Andrew C. McCarthy's Blog, page 77

Retired O'Connor Still Making Trouble

Ex-Justice helps Ninth Circuit Overturn vote-fraud law

A divided Ninth Circuit panel ruled on Tuesday that Arizona’s Proposition 200, adopted by the people of the state in 2004 to protect the integrity of elections, is invalid. Prop 200 requires voters to provide proof of eligibility (i.e., citizenship) to register and proof of identity to vote. Against precedent, statutory language, and logic, the 2–1 majority insisted that these eminently reasonable state requirements had been superseded by a federal statute, the National Voter Registration Act (NVRA), which does not mandate them.

The decision in the case, Gonzalez v. Arizona, was not actually rendered by Ninth Circuit judges, only one of whom agreed with it. As Ed Whelan notes in a Bench Memos post, the deciding vote was cast by the supposedly retired Supreme Court justice Sandra Day O’Connor. Justice O’Connor claims the power to sit by designation on cases in the federal appellate and district courts, despite the fact that she is now an overt political activist. Under the rules of judicial ethics, that ought to sideline her as a jurist. But of course, a politician can get a lot more accomplished wearing a robe.

#ad#The 62-page majority opinion is about as willful as it gets. First, it brazenly flouts circuit rules, riding roughshod over precedent to reach the point of imposing its policy preference. Then, it endeavors to justify this imposition by a dizzying disquisition on the legislative history of voting laws -- a thick diversion that is thin camouflage for the stubborn fact that the NVRA’s text does not support the claim that states have been preempted from supplementing federal thresholds for voter eligibility -- particularly if those supplements are geared toward shoring up the integrity of elections, which the NVRA claims as its purpose.

Indeed, as Chief Judge Alex Kozinski explains in his withering dissent, the NVRA explicitly invites states to require additional “identifying information#...#as is necessary to enable the appropriate State official to assess the eligibility of the applicant.” Consequently, several states do precisely that. The majority’s decision is thus guaranteed to be exploited by ACORN types in their campaigns to undermine electoral integrity in those states.

Furthermore, honoring the precedent that the majority sedulously resisted, Chief Judge Kozinski stresses that the case was squarely controlled by the Ninth Circuit’s 2007 ruling in this same litigation. There, the court held that the NVRA “plainly allow[s] states, at least to some extent, to require their citizens to present evidence of citizenship when registering to vote.” That should have been the end of the matter. It was, instead, just a bump in the road for the majority, which steamrolled right on by.

For court buffs, the decision has its intrigue. The majority opinion joined by Justice O’Connor was written by Judge Sandra Segal Ikuta, a Bush appointee who joined the Ninth Circuit in 2006. After graduating from UCLA Law School in 1988, Ikuta was a law clerk for two years: first for Judge Kozinski, and then for Justice O’Connor. Given Justice O’Connor’s stature and Judge Ikuta’s longstanding ties to her co-panelists, Chief Judge Kozinski’s concluding paragraph is especially stinging:

The majority distorts two major areas of law before it even reaches the merits. It creates an unprecedented exception to our law of the circuit rule, trampling underfoot a newly minted en banc opinion. The majority also makes a mess of the law of the case analysis by taking issue with a prior panel’s reasoning, not its conclusion. And, as to the merits, the panel comes nowhere close to proving that Gonzalez I’s interpretation of the National Voter Registration Act was wrong, much less clearly wrong. Few panels are able to upset quite so many apple carts all at once. Count me out.

The lengthy dissent by the circuit’s well-regarded chief judge, dismantling the majority’s house of cards floor by floor, dramatically increases the likelihood that the case will be reconsidered by the court sitting en banc. Because the Ninth Circuit is a behemoth, with 29 active judges and several other senior jurists, its much-derided en banc rules call for cases to be heard by eleven active members of the court, selected at random.

#page#Consequently, Justice O’Connor would not be involved, and it’s entirely possible that neither Judge Ikuta nor Chief Judge Kozinski would participate. (In most federal circuits, all active judges participate in en banc cases, and senior judges may also take part if they were members of the panel whose decision is being reviewed.)

Regardless of whether the Ninth Circuit reconsiders Tuesday’s ruling en banc, the case seems certain to draw Supreme Court review. In light of the dissent and the complications the case portends for other states that (like Arizona) have identification requirements beyond what NVRA prescribes, the justices will probably feel obliged to take the case and settle the conflicts. That could take many months, at least, and will not help Arizona police next Tuesday’s crucial mid-term election. Also, expect other states to be inundated in the next few days with lawsuits demanding that they refrain from requiring voters to show minimal proof of identification.

#ad#In any event, the real intrigue about this voting-rights ruling is a raging controversy that goes unmentioned even though it hovers over every page: Arizona’s 2010 immigration law, over which the state is being sued by the Obama administration.

Like Prop 200, the state immigration statute does not contravene federal law; it supports the enforcement of federal immigration statutes. Yet the Obama Justice Department argues that the people of Arizona are powerless to enact their own protective measures because they have been preempted -- not only by congressional statutes but by executive-branch enforcement policies. A likeminded, Clinton-appointed district judge bought the administration’s dubious preemption claims (I’ve discussed them here, here, and here). Thus, Arizona has appealed, and the case is now before the Ninth Circuit.

Preemption is the very doctrine to which the Ninth Circuit majority (i.e., Judge Ikuta and Justice O’Connor) resorted in the voting-rights case, so Tuesday’s ruling is now Circuit precedent. But the majority’s reasoning is absurd.

Put aside that NVRA expressly invites states to employ their own supplemental identification procedures. And let’s further assume, for argument’s sake, that the federal government has the power to preempt states from enacting voter-eligibility laws, even though conducting elections is traditionally a state function. In NVRA, Congress took pains to prohibit states from using a particular practice: any requirement that registration forms be notarized. Quite obviously, if it had been the federal government’s purpose to elbow the states completely out of the business of managing elections, there would have been no point in barring states from one specific practice. On the contrary, Congress would simply and clearly have said states were barred from enacting any additional identification procedures.

