Andrew C. McCarthy's Blog, page 76

One More on Ghailani: Mr. President, Stop Blaming Bush

Obama officials are now complaining about “torture.” Their spin today is that we were lucky to get the one conviction we got given that the Bush administration abused the defendant, resulting in the suppression of evidence. Of course, this does not match up with statements they’ve been making for months, expressing complete confidence in their ability to get a just result. Nor does it jibe with the facts that this case was indicted years before there was a 9/11 or a Bush administration, and that the government in 2001 managed to get sweeping convictions against four terrorists based on the case as it existed in 1999.

The brute fact here is that DOJ got unlucky. Jury selection is tricky, and prosecutors ended up with a bad juror who refused to deal rationally with the evidence. When that happens, you either get a mistrial or the jurors compromise in a way that can be unsavory. That is not the Bush administration’s fault.

Speaking of unsavory, though, the Obama Justice Department took a calculated risk, they’ve gotten burned on it, and it’s scape-goating to try to shift the spotlight to the Bush counterterrorism tactics. Judge Lewis Kaplan’s pretrial ruling, denying prosecutors the ability to call a key witness (who sold Ghailani TNT), was very questionable. The Justice Department could have appealed it, but elected not to. DOJ decided to roll the dice with what was left of the case.

That they lost does not necessarily mean it was a bad gamble. The case they put on clearly persuaded most of the jurors, and who knows whether the TNT witness would have brought the loopy juror around? But let’s face it: in opting against appeal, the Justice Department left itself vulnerable to the claim that it failed to do everything it could have done to try to bring its best case.

Judge Kaplan’s ruling might have been upheld, but that’s anything but clear. Ghailani was not tortured by the CIA – in fact, he wasn’t even water-boarded. He was surely coerced in an aggressive way that would have made his confession inadmissible. But there’s a big difference between using a coerced confession against someone (which was not done) and calling a witness the government learns about by coercion. The witness’s testimony is not scripted by the confession – the witness has to come to court separately, provide information from his perspective (not the defendant’s), be subjected to cross-examination, etc. Plus, even if you think the CIA’s tactics (whatever they were) went too far, Ghailani was later interviewed by the FBI and repeated the same information, under gentler questioning.

Judge Kaplan assumed that the alien terrorist had a Fifth Amendment privilege, and the Obama administration does not seem to have contested that assumption. This led the judge to conclude that the “fruit of the poisonous tree” doctrine applied. To permit the witness’s testimony, Kaplan reasoned, would violate Ghailani’s purported Fifth Amendment rights – i.e., evidence traceable to the CIA’s interrogation would be introduced against him. But there was nothing “poisonous” about what the CIA did – they were not rogue cops kicking down an American citizen’s door without a warrant; they were gathering life-saving intelligence from a foreign enemy during wartime. And, again, a witness’s testimony is not really the “fruit” of that tree; it is related but independent in a way the substance of the confession is not.

I think the administration should have appealed and should not have conceded Ghailani full Fifth Amendment protection. But reasonable minds can differ, including about whether the appeal would have been successful, whether further delay would have damaged the case (given the difficulty of getting testimony from Kenya and Tanzania about events that happened a dozen years ago), and whether even a successful appeal and the TNT witness’s testimony would have made a difference to the juror who needed convincing. Americans would have a lot more respect for the Obama administration if it forthrightly explained the difficult choices it had to make rather than dragged out that grating retread: It’s all Bush’s fault.

Andrew C. McCarthy

Ghailani: Why 285 Counts?

There is some conspiracy theory stuff making the rounds. Ordinarily, the Justice Department should not load up indictments with hundreds of charges, especially when it takes just one or a few charges to put a defendant out of commission for a mountain of years. So some people are suggesting that the Obama/Holder DOJ deviated from this usual practice in order to make a spectacular statement about the effectiveness of civilian trials – you know, visions of the foreman going “guilty … guilty … guilty” 284 times, instead of “not guilty … not guilty … not guilty.”

That did not happen here. Don’t get me wrong: there’s no question that Attorney General Holder was trying to make a powerful political statement that civilian due process can handle enemy combatants, and he was certainly hoping for “guilty … guilty … guilty …” But in this he was merely exploiting an opportunity, not orchestrating one.

The decision to indict the case the way it was indicted was made over a decade ago, when the embassy bombing case (along with the al Qaeda conspiracy to kill Americans) was first charged by the U.S. attorney’s office in Manhattan (my old office) during the tenure of Attorney General Reno. (Eric Holder was Deputy AG at the time). The number of counts had nothing to do with demonstrating the effectiveness of the civilian justice system because there was no alternative military option competing with it. (For what it’s worth, I had begun arguing that al Qaeda was a military challenge, not a law-enforcement problem – in a 1999 Weekly Standard essay, written while I was on a brief hiatus from government service. But no one paid any attention to such contentions until after 9/11.)

There are three main reasons for the 285 counts in the indictment. First, because it is imperative to convict terrorists if you’re convinced they’re guilty, you have to throw the kitchen sink at them – different rules apply when it comes to mass murderers. Second, it was appropriate to acknowledge each of the 224 people killed, so each homicide got a separate count. Finally, there was a need to demonstrate gratitude to the governments of Kenya and Tanzania, who allowed us a wide berth to investigate and turned the terrorists over to us for prosecution in the U.S. That is, the large number of counts would hopefully show Kenyans and Tanzanians that justice was done for atrocities committed on their soil, and that we didn’t overlook their suffering. In sum, there were a lot of counts because Ghailani was tried on that same indictment. That indictment was not designed to make a point about civilian prosecutions, even though it would surely have been used that way if the verdict had come out the way the Obama administration was hoping.

