. But what makes the search appropriate is the record of the people involved, not the abstract possibility of violence. A savage act is always possible. If that is all it took to justify gross infringements of liberty, such infringements would always and everywhere be justified. An intrusive search is reasonable, or not, based on what the people involved have done to prompt it, not simply because life is fraught with peril.

The remaining people coming to the courtroom each day presented circumstances very different from the defendants. There were the defendants’ family members and associates, other trial participants (jurors, court reporters, the judge, and the lawyers for each side), some members of the press, and spectators (ordinary people who would come by to watch trials).

The family members and associates were neither charged nor in custody, though some were suspected of collusion in the drug dealers’ activities. Like all members of the public, they had had to pass through cursory courthouse screening upon entering the building. This included the presentation of identification and passing through a magnetometer -- which, while far from perfect in ferreting out weapons, does detect guns, knives, and other metal objects. So we opted against any further physical searches absent some new indication that one of these folks possessed an item that could be used as a weapon. Still, the marshals were instructed to watch them carefully in the courtroom and keep them physically separated from the defendants -- if contact was sought for some reason, defense lawyers could ask the judge for permission and the judge could then work with the marshals to set the ground rules.

As for the remaining trial attendees, all of whom had also gone through the screening process, there was no reason for added concern. Of course the threat situation dictated that the marshals remain on their toes. But a pro can easily do that without hassling everyone in sight. And that’s exactly how these pros handled it: smoothly, realistically balancing the risk of something terrible being attempted against the huge unlikelihood of its being attempted by the vast majority of the people in the courtroom.

#page#Imagine, though, if the marshals had said: “Let’s just cavity-search everyone -- after all, you never know.”

In essence, that is exactly what the Transportation Safety Administration is doing with its perverse -- in every sense of the word -- security procedures. At a number of the nation’s most heavily trafficked airports, in the midst of the Thanksgiving holiday, when people routinely fly in order to be with faraway loved ones, the TSA is saying: Let’s suspect everyone of being a terrorist, no matter how groundless the suspicion, and move immediately to the most intrusive search procedures in our toolkit.

#ad#This is a rank violation of the Fourth Amendment. In my long-ago trial, it would have been thought obscene to make violent drug traffickers the measure of every person’s privacy rights. There would have to be something more -- some concrete basis for suspicion, particular to the person. Yet, the TSA is making the savage jihadist its lodestar for navigating the threat it audaciously presumes to be posed by every American.

At its website, the TSA cheerily informs us that its unnerving electro-strip searches, and the alternative you get to choose -- having TSA officials grope the breasts, buttocks, and genitalia of yourself, your spouse, your children, your elderly parents, etc. -- pass constitutional muster as “administrative searches.” Under this line of Fourth Amendment jurisprudence, the agency insists, a warrantless search “is valid#...#if it is ‘no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives’” -- a proposition for which it quotes a Ninth Circuit case from 37 years ago (United States v. Davis). If you don’t like it, the TSA concludes, you “may avoid the search by electing not to fly.” How very reasonable!

Speaking of reasonableness, the Supreme Court reaffirmed in the 2001 Knights case that it is “the touchstone of the Fourth Amendment.” Determining whether a search is reasonable requires an assessment of “all the circumstances” -- not just the potential threat to public safety and the state of modern technology, but the intrusiveness of the proposed search, its likely effectiveness, and the degree of privacy Americans may reasonably expect from their government under the circumstances.

The threat to public safety from the terrorist use of aircraft is obviously great, but no greater than countless other scenarios. We don’t unleash the government to commit what would otherwise be sexual assault and the infliction of emotional distress on nothing more than an abstract threat. The threat of terrorism is ubiquitous. On the other side of the equation, the search tactics at issue would scarcely be more of a privacy invasion if agents were stripping passengers and performing cavity searches.

Worse, the tactics are ineffective. TSA chief John Pistole admits that he intentionally delayed notifying the public about the new procedures because he didn’t want to tip off the terrorists. Of course, tipping them off would be irrelevant if the procedures were an ironclad protection, but they are easily evaded -- by those with an interest in evading them -- through choosing airports where they are not in place, using explosive components they cannot detect, and hiding components in body cavities against which the procedures are ineffective.