As Chief Judge Kozinski summarizes in rejecting the preemption claim:

The simple truth is that nothing in the NVRA clearly supersedes Arizona’s supplemental registration requirements. To get its way, the majority invents a broad rule of same-subject-matter preemption, arguing that the NVRA “addresses precisely the same topic as Proposition 200 in greater specificity, namely, the information that will be required to ensure that an applicant is eligible to vote in federal elections.”#...#But, as the majority acknowledges earlier in its opinion, the question under the Elections Clause isn’t whether the two laws address “the same topic,” but whether Arizona’s law “complements” rather than conflicts with “the congressional procedural scheme.”#...#There’s no conflict based on the text of the statutes. Arizona gladly accepts and uses the federal form, it just asks that voters also provide some proof of citizenship.

Analogously, the state’s immigration law endorses and complements federal law. It conflicts only with the Obama administration’s political decision not to enforce the law; there is no conflict with federal statutes.

Sadly, Justice O’Connor rejected Chief Judge Kozinski’s straightforward reasoning in the voting-rights case, implausibly concluding that whenever Leviathan deigns to act, the (formerly) sovereign states must stand down. So, here’s what Arizonans need to worry about: Their capacity to protect both the integrity of their elections and their security from the ravages of illegal immigration will come down to Justice Anthony Kennedy. The Supreme Court’s four-justice leftist bloc, now fortified by Obama appointees Elena Kagan and Sonia Sotomayor (the latter a longtime member of the National Council of La Raza), is undoubtedly poised to rule against the state. The four-justice conservative bloc is likely to endorse state laws that serve the stated goals of federal laws. That leaves the swing vote, Justice Kennedy.

It wasn’t so long ago that Justice Kennedy’s partner in swing was#...#Justice O’Connor.

-- 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

Unindicted Coconspirators

The issue isn't the coconspirator list, it's the evidence.

Much has been made of an appeals-court decision to expunge references to several U.S. Muslim groups from a list of unindicted co-conspirators in a terrorism-financing case. Too much, in fact.

It was never about the list. It was about what evidence unmistakably tells us: The Muslim Brotherhood and its American satellites are working to undermine the United States from within and to destroy Israel by any possible means, including terrorism. The Brotherhood can hide the list. After all, we should never have seen it in the first place. They can’t hide the evidence -- no matter how much help they get from their friends in and out of government. That bell can’t be unrung.

#ad#That is the main takeaway from a federal appeals-court ruling last week that has caused plenty of confusion. Sympathizers of various Islamist groups were quick to claim, falsely, that a Fifth Circuit panel had ordered the expunging of all references to those organizations as “unindicted coconspirators” in an important terrorism-financing case. The label had first been applied to them by the Justice Department, which had placed the groups -- including CAIR (the Council on American-Islamic Relations), ISNA (the Islamic Society of North America), and NAIT (the North American Islamic Trust) -- on a list of unindicted coconspirators provided to the judge and defense counsel prior to a 2007 trial.

The inaccurate reports about the appeals-court ruling prompted consternation from commentators who, for years, had been citing the Justice Department designation. Though it was useful for attacking the groups -- a worthy end -- the commentators had obviously done that without really understanding what the list was and, more significant, what the Islamist organizations had done to merit being listed. The label “unindicted coconspirator” had always been good enough for them -- but what to say now that it has been purged?

Everyone ought to relax. The ruling didn’t actually expunge anything, and the list -- however useful it may have been -- was never important. In fact, its contents should never have been disclosed in the first place; CAIR & Co. are actually right about that. But it is the only thing they and their apologists have been right about and, despite what they’d have you think, it is nearly irrelevant at this stage of the game.

A little background is in order. As its charter brays, the terrorist organization Hamas is the Palestinian branch of the Muslim Brotherhood. Like the Brotherhood, Hamas denies Israel’s right to exist and considers the Jewish state’s destruction to be a divine calling. The Brotherhood is a global organization that -- with Saudi financial backing -- has spent over half a century building an Islamist infrastructure in the United States. Once Hamas was created in 1989, at the start of the Intifada, support for its jihad against Israel became a top Brotherhood priority. Consequently, it mobilized its tentacles in the United States to back Hamas financially and in the court of public opinion.

To make a long story short, the Brotherhood set up an ostensible Muslim charity in Indiana, the Holy Land Foundation for Relief and Development (HLF), to funnel money to Hamas, primarily in Gaza. Over the years, HLF duly channeled millions of dollars. Finally, the Bush Justice Department indicted top HLF officials for a massive conspiracy to provide material support to a terrorist organization.

In conspiracy cases, courts order the government to give the defense a list of unindicted coconspirators. The reasons for this have to do with the rules of evidence and the Justice Department’s guidelines for drafting charges.

Usually, big conspiracies involve many more people and entities than the handful of defendants who are standing trial on the indictment. Sometimes the prosecution does not know who all of the bad actors are, sometimes it knows them but hasn’t gathered enough evidence to charge them yet, and sometimes it has enough evidence but hasn’t charged them publicly for various strategic reasons (e.g., they’re likely to go on the lam if they learn they are suspected). The existence of these unindicted coconspirators is important. Let’s say one of them told an undercover agent that the defendant was involved in the plot. That statement is admissible under evidentiary rules. That is, a defendant can be convicted of conspiracy based on the statements of a coconspirator, even if that coconspirator has not been charged in the case.

But who are the coconspirators? It is often not possible to tell by reading the indictment.

#page#To avoid tainting people whom DOJ is not ready to charge with a crime, the department’s guidelines forbid identifying uncharged coconspirators by name in a publicly filed indictment. (That’s why you often see oddities like “coconspirator A” or “company B” in indictments or arrest complaints.)