Andrew C. McCarthy

Ghailani and Inconsistent Verdicts

It’s a rainy day on the NR cruise, so I’ve been watching the news and hearing a lot of really uninformed lawyer commentary on the Ghailani case. A few points, some (but not all) of which are also in my column, are worth making.

People ought to be careful about portraying the verdict as an abject failure. Ghailani may only have been convicted on one count, but he will almost certainly be sentenced to life in prison for it. You only live once – he’s going to do as much time as he would have done had the jury convicted him on the other 284 counts. The result should not please anyone – inconsistent verdicts are scandalous, and they undermine the integrity of results in the justice system. But let’s not get carried away: this guy is never going to get out of jail.

I heard a lawyer a little while ago insist that the inconsistent verdicts – apparently a compromise between most jurors who wanted to convict on everything and one juror who wanted to acquit – creates a major issue on appeal. It doesn’t. We don’t like inconsistent verdicts because they suggest the jurors did not follow the court’s instructions or did not understand the case. That is, if you think the guy was in the bombing conspiracy, there’s no basis not to convict him on all the murders, etc.

But however embarrassed they make us, we tolerate inconsistent verdicts in the interest of finality. The lawyer I was listening to was urging that on appeal, defense lawyers would argue that the conviction should be thrown out because, if Ghailani had really been guilty of conspiracy, the jury would have convicted him on the other charges, too. But it is just as justifiably (and, here, more accurately) argued that it is the series of acquittals that doesn’t make rational sense. Far from being a victim of an irrational verdict, Ghailani is better seen as the beneficiary.

Andrew C. McCarthy

Talking Ghailani at the NYTimes

I contributed a post to the Times’s “Room for Debate” feature, making a number of the same arguments about the Ghailani terrorism case that I made in today’s column.

Andrew C. McCarthy

A Compromise Verdict, and No Winners

The Ghailani verdict was irrational, but no more so than the decision to try him as a civilian in the first place.

A federal jury in Manhattan has returned what is transparently a compromise verdict in the terrorism trial of Ahmed Ghailani.

 

The case centered on al-Qaeda’s bombing of the American embassies in Kenya and Tanzania in August 1998. There were 285 counts, including separate murder charges for each of the 224 people killed. Ghailani was acquitted on 284 of them and convicted on a single charge of conspiracy to destroy government buildings.



#ad#That sounds like a great victory for Ghailani, but it is nothing of the kind. On the one count of conviction, Ghailani faces a sentence of up to life imprisonment, and there is a mandatory minimum term of 20 years in jail. In that sense, it is a victory for the government: The object of a terrorism trial is to neutralize the terrorist, and one count will do the trick.



But beyond that, the Justice Department walks away from the case as a big loser. That’s because the Obama administration made this much more than a terrorism trial. It cherry-picked the case to be a demonstration that the civilian criminal-justice system is up to the task of trying terrorists. This was to be the “turn the clock back” moment -- specifically, back to the Clinton years, when Eric Holder was deputy attorney general and when prosecution in civilian courts was the U.S. government’s principal response to the jihadist onslaught that began with the 1993 World Trade Center bombing.

 

This was the model that Barack Obama campaigned on and that the anti-anti-terrorist Left takes as an article of faith. No more Bush-era counterterrorism: no enemy combatants, no military commissions, no indefinite detention, and certainly no aggressive interrogation. The president and his attorney general are adamant that “the rule of law” must be restored.

 

Never mind that the laws of war -- which support all the Bush-administration measures -- are the rule of law during wartime. Never mind that at no point in our history have the nation’s wartime enemies been given access to the civilian justice system and endowed with all the protections and presumptions that American citizens receive. To the Obama Left, the law-enforcement approach is effective national security, a way to win the hearts and minds of Muslims and consequently make ourselves safer. It makes no difference that the country was demonstrably unsafe -- and repeatedly attacked -- during the Clinton years. Nor does it matter that people in Islamic countries have no idea of the legal differences between American civilian and military proceedings -- they care only that we are imprisoning Muslims, not about the abstruse details of our basis for doing so.

 

The Obama Justice Department saw the Ghailani case as the perfect opportunity for the civilian system to prove itself. After all, the case had already been tried successfully: In 2001, before the 9/11 attacks, four terrorists were convicted and sentenced to life terms. Moreover, while critics of the law-enforcement counterterrorism model emphasize that civilian due process requires the government to hand over too much sensitive intelligence, thereby educating the enemy while we are trying to defeat the enemy, that argument was significantly diminished in Ghailani’s case. Because the case had already been tried in the civilian system, most of the relevant intelligence had already been disclosed. You could contend that this was not a good thing, but for better or worse it had already been done.

 

But instead of a shining moment for proponents of civilian prosecution, the Ghailani case is a body blow.



#page#Even before the trial began, the trial judge ruled that prosecutors could not call a key witness, the man who had personally sold explosives to the defendant. The court reasoned that the government had learned of the witness during the CIA’s coercive interrogation of Ghailani, so permitting the testimony would have violated what the judge found (and the government did not dispute) were the alien terrorist’s Fifth Amendment rights. Similarly, the jury was not allowed to learn that Ghailani had confessed, and that after the bombing he had become a celebrity in al-Qaeda circles.

 

#ad#That is, swaddled in the protections of civilian due process, Ghailani was allowed to pose before the jury as a victim of circumstances who had no idea that the terror network was preparing simultaneous massacres at American embassies.