Most significant, the government is ignoring the most material element: discrimination, based on characteristics known to be associated with the threat. Discrimination has been turned into a dirty word, but we want our law-enforcement, intelligence, and security services to employ it sensibly. If everyone is a suspect, then no one is a suspect -- meaning the real threats get no real attention.

What justified the different gradations of Fourth Amendment treatment in my courtroom years ago were the very different circumstances of each category of person. To be sure, everyone would have been safer from being attacked by a weapon if everyone had been cavity-searched. But what sense would it make if, to get to this purportedly optimal safety level, everyone had been attacked by the authorities -- forcibly subjected to a humiliating search without having done a blessed thing to provoke suspicion? And is it really an answer to say, “Well, if you don’t want to endure it, stay out of the public’s courthouses”?

Whether it’s the case of the Christmas bomber, the Fort Hood bomber, or the World Trade Center bombers from 17 years ago, our government, again and again, has consciously avoided the common denominators of Islamist ideology and anti-American animus that should have raised caution signs. We have knowingly granted entry into our country, and often into our institutions, to people who have meant us harm. The officials whose job it is to protect us have decided to protect Muslim sensibilities by treating every American as a suspected mass-murderer. To feel better about themselves, to inoculate themselves from bogus charges of racism and Islamophobia, they have decided to mortify everyone.

Many things may be said about this approach, but reasonable is not one of them. I’d start with unconstitutional.

-- 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.

Andrew C. McCarthy

How Should Terrorists Be Tried?

Neither military commissions nor civilian courts are right for the job, but a compromise option is there for the taking.

Omar Khadr is an al-Qaeda terrorist who killed one American soldier and maimed another. In a military-commission proceeding, he was permitted to plead guilty in a deal that capped his sentence at a mere eight years. We must say “capped” because the agreement provides for Khadr to be returned very soon to his native Canada.



In Canada, the law is very favorable to convicts who commit their offenses as juveniles. Khadr, who is now 24, was 15 when he threw the fateful grenade. On Canadian soil, his incarceration will be governed by Canadian law, not the U.S. military-commission sentence. The likelihood is that the terrorist will be released in a year or two: an unrepentant jihadist hero still plenty young enough for another decade or three of plotting against Americans.



#ad#Of course, the slap on the wrist Khadr got seems draconian compared with a military commission’s handling of Salim Hamdan, a bodyguard and confidant of Osama bin Laden. After years of helping the al-Qaeda chief run his network, Hamdan was captured in possession of missiles intended for use against American troops. Military prosecutors asked for a 30-year term. The commission instead meted out a stunning five-and-a-half-year sentence -- resulting in Hamdan’s release and repatriation, since he had already spent more than five years in custody.



It’s worth remembering these disgraceful results while we listen to the heated commentary over this week’s verdict in the civilian terrorism trial of Ahmed Ghailani. Yes, the terrorist was acquitted on 284 of the 285 charges arising out of al-Qaeda’s 1998 bombings of American embassies in Kenya and Tanzania. Nevertheless, on the one count of conviction, conspiracy to blow up government buildings, he faces a mandatory minimum of 20 years imprisonment. More importantly, the high likelihood is that a life sentence will be imposed.



There are terrible downsides to using the civilian justice system to prosecute our wartime enemies. There are also compelling historical, statutory, and human-rights reasons not to do it. But those of us who oppose trying enemy combatants in civilian federal courts must honestly acknowledge that federal judges have exhibited a far more sober and serious approach to terrorists than have their military counterparts.



Yes, a civilian trial is an intelligence bounty for the enemy -- a function of due-process rules designed for the benefit of American citizens, who are presumed innocent. And yes, the civilian justice system is extremely limited in what it can accomplish. Terrorists plot their mayhem in overseas redoubts, where American law does not apply and American law-enforcement cannot operate. That’s why bin Laden, to take the most prominent example, has been able to orchestrate a string of atrocities throughout the dozen years he’s been under U.S. indictment.