#ad#That’s all well and good, but it does not help a defense lawyer prepare for trial -- he must know the names of people whose statements might be used to prove his client’s guilt. To solve this dilemma, the court directs the prosecutor to tell the defense lawyers the names of all the coconspirators about whom the government anticipates offering evidence. It’s called a “coconspirator list,” though that is something of a misnomer, since at least some of the people and entities on it may actually be innocent -- because the government hasn’t charged them, they haven’t been formally accused and don’t have an opportunity to clear their names.

That seems awfully unfair, for the same reasons that cause DOJ to refrain from mentioning the names in the indictment. But there’s a salient difference: Indictments must be publicly disclosed once arrests are made; coconspirator lists should not be disclosed. The point of them is not to smear people as evildoers. It is strictly to alert defense counsel about what evidence they may have to confront once the trial starts. So the lists are usually exchanged informally, in a non-public letter from the prosecutor to the defense lawyers or in a sealed court filing.

In the HLF case, the Justice Department goofed -- big time. Prosecutors filed the coconspirator list publicly, as an appendix to a pretrial submission that explained the theory of the case to the court and addressed some legal issues. As a result, it became publicly known that the Muslim Brotherhood was the hub of the terrorism-financing scheme and that it claimed as its confederates several well-known Islamist groups -- some of which were alleged to have advanced the scheme in various ways. Among the 200-plus names on the list were CAIR, ISNA, and NAIT.

The organizations naturally cried foul, and they had a point. But it was a point of diminishing returns. Due-process principles arguably give one a right not to be tarred by the government in a court filing that could easily be kept under wraps. But a trial is another matter entirely. The trial must be public. That is a big part of why we have trials. A criminal trial is a demonstration of why society should take away a person’s liberty. It must be public so we can be assured of its integrity.

At a trial, a coconspirator is not entitled to be kept anonymous. The jury and the public get to learn the unabridged basis for the government’s accusations. Thus, at the Holy Land Foundation trial, abundant evidence was introduced -- much of it in the form of internal documents seized from Muslim Brotherhood officials -- proving that the Brotherhood sees its mission in the United States as a “grand jihad” to destroy the West from within by “sabotage.” The Brotherhood formed a Palestine Committee whose mandate was to support Hamas. Palestine Committee members included HLF and, later, the Brotherhood’s new creation, CAIR. Meantime, Brotherhood documents named ISNA and the NAIT as partners in its “grand jihad.” In fact, HLF was housed for a time at ISNA’s Indiana offices, and checks were often routed to Hamas through a joint ISNA/NAIT bank account.

That was what the prosecution’s evidence showed. You can hide the coconspirator list, but the evidence doesn’t go away. That’s why there are diminishing returns for the Islamist groups in grousing about the list. That only calls attention to the fact that the Justice Department cited them in the first place and then, critically, backed it up with evidence.

In that light, the Fifth Circuit’s ruling is mostly a non-event. The court merely pointed out the government’s admission that it was wrong to file the coconspirator list publicly -- although, interestingly, the judges did not seem as convinced as the Justice Department that this faux pas rises to the level of a constitutional due-process violation. More significantly, though, the Fifth Circuit declined to expunge names from the list or the trial proof. All it agreed to do was unseal a lower court ruling. That, however, is a double-edged sword for the Brotherhood satellites: Yes, the ruling says their Fifth Amendment rights were violated -- a fact they obviously see as a PR coup -- but it also reportedly describes the proof of their ties to the Brotherhood. (The lower-court ruling has not yet been unsealed but the Fifth Circuit decision clues us in on what it says.)

CAIR, ISNA, and NAIT do not have a branding problem. They have a substance problem. They may be able to falsely frame people as “Islamophobes.” It’s tough to frame facts.

Andrew C. McCarthy

NPR: A Test Case for Republicans

If they cannot defund NPR, you can bet they will not reverse Obamacare.

The least significant aspect of NPR’s canning of Juan Williams is#...#Juan Williams. The important thing is what the world should start looking like after November 2.

Let’s say you were a million dollars in debt and you didn’t have a clue, much less a plan, about how you were going to pay. But you saw this really nice chandelier and decided it would be just perfect in your dining room. If you pulled out the Mastercard and charged up a few grand for this ornate luxury, we would not call that fine living. We would call it grossly irresponsible, especially if it means you can’t pay the mortgage or the kids’ tuition once the binge ends and the piper demands his due.

#ad#So here is the question: Why does a country that is trillions in debt, and in which people have unlimited options for obtaining information, need NPR? More to the point, why do we need to fund the Corporation for Public Broadcasting, which keeps NPR afloat?

Juan Williams said things anyone with an ounce of common sense knows to be true: “When I get on the plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous.”

So do I. So do most of us. This is not mindless, noxious prejudice. There is a context: Muslim terrorists used airliners to attack us. And as Williams pointed out, the terrorist convicted of trying to massacre New Yorkers by bombing Times Square just reaffirmed the oft-repeated jihadist promise that there is much blood left to be spilt.

But wait a second, the PC police tut-tut, Williams didn’t just indict terrorists; he smeared everyone who merely dresses like a Muslim. Yeah, right: Save that for the CAIR sensitivity-training class, just down the hall from the FBI’s next Citizens Academy -- you’ll be sure to get an A+. To the rest of us benighted slugs, it seems fairly obvious that most Muslims in the West do not appear “in Muslim garb.” To the extent they concern themselves with scripture at all in this area, most American Muslims construe sharia simply to call for sartorial modesty -- be dignified, but neither flashy nor slovenly.

For Islamists, on the other hand, clothing oneself is not about achieving modesty but announcing oneself, first and foremost, as a Muslim. To be sure, some such Muslims are just being pious, not exhibitionistic. Still, it is simply a fact that many men who don robes and skull-caps, and many women who shroud themselves in the niqab, abaya, or burqa, are making a very conscious statement that they reject the West. Though living in it, they have no intention of assimilating into it.