 

It seems to have worked, at least with one juror, who reportedly held out for a complete acquittal for several days. But even without the key witness and the post-bombing evidence, the circumstantial case against Ghailani seemed strong -- strong enough to convince most of the jurors.

 

The verdict is obviously a compromise: In exchange for the holdout’s agreement to convict on one important charge, the other jurors apparently agreed to acquit on all the rest. And like most compromise verdicts, it is irrational. As a matter of law, a member of a conspiracy is responsible for all the foreseeable criminal acts of his co-conspirators. If the jury found that Ghailani was a member of the al-Qaeda conspiracy to bomb government buildings, it made no sense to acquit him of the other charges, particularly the murders of the people killed when the buildings were bombed. That is, a rational jury either convicts him of everything or acquits him of everything.



This irrationality should not be a problem for the Justice Department on appeal. Compromise verdicts are a seedy but well-recognized feature of the criminal-justice system. Trials are extraordinarily expensive and burdensome, and we want them to have finality -- that’s why judges push juries hard not to hang. But sometimes, when jurors are at an impasse, the only way they can reach a resolution is by compromising on the charges. It’s not logical, but it’s a decision, and an appellate court won’t look behind it.



But that is the only good news for the Obama administration. It put all its “rule of law” chips on Ghailani and came away with 284 acquittals. Americans will naturally ask: If the civilian justice system couldn’t get this case right, how can we responsibly trust it to handle Khalid Sheikh Mohammed and the other 9/11 plotters, a more difficult case that would require massive disclosure of sensitive intelligence under civilian due-process standards?



Though an opponent of civilian prosecutions for enemy combatants -- precisely because I’ve seen their wages up close -- I am inclined to cut the DOJ some slack on this result. Ghailani has been convicted and will never be able to kill Americans again. Moreover, what appears to have gone wrong here is the selection of a terrible juror. If there hadn’t been one, if there had been twelve rational people, there would have been 285 convictions and no acquittals. I’ve had nutty jurors before. It happens, and it can happen to any prosecutor.

 

But it’s far less apt to happen in a military commission, where the jurors are military officers. And that’s the important takeaway here: The Ghailani civilian prosecution was a mistake long before the verdict was returned, not because of the verdict that was returned. This civilian prosecution was a misadventure because politics was permitted to trump justice and, predictably, justice was not done.

— 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

Obama Caves on Civilian Trial for KSM

It turns out indefinite detention isn't so bad after all.

Let’s review the state of play, shall we?

Throughout the 2008 presidential campaign, candidate Barack Obama blasted the Bush administration’s decision to treat al-Qaeda terrorists as enemy combatants and detain them without trial at Guantanamo Bay. Now, two years into his presidency, Obama has decided to treat al-Qaeda terrorists as enemy combatants and detain them without trial at Guantanamo Bay.

The media is reporting that the administration will hold Khalid Sheikh Mohammed and the other 9/11 plotter indefinitely, granting them neither a civilian nor a military trial. This determination, leaked over the weekend, appears to be a rebuff of Attorney General Eric Holder, who had intimated a few days earlier that a civilian prosecution was imminent.

#ad#Here’s the difference between Presidents Bush and Obama: The former’s strategy was driven by weighty national-security concerns and maintained despite ceaseless condemnation from the Obama Left. Obama’s strategy -- or, more accurately, his drift -- is driven by naked political concerns, and his base’s media megaphone has gone nearly silent.

After the most devastating attack ever carried out on American soil by a foreign enemy, President Bush determined that the Clinton administration’s preferred strategy of treating al-Qaeda as a mere law-enforcement problem had been unserious. The criminal-justice system is tailored to address ordinary crimes committed in peacetime America. It is designed to favor the defendants: Americans are presumed innocent and armed by the Constitution with protections that, quite intentionally, make it difficult for the government to investigate, prosecute, convict, and incarcerate. By itself, civilian justice is incapable of neutralizing wartime enemies. Unlike everyday crooks, foreign terrorists operate from overseas redoubts where American law does not apply, where foreign regimes like Iran and the Taliban are only too happy to abet them.

This is not hypothesis; it is our experience. The Clinton Justice Department indicted Osama bin Laden himself in June 1998. He responded by orchestrating, with impunity, the August 1998 embassy bombings in eastern Africa, the October 2000 Cole bombing, and the 9/11 attacks. Al-Qaeda’s onslaught was a war, not a crime wave. President Bush was hardly alone in thinking so: Congress overwhelming authorized combat operations against al-Qaeda, and it has continued to authorize and fund them for nearly a decade. Combat operations necessarily imply not only the killing of enemy combatants but their capture and detention, with the corollary of military-commission trials for those who have committed provable war crimes.

The Bush strategy has worked. Its detractors among self-styled “human-rights activists” -- who seem far more concerned about the humans doing the killing than the humans doing the dying -- point to the spotty record of commission trials in contending otherwise. But commissions constitute only a small element of the Bush approach, and doubtless the least important one.

#page#The Bush strategy’s key components are twofold. First: Kill, capture, and defund terrorists overseas, thereby denying them safe haven and taking them out before they can act. Second: Detain those who have been captured both to maximize the potential for acquiring fresh intelligence and to thin out the ranks of highly trained jihadists. The enemy may be able to replace terrorists who have been captured or killed, but the new recruits cannot replicate their level of competence.

It is a sad fact that the tireless, heroic work of our military continues without our paying it much mind. It is thus common for Americans to look at all our patent vulnerabilities -- subway systems, power grids, sports stadiums, etc. -- and wonder: “Why haven’t there been more 9/11s?” But this is no mystery. Dead and detained jihadists cannot execute attacks. A terror network worried about drone strikes on its training camps does not have the luxury of taking the months it takes to plan and execute significant plots. Fresh intelligence from high-level captives disrupts plots in addition to making it extraordinarily difficult for al-Qaeda to embed capable cells in our homeland.