Civilian due process obstructs the government from presenting its best case against these worst offenders, as happened in the Ghailani case when a key witness was suppressed. Civilian justice is something of a crapshoot in that a well-presented prosecution case can be derailed by a single loopy juror, as also happened in Ghailani. As a statutory matter, Congress has enacted military commissions for enemy combatants -- a strong statement by the people’s representatives that our civilian courts should be closed to our enemies during wartime. From a human-rights perspective, moreover, it is perverse to reward alien mass murderers with the enhanced due process of civilian courts -- with the same rights as the Americans they kill. Our jihadist enemies are not entitled to that treatment; their atrocious methods flout international standards that are designed to protect civilians.



Still, all that said, when terrorists are brought to civilian court, they are convicted and they are slammed. The 1993 World Trade Center bombers received jail terms of hundreds of years each. In my prosecution against the Blind Sheikh (Omar Abdel Rahman) and eleven subordinates from his terror cell -- the cell that carried out the Trade Center bombing and plotted an even more ambitious (but unsuccessful) attack against New York City landmarks -- the top terrorists were sentenced to life imprisonment. The least culpable among them, who barely made it into the conspiracy, was smacked with a 25-year term.



#page#In case after case, terrorists have been convicted. The convictions have been upheld because of the skillfulness of the presiding judges, and those judges have slammed the jihadists. One needn’t agree with the judiciary’s expanding role in national-security matters (I certainly don’t) to acknowledge this truth. The previously convicted embassy bombers got life. And I expect Ahmed Ghailani will get similar treatment from Judge Lewis Kaplan. The terrorists prosecuted in civilian court make up only a paltry percentage of the terrorists who threaten us, and the civilian system cannot do more than that. But the convicts will never kill Americans, or anyone else, again. You can’t confidently say that about Omar Khadr.



#ad#This is not a plea on behalf of civilian trials. Having been deeply involved in the process, I’ve seen its downsides. They are too perilous to overlook. But that is no rationale for the paeans to military commissions we’re hearing this week. What would you think if Ghailani had been convicted on all 285 counts but a judge had responded by giving him a sentence like the eight-year term the military judge imposed in the Khadr case? I imagine we’d all prefer a conviction on one count before a civilian federal judge who would give him life.



I don’t enjoy writing this. Like many conservatives concerned about national security, I had high hopes for the military-commission system. When the Left attacked it, I countered that we should let it work and judge it by its performance. Well, it has now performed. It is not an abject failure by any means, but it has been a disappointment. For years, we’ve exhaustively catalogued the disadvantages of civilian prosecution, even though accused terrorists have been responsibly sentenced. But military justice has come up short, and that must not be overlooked.



Here’s the point: We are beating on each other to no good purpose. Civilian-justice proponents grossly understate the security challenges posed by civilian trials. They also glide past a brewing scandal: detention proceedings (habeas corpus cases) in which judges, with no guidance from Congress, have ordered the release of terrorists who should be held. By contrast, the military-justice camp conveniently omits the appalling sentences and quirky rulings that system has produced. In the meantime, Obama-administration officials are now indicating that the president may have soured on trials altogether. There is talk of simply detaining Khalid Sheikh Mohammed and the other 9/11 plotters indefinitely.



Some thoughtful commentators have endorsed this approach, which is entirely valid under the laws of war. I can’t agree, however, for practical reasons.



Indefinite detention is permitted during wartime only until the conclusion of hostilities. It is true enough that we will be fighting al-Qaeda for a very long time. But let’s face it: The Obama administration is about to pull all remaining forces out of Iraq, and it won’t be long before they follow suit in Afghanistan. That won’t end the al-Qaeda threat, but many on the Left will argue that it ends the war -- and there are at least some judges who will agree with them.



#page#What happens if, in 2015, all American troops are brought home, the political class announces that the war is over, and the ACLU and CAIR start screaming that the laws of war no longer support indefinite detention? If that argument gains traction, and I think it will, our choice will be to release the worst terrorists or try them. Obviously, that’s really not a choice at all: If our only way of keeping them on ice is to have trials, then that is what we will do. But by then, the trials will be much more difficult. Years will have elapsed, witness memories will have faded, leads will long have grown stale. And yet, because al-Qaeda will still be a threat, the same downsides to civilian prosecution that exist today will still exist.