There is nothing illegal about holding such views, but they happen to be held in common with Muslim terrorists. The latter are known to act on those views in horrifying ways. Since Muslims garbed this way don’t come with signs telling us which are which, they give us valid reason to be worried and nervous, as Williams acknowledged being. But Williams didn’t say the law should back up his anxiety by denying Muslims the right to fly or to dress as they choose. To the contrary, he insisted that, while fear is rational, it is not a rationale for violating anyone’s basic rights. For this forthright balancing of fear and sensitivity, NPR has terminated his contract.

Williams’s firing is plainly unjust. But it is not without poetic justice. Mr. Williams, whom I don’t know, has always struck me as a decent, honest guy, and a passionate progressive. But that insoluble combination makes him a bundle of contradictions: a commentator who calls it like he sees it#...# except to the extent his doctrinaire leftism won’t allow him to connect the dots, in which case he calls it like he’d like to see it -- whether or not that’s how it is. Consequently, I’m having trouble working up much sympathy for him. When he is not decrying the political correctness that suffocates our discourse, he works to exacerbate it.

#page#Have a look, for example, at this ode to affirmative action he wrote last year for the Washington Post, a newspaper that is a sort of Juan Williams writ large. He buys into all the disparate-impact voodoo that says you’re demonstrating racism -- even if you haven't got a racist bone in your body -- if you in good faith design a test that is race-neutral through and through but yields results that diverge along racial lines. That is, Williams would deny a job to someone who has earned it, and who has not said or done anything that could be construed as racist, in order to “remedy” past discrimination -- even if the beneficiary of this remedy has not himself been a victim of racial discrimination.

#ad#That is a shameful system: winners and losers picked strictly according to ruling-class biases. Yet, having enthusiastically endorsed that system, Williams demands immunity from ruling-class biases for himself whenever he, in his infinite wisdom, reckons the situation calls for blunt honesty. No one should be punished for truthfully voicing the fears of Islamic radicalism that most Americans share. But as Williams must know, the bien-pensant pieties he champions are the very muzzles that coerce Americans into silence.

Williams miscalculated. He figured that because he is a long-standing member of the NPR-certified Society of the Slavishly Right-Thinking, he could safely stroll a few steps off the reservation. Too bad he was wrong, but at least he got the chance to miscalculate. On the political right, we get no chance. In the NPR world Williams helped foster, we’re already condemned. It wouldn’t even occur to us to ask for the can’t-we-talk-about-this-face-to-face meeting that NPR denied to a stunned Williams despite his years of faithful service. Like the NPR news chief told him, there’s nothing we can say that will change their minds.

Juan Williams is getting the attention, but he’s just a sideshow. The real scam is NPR. It is no longer known as “National Public Radio.” On marketing’s scale of toxicity, “Public” comes in about where “Fried” did for Colonel Sanders. So NPR, like KFC, became a set of initials that formally stand for nothing yet bear a nostalgic ring, signaling to loyal patrons that NPR still traffics in the same old lefty gospel. NPR’s viewpoint is public only in the sense of who is picking up the tab, not whose perspective is being represented. Trouble is that when consigned to the market’s not so tender mercies, that gospel crashes and burns, à la Air America. Hence NPR strategically dropped “public,” intuiting that most of the real public might be inclined to shut off the spigot if it were constantly reminded that it is paying for this bunk. Better to let sleeping rubes lie.

So the former National Public Radio is now at pains to assure the pub -- er, you know -- that less than 2 percent of NPR’s support comes from federal sources (i.e., taxpayers). Instead, “the greatest portion of our funding comes from our stations.” Those, of course, would be public television stations, which, NPR’s fine-print concedes, get a lot of their “support” from the Corporation for Public Broadcasting (CPB).

You’ll need CPR when you read up on the CPB’s budget. Like the Bush prescription-drug program that greased the skids for Obamacare, the CPB started in a Republican administration: President Nixon out to prove he could do the Great Society, too -- smaller but just as enlightened and compassionate. As night follows day, CPB’s first year (1969) appropriation of $5 million mushroomed to well over 30 times that amount ($172 million) by the time the Carter administration was through.

For all the tough Reagan-era talk about slashing Leviathan, the CPB, like the Department of Education, became a monument to the GOP’s seduction by Washington, Inc. Far from being repealed (or replaced!), the CPB was maintained at roughly Carter-level appropriations -- at least for a time. But it inexorably crashed the $200 million barrier by the end of the Reagan years and, in short order, the $300 million barrier under Bush the Elder. That is, Republican administrations flaunted their self-flattering commitment to “public” programming while NPR and the other CPB stations functioned as one long taxpayer-funded ad for liberal Democrats (along with whatever was necessary to keep Bill Moyers employed). The rest is history. The tab for this year will be a staggering $420 million, and President Obama’s requests in the out years (through 2013) reach $460 million.

NPR flacks quip that their enterprise should really be called National Private Radio. That’s because of the purported pittance of its budget that it says comes from taxpayers -- the aforementioned 2 percent. When you hear that nonsense, bear in mind that NPR’s lifeline -- taxpayer underwriting of the CPB -- has actually metastasized into about 9,000 percent of its original size. That pile of CPB dough, once channeled back to NPR through its “member stations,” is laundered of its “public” character because CPB masquerades (courtesy of federal law) as a private company. Indeed, it says it is a private non-profit company because the annual hundreds of millions it rakes in from you do not come directly from you; they flow through Uncle Sam. In Washington finance, this hocus-pocus makes you a “non-profit.” A profit, by contrast, is the grimy stuff Fox News earns by producing programs people actually want to watch.