#ad#While President Obama has gradually and grudgingly made the Bush strategy his own, he lacks the grace to say so, much less to give his predecessor credit. But it is remarkable to consider how far Obama has come. In June 2008, with the campaign in high gear, he ripped Bush, complaining that

in previous terrorist attacks [such as] the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated. And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world.

This critique was astonishing in its ignorance. In most previous terrorist attacks, we had not been able to arrest those responsible -- they had been able to keep attacking. Even in the one example Obama cited, the 1993 WTC bombing, several of those responsible were able to flee because civilian due-process protections made it impossible to hold them. Some were never apprehended -- and KSM, who was complicit in the WTC bombing and several subsequent plots, was finally captured thanks to wartime operations, not law-enforcement protocols.

Moreover, detaining enemy combatants without trial is entirely consistent with the “rule of law” that applies in wartime. Indeed, the Obama Justice Department has found itself making just this argument, albeit without fanfare. In short, indefinite detention at Gitmo “destroyed our credibility” only with Bush-deranged leftists -- and isn’t it amazing how credulous they’ve suddenly become now that their guy is accountable?

#page#In his conclusion, candidate Obama leveled the charge -- oft-repeated but mindless -- that Bush counterterrorism had “given a huge boost to terrorist recruitment in [Islamic] countries that say, ‘Look, this is how the United States treats Muslims.’” Let’s put aside the now-familiar Obama crotchet that gives Muslim sensibilities pride of place over American security concerns. The brute fact is: Obama is treating Muslim terrorists the same way Bush did. Given that, is it too much to ask the president finally to acknowledge that terrorist recruitment is driven by Islamist ideology? The legal theory by which a president justifies the indefinite detention of terrorists is beside the point.

For those who maintain that our president is a pragmatist and not an ideologue, worth pondering is Obama’s ideological intransigence, and how it has bred incompetence. If, back in January 2009, Obama had just let the then-pending military commission go forward, KSM and his cohorts would likely have been executed by now. They had announced their intention to plead guilty and proceed to sentencing. Allowing that, however, would effectively have meant endorsing military commissions and, by extension, Bush counterterrorism. So the new president interrupted the proceedings and dangled before KSM the stage the terrorist had always craved: a civilian trial just a few blocks from Broadway.

#ad#The public revolted, prompting bipartisan congressional opposition. Meantime, the president came to realize that, regardless of his purple campaign rhetoric, many committed jihadists could not be tried in civilian court and would kill Americans if released. His law-enforcement framework was impractical: He would have to detain al-Qaeda captives indefinitely or find another way to try them. Consequently, he kept Gitmo open despite having promised to close it; and, with an assist from congressional Democrats, he made a few cosmetic tweaks in the military-commission system in order to camouflage the inconvenient truth that it was substantially the same commission system proposed by Bush and endorsed by Congress in 2006.

But while Obama preserved military commissions, he didn’t actually want to use them. Had he used them, and had terrorists promptly started being convicted and severely sentenced, public opposition to the civilian prosecutions beloved by his base would have stiffened. So now there is one obvious right thing to do: Give KSM and the 9/11 plotters the military commission and execution they should have had almost two years ago. Yet, Obama can’t bring himself to do it.

Instead, the man who claimed that indefinite detention without trial “destroyed our credibility” will indefinitely detain the terrorists without trial -- at least until after the 2012 election, when either they will be some other president’s headache or electoral politics will no longer weigh on Obama. That’s change you can believe in.

— 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

Obama Knocks Israel in a Budding Sharia State

The president criticizes the Jewish state in a Muslim state that bans Israelis.

In fine Alinskyite tradition, Pres. Barack Obama is ready to say anything at any moment if it seems expedient. So it was that he spoke some months back of the “unbreakable bond of friendship” between the United States and Israel. The occasion was the Jewish state’s Independence Day. The proximate cause, however, was a backlash provoked by policies shot through with anti-Israeli animus -- and none more so than President Obama’s obsession over the construction of Israeli housing, a subject on which the president is no less doctrinaire than his good friend Rashid Khalidi, the former PLO mouthpiece turned U.S. academic.

#ad#Was the “unbreakable bond” bit a sweet nothing, or did Obama really mean what he said? The president’s skedaddle out of the country after the mammoth electoral drubbing his policies caused his party provides a good opportunity to judge.

Between defending the failed strategy of printing another trillion or so dollars to resuscitate the U.S. economy and fending off the resulting rebukes from G-20 leaders, Obama found time to blast Israel for building more housing. “This kind of activity is never helpful when it comes to peace negotiations.”

By “this kind of activity,” the president was referring to the construction of 1,345 housing units in the eastern section of Jerusalem. He was also drawing an equivalence between that city and Jewish settlements in the West Bank. Put aside the anomaly whose mention is also apparently “never helpful” -- namely, that Palestinians simultaneously want Jews expelled from Palestinian territories while Arabs are permitted not merely to live in, but to “return” in droves to, Israel. There is also this inconvenient fact, left to prime minister Benjamin Netanyahu to break to the unbreakably friendly U.S. president: Jerusalem is not a “settlement” -- it is the capital of Israel.

Sadly, there is nothing new in Obama’s amateurish inflation of Israeli construction from a sore point to a flash point in Israeli-Palestinian tensions. Nor is there novelty in his hectoring of Israel for insufficient indulgence of a “negotiating partner” that does not accept its right to exist. If there were nothing more, there’d be little point in recounting this story.