#ad#There is a better answer, and it is one the Obama administration and a more Republican, more national-security-conscious Congress can accomplish. We can finally stop talking past each other and create a national-security court system that melds the best elements of military and civilian justice.



We can protect classified information, streamline charges, lower admissibility-of-evidence standards, and endow terrorists with rights that are fair (in the sense of insuring the integrity of trial results) but that do not equal the constitutional rights of American citizens. Simultaneously, we can tap the experience and professionalism of our accomplished federal judges while our similarly talented Justice Department prosecutors work side by side with top military prosecutors.



Civilian judges could be assigned to the new court by the chief justice, just as the Foreign Intelligence Surveillance Court is now staffed. To prevent judges from inflating due-process protections, as they have liberty to do in the civilian system, Congress can prescribe exacting rules. Lawmakers can include a direction that terrorist defendants are not entitled to any rights, privileges, or protections not explicitly spelled out in the legislation. Government prosecutors can be given the power to appeal instantly if a trial judge suppresses evidence, dismisses counts, or tries to grant accused terrorists benefits beyond what Congress has enacted.



We could get pending and future terrorism cases done. We could get them out of our civilian justice system, so that precedents in cases involving alien mass murderers do not undermine the protections our system rightly affords to Americans. And the independence of civilian federal judges -- a separate branch of government -- will attract more cooperation from our allies (the countries where terrorists operate), who are reluctant to work with a military justice system under the unilateral control of the executive branch.



In short, it is a needed compromise, and it is there for the taking.



— 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.

Andrew C. McCarthy

Coercion Is Not Torture

I empathize with commentators on legal matters. There usually isn’t enough airtime or print-space to explain adequately complex issues. So commentators naturally take shortcuts. Often, the shortcuts do a real disservice. That is consistently happening in the Ghailani coverage, in which experts are conflating two very different things: coercion and torture.

The issue comes up because Ghailani’s confessions were not offered into evidence and a key witness identified during interrogation was not permitted to testify. Ghailani was subjected to enhanced interrogation tactics by the CIA in 2004. He repeated what he’d told the CIA to the FBI under the latter’s gentler questioning methods in 2007. Commentators are saying that the witness was barred and the confessions were not introduced because Ghailani was “tortured.”

This is not true. It is also a slanderous allegation, and I’m surprised to hear normally careful people throw it around so casually. Torture is a crime with a specific definition in law, involving the infliction of severe pain and suffering. We don’t know exactly what was done to Ghailani, but we have heard he wasn't waterboarded. Waterboarding was the tactic closest to torture, and it was used on three detainees by the CIA. But under their fastidious guidelines, it clearly did not meet the legal test for torture. That’s undoubtedly why the Obama Justice Department has never prosecuted anyone over it, despite ceremoniously reopening torture investigations against the CIA. In any event, while we can stipulate that Ghailani was made very uncomfortable, there is no colorable evidence that he was “tortured” in the legal sense of that term.

On the other hand, you don't need to torture someone in order to make his statements inadmissible. Nor do you need to conclude (as Judge Kaplan and the Justice Department seem to have concluded) that an alien terrorist is vested with a Fifth Amendment privilege. A coerced confession may not be used against the person who makes it because the Western notion of what a trial is would not abide such a thing. That is, a trial is not a trial if the state forces a person to testify against himself by physical or psychological intimidation.

You don’t need to torture someone to cross that line. Coercion will do. In fact, in the civilian system, the mere failure by police to give Miranda warnings is enough for courts to deem any resulting statement the product of coercion and, therefore, bar it from being used as trial evidence.

Commentators should stop saying Ghailani was tortured. I appreciate that many people disagree with me about whether it was appropriate for the CIA to use aggressive questioning methods in order to obtain life saving intelligence in the aftermath of 9/11. But we can agree to disagree about that without labeling what the agency did "torture." That is a very weighty allegation, and in Ghailani's case at least there's no reason to believe it is true.

Coercion, yes – and that's why Ghailani’s 2004 confession was not (and should not have been) offered into evidence. As I indicated yesterday, I think the witness identified during the interrogation should have been permitted to testify – but that's another story. The point here is that coercion is not torture. What happened in Ghailani’s case was coercion.

Andrew C. McCarthy