I’d feel worse for Juan Williams if he hadn’t so contentedly exploited this arrangement. The real victim here is the public. And the real test is what Republicans do about that if the Tea Party tide sweeps them back into power. The CPB is a chandelier: a grossly irresponsible expenditure for a government that is flat broke. But it’s not even a rounding error compared to Obamacare. If they can’t bring themselves to repeal the Corporation for Public Broadcasting#...#

Andrew C. McCarthy

Who Says Islam Is Totalitarian?

Not long ago, Bernard Lewis sounded almost like Geert Wilders.

Who says Islam is a totalitarian doctrine? Well, Geert Wilders does, of course. As the editors point out in Monday’s superb National Review Online editorial, the Dutch parliamentarian has even had the temerity to compare Islam with Nazism. Strong stuff indeed, and for speaking it, Wilders has earned the disdain not just of the usual Muslim Brotherhood satellite organizations but even of many on the political right.

Though they support free-speech rights, and thus grudgingly concede that Wilders should be permitted to say such things, they want you to understand they find his sentiments deplorable. Taking the politically correct view, they assure you that Islam is not a problem at all -- it’s just those bad extremists and Islamists who have, as the Bush-era refrain went, “hijacked one of the world’s great religions.”

#ad#Emblematic is the estimable Charles Krauthammer, who has described Wilders’s views as “extreme, radical, and wrong.” Dr. K.’s complaint, expressed on Fox News back in March (and published on the Corner), was that Wilders conflates “Islam and Islamism.” The latter, Krauthammer insists, is “an ideology of a small minority which holds that the essence of Islam is jihad, conquest, forcing people into accepting a certain very narrow interpretation [of Islam].”

As I take a backseat to no one in my admiration of Dr. K., I wonder what he’d make of Bernard Lewis’s take on this subject. Professor Lewis is the distinguished scholar widely and aptly admired, including by Wilders’s detractors, as the West’s preeminent authority on Islam.  At Pajamas Media, Andrew Bostom has unearthed a 1954 International Affairs essay in which Professor Lewis quite matter-of-factly compared Islam with Communism. The essay, in fact, was called, “Communism and Islam.”

In it, Lewis considered “the very nature of Islamic society, tradition, and thought,” and concluded that its principal defining characteristic is the “authoritarianism, perhaps we may even say the totalitarianism, of the Islamic political tradition.” Expanding on this, he wrote:

There are no parliaments or representative assemblies of any kind, no councils or communes, no chambers of nobility or estates, no municipalities in the history of Islam; nothing but the sovereign power, to which the subject owed complete and unwavering obedience as a religious duty imposed by the Holy Law.#...#For the last thousand years, the political thinking of Islam has been dominated by such maxims as “tyranny is better than anarchy,” and “whose power is established, obedience to him is incumbent.”

But what about the conceit that undergirds current American foreign policy, the notion that Islam and Western democracy are perfectly compatible? Lewis dismissed the idea as so much elite wishful thinking:

Many attempts have been made to show that Islam and democracy are identical -- attempts usually based on a misunderstanding of Islam or democracy or both. This sort of argument expresses a need of the uprooted Muslim intellectual who is no longer satisfied with or capable of understanding traditional Islamic values, and who tries to justify, or rather, restate, his inherited faith in terms of the fashionable ideology of the day. It is an example of the romantic and apologetic presentation of Islam that is a recognized phase in the reaction of Muslim thought to the impact of the West.

Clearly, the ensuing half-century has found Western intellectuals -- regardless of political bent -- joining romantic forces with their uprooted Muslim counterparts. Thus the accusation by Dr. Krauthammer, to take a prominent but by no means singular example, that Wilders fails to perceive the distinction -- I’d call it a hoped-for distinction -- between Islam and Islamism. Yet this accusation itself conflates Islam with Muslims, as well as Islamists with violent jihadists. This confusion leads Krauthammer to surmise both (a) that only a small minority of Muslims believe jihad is “the essence of Islam,” and (b) that because most Muslims in the West are not terrorists, it should be “obvious” that they are not Islamists.

#page#This is wrong on several levels. First, as Robert Spencer explains, “Jihad#...#is a key element of the Islamic faith according to every single Islamic authority on the planet.” To deny that it is the “essence of Islam” -- which is how the prophet Mohammed regarded it -- is to deny a basic fact. And though, as Spencer acknowledges, jihad is subject to varying interpretations, Lewis is clear on the preponderant construction. As he has recounted several times, most recently in The Middle East: A Brief History of the Last 2,000 Years, “The overwhelming majority of early authorities#...#citing relevant passages in the Qur’an and in the tradition, discuss jihad in military terms.” This jibes, to quote Ibn Warraq, with “the celebrated Dictionary of Islam,” which describes jihad as an “incumbent religious duty,” and defines it as “a religious war with those who are unbelievers in the mission of Muhammad.”

#ad#Spencer echoes Lewis when he elaborates that “all the mainstream sects and schools of Islamic jurisprudence teach as a matter of faith that Islam is intrinsically political and that Muslims must wage war against unbelievers and subjugate them under the rule of Islamic law.” The fact that most Muslims do not engage in violent jihad, whether out of practicality, indifference, or what have you, does not change what Islamic doctrine says. Nor does it mean these Muslims are “rejecting” that mandate. They are ignoring it.

Moreover, as I’ve noted on several occasions, the point of jihad is to spread sharia, the Islamic legal system whose installation is the necessary precondition to creating an Islamic society. That need not be done by violent means. In fact, the Muslim Brotherhood, the world’s most influential Islamist organization, maintains that America and Europe will be “conquered” not by violence but by dawa­ -- the proselytism of Islam by non-violent (or, more accurate, pre-violent) means, such as infiltration of our institutions. Spencer calls this phenomenon “stealth jihad.”

Consequently, one can be an Islamist without engaging in violent jihad, which is precisely the case with the vast majority of Islamists. The fact that they are not terrorists does not mean -- as we wish it would mean -- that they are not extremists. While they abstain from the use of force (particularly against other Muslims), staggering majorities of Muslims throughout the world favor the implementation and strict application of sharia. Andrew Bostom’s essay demonstrates this, citing polling done in 2009 by World Public Opinion in conjunction with the University of Maryland.