But there is a new wrinkle in Obama’s Israel-bashing: the setting. While the president’s post-election get-out-of-Dodge tour has included stops in New Delhi, Seoul, and Tokyo, he opted to zing the Zionist entity while touring Jakarta. This was no coincidence: By population, Indonesia is the world’s largest Islamic country, home to 200 million Muslims.

It is also Obama’s boyhood home. “Indonesia is a part of me,” the president gushed to a friendly crowd of university students, adopting the native tongue for emphasis. He went on to praise the country as a model of religious tolerance worthy of global emulation. The president explained that this is why he seeks for the United States and Indonesia “a deep and enduring partnership” -- which surely must be better than an “unbreakable bond of friendship.” Such a relationship, Obama stressed, should be a natural for two nations “bound together by shared interests and shared values.”

#page#No wonder the president saw Jakarta as a worthy stage for attacking a staunch American ally. Israel, you’d figure, must have a lot of catching up to do before it could hope to play in Indonesia’s league.

Except that those stubborn facts keep spilling all over Obama’s chummy “Muslim outreach.” With justification, Indonesia is seen as one of the most moderate Islamic countries. Yet in 2007 polling by the University of Maryland, 53 percent of Indonesian Muslims agreed that there ought to be “a strict application of sharia law in every Islamic country.” In the province of Aceh, Islam’s first foothold in Southeast Asia, sharia has been adopted, such that the penalty for adultery is now stoning -- although, as Sadanand Dhume has drily observed, homosexuality draws “a lighter rebuke#...#100 strokes of a rattan cane.”

#ad#It is also in Indonesia that some of the world’s worst Muslim-on-Muslim violence occurs. The main victims are the members of the Ahmadi sect. Among other things, they do not accept Mohammed as the final prophet. In this model of religious tolerance, that’s enough to have their mosques torched and their adherents brutally murdered.

It also turns out that this exemplary Islamic nation has about as much tolerance for Israel as the Palestinians do. Like Hamas and Fatah, Indonesia does not recognize Israel’s right to exist. To be sure, the national motto is “Unity in Diversity” -- inducing Obama to compare it favorably with America’s E Pluribus Unum. But it ought to come with an asterisk: Israelis are not permitted to enter Indonesia, nor are Israeli aircraft permitted to fly in its airspace.

What better perch could an American president find from which to slam a staunch American ally? It’s nice to know “Indonesia is a part of” President Obama, but Judeo-Christian tolerance -- the kind Israel lives and Jakarta shuns -- is part of America.

— 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

Earmarks Aren't Even the Beginning

Our trouble isn't the symbolism, it's the substance.

In offering himself as the next speaker of the House after last Tuesday’s sea-change election, Rep. John Boehner of Ohio penned a Wall Street Journal op-ed of about 800 words. The word “debt” is not one of them, nor does the concept appear. That’s a bit odd, no?

The debt is what the election was about: the growth-killing tab that runs up another $4 billion every day -- even days when President Obama is not touring the Far East with 3,000 courtiers in his retinue. The debt, driven by unconstitutional and unsustainable federal intrusions into everything from how much carbon dioxide we emit to which light bulbs we use, is what in turn drives unemployment. The debt, coupled with government’s insatiable appetite for ever-greater control, is what impels the Obama campaign to tax every morsel of achievement, effort, and choice. As former Reagan official Peter Ferrara explains in President Obama’s Tax Piracy, a new pamphlet in Encounter’s Broadside series, production and employment have ground to a halt as a “natural result of the incentive effects” created by the swirl of confiscation and uncertainty.

#ad#Yet, Mr. Boehner is focused like a laser on#...#earmarks. They are, he says, “a symbol of a broken Washington.” Okay, but they are also less than one 1 percent of our unfathomable $3.8 trillion budget. The problem is not the symbols, it is the broken Washington.

It took the United States over 190 years from the start of constitutional governance to accumulate $1 trillion in debt. We now add a tril every nine months or so. At the start of World War II, our public debt stood at about $43 billion. That averaged out to $370 per American. On Election Day last week, with a population nearly three times as large, each American’s share had exploded to $44,370 -- and counting. Accumulated public debt now hovers near $14 trillion, and that’s only if we use the farcically forgiving math by which Washington insulates itself from the accounting rigors it foists on the real world.

Americans in the private sector (i.e., members of the public who create the value on which the “public servants” feast) get prosecuted for fraud when they doctor the books, even if it is to shroud an imperceptible fraction of what Uncle Sam hides: tens of trillions in unfunded liabilities that push into the hundreds of thousands of dollars the true per capita burden we bear, as will our children and our children’s children. Just ask any Bernie, from Ebbers to Madoff: If you fail to heed the SEC’s disclosure regulations, you go to jail. And what of the regs for government disclosure, like the Freedom of Information Act? Strangely enough, the Treasury Department is currently looking to hire FOIA experts with experience in using “exemptions to withhold information from the public.”

But let’s pretend that the debt is really only $14 trillion. Two-thirds of that staggering sum has been run up since 1991, when Boehner was first elected to the House. About half of it has been added since 2006, when Mr. Boehner became GOP leader. Obviously, Democrats have been running the show in Congress throughout Boehner’s leadership years, and they’ve controlled both political branches for the last two. The congressman doesn’t come close to making the Most Wanted list when it comes to assessing blame for our sorry condition. But neither do earmarks.