Back in 1954, Lewis recalled “the political history of Islam” as “one of almost unrelieved autocracy” that was “authoritarian, often arbitrary, [and] sometimes tyrannical.” Besides this, the most interesting part of his essay is its focus on “certain uncomfortable resemblances” between “the Ulama of Islam” and “the Communist Party.” Though “very different” in some ways, the two, he stated, “profess a totalitarian doctrine, with complete and final answers to all questions on heaven and earth.”

Those answers, of course, are worlds apart in their particulars. Nonetheless, Lewis saw them as strikingly similar in

their finality and completeness, and in the contrast they offer with the eternal questioning of Western man. Both groups offer to their members and followers the agreeable sensation of belonging to a community of believers, who are always right, as against an outer world of unbelievers, who are always wrong. Both offer an exhilarating feeling of mission, of purpose, of being engaged in a collective adventure to accelerate the historically inevitable victory of the true faith over the infidel evil-doers. The traditional Islamic division of the world into the House of Islam and the House of War, two necessarily opposed groups, of which the first has the collective obligation of perpetual struggle against the second, also has obvious parallels in the Communist view of world affairs. There again, the content of belief is utterly different, but the aggressive fanaticism of the believer is the same. The humorist who summed up the Communist creed as “There is no God and Karl Marx is his Prophet” was laying his finger on a real affinity. The call to a Communist Jihad, a Holy War for the faith -- a new faith, but against the self-same Western Christian enemy -- might well strike a responsive note.

In light of this scholarly comparison of Islam to Soviet totalitarianism, is it really so outrageous for Geert Wilders to compare Islam to Nazi totalitarianism? One needn’t agree with the analogy -- and, agree or not, one needn’t think it a useful analogy -- in order to understand why someone who is not intimidated by political correctness might employ it.

#page#In thinking about how to argue the depth of terrorist depravity to the jury while prosecuting a 1995 terrorism trial, I must confess it crossed my mind that jihad literally means “struggle,” the same word found in the title of Hitler’s manifesto, Mein Kampf (“My Struggle”). I quickly dismissed any thought of mentioning this as too explosive -- nothing provokes a mistrial motion faster than a prosecutor’s comparison of defendants to Nazis, and when your evidence is damning, it’s always better to let it, rather than your rhetoric, do the talking. But I certainly didn’t think the point was beyond the pale. As noted by Daniel Pipes (who does not agree with Wilders’s analogy), no less a figure than Winston Churchill described Mein Kampf as “the new Koran of faith and war: turgid, verbose, shapeless, but pregnant with its message.”

#ad#In the middle of the 20th century, before suffocating political correctness took hold, it was not all that controversial to say such things. Note that in 1954, Bernard Lewis obviously felt no need to resort to such devices as “Islamism” -- a device I adopt myself in The Grand Jihad -- to conform to today’s obligatory but unproved assumption that there exists a moderate, tolerant Islam, scripturally based and doctrinally distinguishable from the Islam of the “extremists.”

In those bygone days, the term “Islamist” was usually used to identify a scholar of Islam -- akin to a Sinologist or an Arabist. There was another usage, dating back to the 1920s. It was the one coined by Muslim Brotherhood founder Hassan al-Banna to denote a person who urged Islam as a complete way of life and favored installation of the sharia system. For Banna, there was no difference between Islam and Islamism.

That, by the way, is not only the Brotherhood’s view. It is the adamant opinion of Recep Tayyip Erdogan, the Islamist prime minister of Turkey who continues to be regarded by the U.S. government as a great moderate, just as he was during the Bush administration. “Very ugly” was his take on the term “moderate Islam” in a 2007 interview. As Erdogan fumed at the time, “It is offensive and an insult to our religion. There is no moderate or immoderate Islam.  Islam is Islam, and that’s it.”

Islam is Islam. That is Erdogan’s position, it seems to have been the position of Bernard Lewis a half century ago, and it is Geert Wilders’s position today. Not that Muslims are bad, but that Islam is a dangerous ideology. Wilders summed up his views in a 2009 interview with Jeff Jacoby (also quoted in Andrew Bostom’s piece):

I have nothing against the people. I don’t hate Muslims. But Islam is a totalitarian ideology. It rules every aspect of life -- economics, family law, whatever. It has religious symbols, it has a God, it has a book -- but it’s not a religion. It can be compared with totalitarian ideologies like Communism or fascism. There is no country where Islam is dominant where you have a real democracy, a real separation between church and state.

These claims are materially indistinguishable from points Professor Lewis’s made in 1954 -- other than, perhaps, Wilders’s assertion that Islam “is not a religion,” although by that, I take him to mean Islam is not merely a religion or a set of spiritual principles but a comprehensive system controlling all of life.

From those premises, Wilders concluded that “Islam is totally contrary to our values.” That is a bracing conclusion. I think the problem people have with Wilders is that he is bracing. He says out loud what they fear is the case, or what they refuse to examine for fear of discovering that it is the case. That makes him inconvenient. It doesn’t make him wrong.

-- 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

The Wilders West

Once a place of free inquiry, Europe is slowly stifling itself.

For a prosecutor, it was a simple matter of cause and effect. First, I showed that the “Blind Sheikh,” Omar Abdel Rahman, called for acts of violence: He admonished Muslims that Allah commanded them to slay non-believers and precisely quoted Islamic scriptures to back up that admonition. Then I showed that Muslim terrorists responded to these scripturally based exhortations by plotting and carrying out terrorist acts.

For this, the Clinton administration presented me the Attorney General’s Exceptional Service Award, the Justice Department’s highest honor. For doing exactly the same thing, the justice department of the Netherlands presented Dutch parliamentarian Geert Wilders with an indictment.