#page#The “broken Washington” Mr. Boehner deplores is the Washington that doesn’t know its place and has no respect for the limits the Constitution imposes on its rapacious tendencies. It’s the Washington that produces central-planning programs like “No Child Left Behind.” That’s the 2002 Bush administration initiative that Boehner, then chairman of the House Committee on Education and the Work Force, regards as his signature legislative achievement. By contrast, as the Cato Institute pointed out in a 2007 analysis of NCLB, even the administration of Pres. Franklin Delano Roosevelt acknowledged that the Constitution provides no role for the national government in schooling, that “education is a matter reserved for the states.”

#ad#The grassroots uprising that has brought Boehner to the cusp of becoming speaker did not sweep the Republicans into power. It swept the Democrats out of power. Just as a similar wave swept Republicans out of power in 2006. The common denominator for both expulsions is the mind-blowing expansion of government, accompanied by a mind-blowing accumulation of debt. In the two centuries-plus before Pres. George W. Bush took office, the debt grew to $5.7 trillion. In just eight years, he added almost $5 trillion more.

Voters have just made congressional Democrats a rarer species because Obama’s breakneck spending and governmental metastasis make Bush look like a piker. That, however, does not mean Americans have suddenly fallen in love with Republicans. It means they have reluctantly given Republicans a second chance, finding them to be the only alternative readily available, and hoping the GOP’s stalwart opposition to Obama’s worst excesses means something more worthy than political opportunism is at play. But they are by no means convinced.

To put it mildly, Boehner’s got a lot to prove. His pose as anti-earmarks crusader is underwhelming, even as complemented by his call for a few good-government reforms to streamline legislation and make the process of passing it transparent. These are fine, as far as they go, but they go no farther than putting band-aids on a cancer. What we really want to know -- particularly those of us who are skeptical about the GOP’s seriousness of purpose -- is where he and the party stand on debt and on the role of government in our lives.

Very soon, Leviathan’s credit card will be tapped out. Shortly after President Obama took office, Congress quietly raised the debt ceiling from $12.3 trillion to $14.2 trillion -- an amount that strategically evaded the need to come back for more just before the midterm elections. At its current rate of profligacy, however, the government will steamroll past the current limit within a few months. It will need a new, higher max-out to keep the gravy train rolling. So, like clockwork, the punditocracy is in high dudgeon, warning the speaker-to-be and other GOP leaders: Don’t even think about not raising the cap. Unless the ceiling is raised, we’re told, life will end, the government will collapse, the global economy will sink into deep depression, the unemployed may have to make do on less than 99 weeks of “insurance,” etc. Go along, or prepare to be smeared as reckless maniacs. In short, it’s TARP time all over again.

Only in Washington is withdrawing a bankrupt debtor’s credit line deemed a form of dementia while running up nearly $10 trillion in red ink over a decade, with trillions more coming annually as far as the eye can see, is seen as perfectly rational. To the rest of the country -- that would be the people who said “No You Can’t” to the “Yes We Can” crowd on Tuesday -- grappling responsibly with bankruptcy means you are forced to pay down your debt and make the hard choices about what to stop spending on.

That will involve a lot more than ending earmarks.

-- 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

More Rocket, Less Docket

How to bring justice to al-Qaeda in the Arabian Peninsula.

‘We need to bring him to justice as soon as we can.” In a Fox News interview Sunday, that was John Brennan, President Obama’s top counterterrorism adviser, talking about Ibrahim Hassan al-Asiri. He is the chief explosives designer for Osama bin Laden’s franchise in Yemen, al-Qaeda in the Arabian Peninsula.

Late last week, AQAP was foiled in what intelligence services theorize is the third attempt to bomb American targets in the last year. The incident is unlikely to have much impact on Tuesday’s U.S. elections, which are dominated by economic concerns. Still, Mr. Brennan’s comment seemed strangely political, a marker put down in a debate sure to intensify over the next two years -- between President Obama and his Republican rivals, and between administration officials themselves.

#ad#No doubt we’d all like to see “justice” for al-Asiri. We just have very different ideas about what is just. When Obama officials speak of “bringing terrorists to justice,” they mean prosecuting them in civilian trials. So oriented is Brennan toward this line of thinking that he earned some unwelcome notoriety a few months back for favorably comparing the recidivism rate of released enemy combatants to that of felons sprung from American prisons -- as if the 20 percent clip he optimistically pegs for terrorists returning to the jihad (i.e., one in five go back to mass-murdering Americans) were something to crow about.

To the contrary, for those of us inclined to view al-Qaeda as an enemy rather than a cabal of defendants, justice is best achieved with Predator drones. Missile strikes better reflect due process -- the process that is due -- for jihadists who target civilians in wartime.

Quite clearly, killing civilians is still al-Qaeda’s modus operandi. Last week’s operation involved two bombs secreted in packages sent from Yemen via air courier. One traveled on civilian passenger flights to Qatar and then on to the United Arab Emirates. That means it was missed by screening procedures, such as they are, in Sanaa and Doha. Though the suspect package was finally discovered in the Dubai, screening technology did not catch it there, either. The plot was thwarted by human intelligence.

We know that because of the other bomb package, which was routed through Europe. German officials say they were tipped by Saudi intelligence, whose informant reported that two bombs were being sent to the United States from Yemen. One, the Germans realized, had already come to and gone from Cologne by the time they figured out what happened. But agents were able to alert their counterparts in England that the package was headed their way aboard a UPS plane. The Brits were thus able to seize the explosive at the East Midlands airport (near Leicester). The UAE authorities grabbed the other device at a FedEx packaging center.

Both bombs featured the explosive known as PETN (pentaerythritol tetranitrate). More is publicly known about the device seized in the UAE. Ostensibly, it was an ordinary Hewlett-Packard printer, but PETN was secreted in the toner cartridge. It was designed to be triggered by a cell phone. But the phone component did not include a SIM card. That indicates the bombers were relying on the cell phone’s internal clock -- i.e., the bomb rigged to be detonated by a timer alarm rather than a phone call.

This raises a nagging question for investigators. Much has been made of the fact that the packages were addressed to Jewish targets in Chicago, including a synagogue that serves a gay-and-lesbian congregation, the website for which received some unexplained heavy traffic from Egypt recently. Yet, if the bombs were not to be set off by phone calls once they got to their intended targets, the significance of those targets diminishes. The use of timers makes it probable that the devices were intended for detonation while on the planes en route from Yemen. British intelligence is said to be leaning toward that theory. On Sunday, Mr. Brennan indicated that he was inclined to agree.

In either event, al-Qaeda was again using airplanes to kill civilians. And PETN has become something of a signature for AQAP and al-Asiri. It was used when they trained Umar Farouk Abdulmutallab in Yemen and then tasked him to bomb a plane over Detroit on Christmas. In addition, at the Washington Times, Bill Gertz and Eli Lake have raised a very interesting possibility: Intelligence officials now believe AQAP was probably behind the downing of another UPS cargo plane -- one that crashed in Dubai on September 3, killing two crew members. A PETN bomb in the cargo bay rather than an accidental on-board fire was the likely cause.

AQAP also used PETN in an August 2009 suicide bombing. The target was Mohamed bin Nayaf, the top Saudi counterterrorism minister. At the time of the unsuccessful assassination attempt, the kingdom’s interior ministry had just begun a crackdown on al-Qaeda -- arresting dozens of suspected terrorists and raiding their hideouts.

#page#The use of PETN is alarming, and not just because it ties a string of attacks to a very determined, elusive enemy. PETN also combines high explosive intensity with low detection potential. It has repeatedly defeated multi-billion-dollar screening systems and other anti-terror redundancies. Until now, attacks have failed, barely, thanks to good fortune and terrorists’ incompetence. While this most recent attack was stopped, the invaluable intelligence responsible for that was, notably, the old-fashion kind: human beings with inside information who alert agencies about ongoing plots and, perhaps, enable them to target electronic eavesdropping more precisely.

#ad#This is why official commentary about “bringing terrorists to justice” is counterproductive. Some terrorists may be captured under circumstances in which trying them in court makes sense -- particularly if they are part of U.S.-based jihadist conspiracies catalyzed by Islamist ideology. Because most such groups lack ties (beyond like-mindedness) to al-Qaeda, they can be prosecuted without disclosing intelligence about al-Qaeda. But when it comes to the terror network with which the nation remains at war -- pursuant to Congress’s authorization of military force -- the specter of trials can only discourage cooperation from the foreign intelligence services.

The latest plots against America and the West reaffirm that the threat to our security comes mostly from places -- Yemen, northwest Pakistan, Somalia -- where U.S. intelligence capabilities are paltry. We are deeply dependent on foreign services. Those services know full well that our civilian due-process rules make it very tough to conceal intelligence methods and sources. Our allies will be less apt to tell us secrets if they fear we cannot keep secrets.

The more savvy Obama officials know that. They also know that the history of bringing Yemen-based terrorists to justice is not a happy one. For example, Jamal al-Badawi, the brains behind the October 2000 U.S.S. Cole bombing that killed 17 U.S. sailors, is at large now -- after multiple “escapes” from Yemeni custody, the last one occurring after that government purported to sentence him to death. Yemen refused to transfer him and his confederates to the United States for trial.

And wouldn’t you know it: The lone suspect thus far detained by President Ali Abdullah Saleh’s hapless regime in connection with last week’s bombing attempts has also been released. No sooner had Yemeni authorities picked up engineering student Hanan al-Samawi, whose phone number appeared on a bomb package, than they decided some unknown person must have purloined her identity. Don’t hold your breath waiting for Yemen to crack the case. Like most of our “allies” in that part of the world, Yemen has a rabidly anti-American population, and its tottering government walks a tightrope between losing lavish American aid and being overthrown for seeming too cozy with Americans.

Thus the most interesting of the weekend’s developments: President Obama may be leaning toward extending his Pakistan strategy to Yemen. That would mean covert operations designed to kill AQAP operatives, directed by the CIA and the White House, not the Pentagon and the Justice Department.

This would be good politics. It would enable the president to show anti-terror toughness, putting distance between him and his hard-Left supporters, who prefer indictments to drones. It might also remind voters that he has kept his promise to attack terror sanctuaries in Muslim countries with which the U.S. is formally at peace -- a promise over which Sen. John McCain ridiculed him for showing insufficient deference to the sovereignty of fabulous allies like Pakistan, which cashes American checks while safeguarding Taliban chieftains.

Far more important, though, a covert-ops campaign could effectively address a militant threat, without trials and without enmeshing the United States in yet another thankless, ruinously expensive nation-building project in a hostile Islamic basket case where Iran is making mischief.

In bringing that kind of justice, Obama would find plenty of Republican support. Terrorists on the wrong end of a missile tend not to return to the jihad.

– 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

It's Not the Economy, Stupid

Islamic terrorism will not be a back-burner issue for long, as Friday's news shows.

With debt exploding, joblessness climbing, growth stagnating, and sharp tax increases looming, the economy has dominated the midterm campaign that finally ends on Tuesday. National-security concerns have flown under the radar.