#ad#I got the pretty glass eagle for the mantelpiece, and the Blind Sheikh got sent to prison. Wilders, by contrast, got to stand in the dock while the global Islamist movement got to savor the possibility of something far more valuable than a trophy: a white flag draped over the shriveling remains of free speech. Wilders has been acquitted, but his trial was nonetheless damaging to what remains of the Western tradition of free discourse and inquiry.

For demonstrating cause and effect, for graphically displaying -- most notoriously in his short film, Fitna -- that Islamic scriptures beget jihadist atrocities, Wilders was put on trial in the Netherlands. In this Kafkaesque situation, as Diana West reports, it would have been hard to conjure words more frightening than the ones that tripped off the Dutch prosecutor’s lips: “It is irrelevant whether Wilders’ witnesses might prove Wilders’ observations to be correct. What’s relevant is that his observations are illegal.”

And so they might easily have proved to be, in much of Europe.

Wilders was charged with speaking words and producing images that were discriminatory toward Muslims, and that insult and incite hatred against Muslims. Such speech is criminal in the Netherlands, as it is throughout Europe, which teems with defiantly non-assimilating Muslims and which has responded to the resulting cultural confrontation with the societal surrender known as political correctness. That the things Wilders has said may be true made no difference in the case. It is immaterial whether the bracing opinions he has expressed are grounded in fact, or that the success of a free society hinges on its being an informed society. Wilders, says the prosecution, was guilty simply for saying these things. In the new West, we are unconcerned with the pathologies that besiege us. But those who call our attention to the pathologies -- who dare to puncture our “religion of peace” fantasy -- must be quelled. After all, they may get Muslims upset, and you know what happens when Muslims get upset.

Here in America, I can still write the last part of that last sentence -- for now. But maybe not for long, if President Obama has anything to say about it. Last spring, the administration joined with the Organization of the Islamic Conference (OIC) to propose a United Nations resolution that condemns “negative stereotyping of religions.” The resolution exhorts all nations to take “effective measures” to “address and combat” incidents involving “any advocacy of#...#religious hatred” that could be construed as an “incitement” not just to “violence” but to any form of “discrimination,” or even to mere “hostility.”

We needn’t worry about that here, you tell yourself. We’ve got the First Amendment. Don’t be so sure. The anti-hostility resolution states that the “effective measures” it urges are compelled by each nation’s “obligations under international human-rights law.” When we look at one source of such law, the International Covenant on Civil and Political Rights (foolishly ratified by the first President Bush, after U.S. Senate consent, in 1992), we find -- nearly verbatim in Article 20 -- the same speech-suffocating standard proposed by Obama and the OIC: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

#page#Even before Elena Kagan made it to the Supreme Court, there existed a five-justice majority (including Anthony Kennedy) for the proposition that international and foreign law should be weighed in interpreting American constitutional guarantees. Justice Kagan keeps that bloc intact, sliding comfortably into the shoes of her predecessor, Justice John Paul Stevens. She is also known to harbor hostility toward free speech: As an academic she belittled its value, and as solicitor general she argued that “categories of speech” may be suppressed if the government, in its wisdom, decides the “societal costs” of permitting them are too high.

#ad#When it comes to Islam as a category of speech, there is no doubt that our current government reflects the transnational progressive consensus: that the Western tradition of critical examination must give way to the Muslim tradition of submission. This is why when jihadists attack, the self-loathing elite’s response is to wonder what we did to offend them. It is also why when Muslims rioted over harmless cartoon depictions of their warrior-prophet as a warrior-prophet, the State Department’s harshest condemnation was reserved not for the marauders but for the offending newspaper. It is why Yale University Press would only publish a book about the cartoon controversy after the author agreed to purge from its pages the cartoons themselves. It is why the Washington Post just spiked a “Where’s Mohammed?” spoof in which the prophet nowhere appeared -- and, by this craven act, validated cartoonist Wiley Miller’s point about Western timidity.

At least Mr. Miller is around to tell the tale. Seattle cartoonist Molly Norris had to go underground for merely suggesting an “Everybody Draw Mohammed Day” -- as Mark Steyn observes, even being a good lefty who never followed through and tried to disavow the whole business didn’t help her. The threat whose name must not be spoken was too much. On the FBI’s advice, she disappeared without a trace, much to the relief of her former employer, the Seattle Weekly.

The Blind Sheikh has more maladies than I’ve got space to describe them. He can’t build a bomb, hijack a plane, or carry out an assassination. His one and only capacity to cause mayhem is his renowned mastery of Islamic doctrine. We know little about Islam. By comparison, the Blind Sheikh is a doctor of Islamic jurisprudence, graduated from storied al-Azhar University and steeped in that ancient institution’s literalist, militant construction of Muslim theology. We are instructed by our betters to view Islam as a religion of peace -- indeed, as one of our best assets in the fight against terrorism. To the contrary, the Blind Sheikh instructed the faithful that Islamic scriptural commands -- Allah’s personal commands -- to violence and intolerance mean exactly what they say.

Because of his exalted clerical status -- that is, owing to his authority in Islam and nothing else -- the Blind Sheikh was able to spur Muslims to terror. Upon demonstrating this fact, I was given an award, while he was locked in a prison cell.

Fifteen years later, for making a similar demonstration, Geert Wilders risked being the one locked in a prison cell. Fifteen years later, when Iraq’s Ayatollah Ali Sistani says Islam requires the killing of homosexuals, it is considered preaching; when Geert Wilders says it, it is a hate crime.

I don’t know if the Netherlands gives its prosecutors baubles for proving this sort of thing. Wilders’ prosecutors seem unlikely to be lauded: They have now tried to dismiss the charges against him for a second time, the first (in 2008) having been rejected by Dutch jurists who seem hell-bent on nailing Wilders and whose approval is needed before the case can be dropped. I do know the Islamists at the OIC have already been handsomely rewarded by this travesty. Their campaign to impose sharia proscriptions against speech unfavorable to Islam -- against telling uncomfortable truths about Koranic injunctions and the terrible consequences that flow from them -- is steadily vanquishing the West’s commitment to discourse and reason.