For that, our much-maligned intelligence and law-enforcement agencies deserve credit. No, we can’t forget the massacre at Fort Hood: The failure to prevent it, despite neon warning signs, remains a monument to conscious avoidance (or, as I might put it, willful blindness). There have also been two near-misses: the attempted bombings of Times Square and an airliner over Detroit. In those cases, we were more lucky than good. But let’s not ignore the positive side of the ledger. We face enemies who are working day and night to kill Americans yet have largely failed to strike our homeland. Had they succeeded, terrorism would be atop the list of election issues rather than an afterthought.

#ad#It will not stay an afterthought forever. On Friday, two packages containing explosives were intercepted on cargo planes en route to the United States. President Obama announced that the targets were Chicago synagogues, and the source was al-Qaeda in the Arabian Peninsula -- Osama bin Laden’s affiliate in Yemen. The alarming discovery capped a week in which the FBI disrupted a plot to attack Washington in a manner reminiscent of the atrocities in Bombay two years ago. Those were carried out by a Pakistani jihadist group, Lashkar-e-Taiba. In the Washington case, the prime suspect, Farooque Ahmed, is also a Pakistani native, and he himself is much more interesting than his plot.

That’s because the plot appears to have been steered by informants after the government learned that Ahmed and another man (elliptically described as “an associate” in an agent’s affidavit) were trying to join a terrorist organization. More worrisome is that Ahmed, like Faisal Shahzad, the would-be Times Square bomber and another Pakistani native, is a young, naturalized American. Like Shahzad, he is in his early 30s, became increasingly radicalized while living in the United States, and acquired citizenship -- making it easier for him to plot against us while living among us.

Even if our security precautions were better conceived, even if our agencies consistently performed at their maximum effectiveness (and ask yourself if you do that, or if anyone does that), the odds against continuing to prevent every one of these attacks, or even to dodge them, are too long. The suspect pool is too extensive, it is too easy for those who mean us harm to get here and stay here, the motivating Islamist ideology is too widely disseminated, and the necessary materiel is too readily available. It is little wonder that intelligence services report a noticeable uptick in the chatter that signals an imminent attack.

Eventually, our safeguards will fail. If they do, it will be the other chatter -- about Hillary Clinton, Sarah Palin, the rest of the 2012 intrigue, and even the economy -- that recedes from our attention. The uncongenial fact that we remain the target of very determined enemies will push its way to the fore. The new Congress, whether it is under Republican control or merely stronger Republican influence, will need to give our security a good deal more attention than it has received during the campaign.

Lawmakers might start by thinking about why our agencies sometimes fail. Their task has never been more difficult. A single attack takes few operatives and little financing to carry out, but could cost thousands of lives. Yet we demand that our agents not only prevent it but conspicuously respect our ever-expanding privacy zones while doing so, often denying them a view of the dots we nonetheless insist they must connect.

#page#Agents must furthermore perform amid squabbles over whether terrorism should be treated as part of a war being waged against the United States or as a crime. I have strong views on that subject, and thoughtful people have contrary views they hold just as strongly. But let’s not kid ourselves. Investigations always suffer when beset by philosophical arguments about how they should be done.

This is a matter on which being right, while important, is secondary. The security mission goes on, regardless of the noise around it. As long as the debate is unresolved -- and it’s been going on for a decade with no end in sight -- we have to ensure that it doesn’t interfere with the mission. Those of us who think war criminals do not belong in civilian courts must nevertheless rally around the civilian prosecutions when they occur. Of course, we should strive to be persuasive in arguing about policy. The goal, however, is to stop the terrorists, not to win the argument over how they should be stopped. Even if we think there is a better way to do this, we want our agents and prosecutors to succeed.

#ad#Similarly, those who are passionate about civilian due process must not look at every case as an opportunity to demonstrate the effectiveness of the civilian system. Again, the goal is to stop the terrorists, not win the argument. There is plenty of time after a war criminal has been apprehended to debate the forum in which his case should be tried -- civilian or military court. But it is abundantly clear that imposing civilian due-process rules too early (Miranda, appointment of counsel, indictment, etc.) can fatally undermine intelligence collection at the most critical stage. Contrary to what some proponents of the law-enforcement approach seem to think, it would not betray their core convictions about the value of civilian trials to green-light aggressive intelligence collection and concede that some due-process protections designed for ordinary criminals are not a good fit for war criminals. It would be pragmatic, which is what they like to tell us they are.

As if matters weren’t politicized enough, agents are also being forced to persevere through stifling political correctness. From the command level, their marching orders make it taboo even to mention terrorism’s catalyst: a mainstream, fundamentalist strain of Islam that we gently call “Islamist” ideology. That makes factoring the ideology into their intelligence assessments impossible. But try outfoxing someone when you’ve been instructed not to consider his motivation, or are told to pretend that it is something other than what it is. It can’t be done. You don’t know whom to look at, where to look, or what to look for.

Reasonable, patriotic Muslims know this. Yet, rather than cultivating them, we’ve let Islamist organizations call the tune. That is suicidal. They don’t represent American Muslims; they represent the Muslim Brotherhood. For whatever reason, our government insists on doing “outreach” to people who don’t have our best interests at heart. It is said to be a gesture of “respect to the Muslim world.” I think it’s a futile gesture, but that’s neither here nor there. The salient point is that hearing them out doesn’t mean we have to listen to them. That’s been President Obama’s theory with Republicans. Why couldn’t it be applied to CAIR?

Our debate over the best counterterrorism structure must continue. But with the likelihood of attack surging, both sides need to remember that the debate is subordinate to the mission, and the figuring out the perfect needn’t stop us from improving the good.

-- 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