-- 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

Some Pragmatism

Obama is turning back the clock on counterterrorism.

‘Obama’s administration has adopted what it calls a flexible approach” to terrorism cases, says the Reuters dispatch. The president, Reuters elaborates, “favor[s] military tribunals in some cases and civilian trials in others.” By contrast, we’re told, “most Republicans say all terrorism suspects should be tried in military tribunals.”

None of this is right -- except that Obama officials claim their doctrinaire approach is flexible. Nevertheless, Reuters’s assessment surely reflects the public’s muddled understanding of where competing sides stand in the muddled terror-trial debate. That debate is stirring anew thanks to a Manhattan federal judge’s decision to suppress key evidence in the trial of Ahmed Ghailani, a terrorist accused of murdering 224 people in the 1998 embassy bombings.

#ad#If President Obama’s approach were actually flexible, Ghailani would by now have been shipped back whence he came: Guantanamo Bay. That’s where the confessed al-Qaeda operative was detained as an enemy combatant from the time of his 2004 capture in Pakistan until the Obama administration transferred him to the civilian justice system for trial. Ghailani would be back at Gitmo because policy makers who are truly flexible make adjustments when their strategies backfire and better options are available. That is pragmatism. True, Ghailani may still be convicted in a civilian trial -- let’s hope so. But the judge’s ruling, which prevents the government from calling the witness who sold Ghailani the explosives used to bomb the U.S. embassy in Tanzania, shows that this is no sure thing.

It would be easier to get the government’s proof admitted at a military commission under less burdensome rules. Such commissions remain legally available. And there is no real doubt about Ghailani’s guilt: He has confessed, and others have implicated him. This is all a real pragmatist would need to know. A flexible president would be looking neither to vindicate civilian due process nor belittle military justice. He’d be looking for the option that gave him the best chance of obtaining the right result.

President Obama puts on pragmatic airs, but it is strictly a show. He is an ideologue of the Left. Any grudging adjustment he makes occurs only within that framework. While political winds must be navigated, the ship never veers from his charted course.

Obama sought the presidency as the candidate who would turn the clock back to the 1990s. He idealized the Clinton years, when terrorism was treated only as a crime, when preventing it was decidedly secondary to prosecuting it and the courthouse was the only battlefield on which the government had any interest in meeting al-Qaeda -- an arrangement that suited al-Qaeda just fine.

Outside Obama’s left-wing base, Americans don’t share these sentiments. Their speed is more President Bush’s conception of counterterrorism as a defensive war to quell enemies -- not defendants but enemies -- who are actively making war against the United States. The war in Iraq and, now, in Afghanistan, turned unpopular, but that is because its focus drifted from defeating Islamist terrorists (an aim still strongly supported) to building Islamic democracies (an aim that never had strong support).

Leftists mistook the unpopularity of the war overseas for a rejection of Bush’s robust antiterrorism approach at home. They assumed that because the public was confused and angry over the unrequited sacrifices our troops were making, Americans must also have bought the ACLU narrative that Bush had shredded the Constitution. In point of fact, Americans are very content to have terrorists treated as military enemies and killed or captured before they can strike. They don’t think Gitmo is a gulag, they don’t see military justice as a kangaroo-court system, they don’t believe alien jihadists should automatically be endowed with constitutional rights, and they don’t want those jihadists brought into our country, where -- the public adroitly suspects -- our federal judges will find reasons to order their release.

#page#Thus far, in the realm of counterterrorism, Obama’s presidency has been about dialing back exuberant promises made while conflating the public’s war weariness with the Left’s cartoonish indictment of Bush. Yet, there is no real mystery about where Obama wants to take us. He has backed down on closing Gitmo, but he wants it closed. He has backed down -- at least until after the midterm elections -- on trying the 9/11 hijackers in civilian court, but he wants all terrorists tried in civilian court. He has kept military tribunals available in theory, but, in practice, he won’t use them.

Indeed, for Reuters to depict Obama as “favoring military tribunals in some cases and civilian trials in others” is laughable. The administration consigned a single terrorist, U.S.S. Cole bomber Abd al-Rahim al-Nashiri, to a military commission -- and then pulled the plug on it. The president wants to be perceived as pragmatic while clinging to ideology. He kept the commissions that he’d campaigned against and even feigned using them. But, transparently fearful that a successful commission prosecution would undermine his overarching goal of returning to Clinton-era counterterrorism, he killed the commission and hoped no one would notice.

#ad#Republicans, however, should take less comfort from the fact that people have noticed. “Obama the pragmatist” may be a discredited narrative, but Reuters’ assertion that “most Republicans say all terrorism suspects should be tried in military tribunals” is one the public, by and large, believes. That is a problem because it is not where most Americans are, nor should they be.

Contrary to the contentions of Obama partisans, Bush counterterrorism was not about removing civilian prosecution from the equation. If anything, national-security conservatives want more civilian prosecutions. We want stepped-up use of statutes, such as material support to terrorism, that enable the government to starve terrorist cells of funding and strangle plots in the cradle. We want aggressive investigation and prosecution of so-called home-grown terrorists who are inspired by Islamist ideology but without operational ties to al-Qaeda and its affiliates. We want the government to stop canoodling with the Muslim Brotherhood’s American satellites.

For one category of offender, we have urged the use of military tribunals: alien enemy combatants. Very specifically, these are jihadists, plotting and carrying out attacks against Americans, as members of the al-Qaeda enemy identified by Congress in its authorization of military force. Controlling such enemy prisoners is a core aspect of war-fighting. Military tribunals have the dual benefit of keeping control of this task where it belongs -- in the hands of commanders, not judges -- while ensuring that our enemies are not able to exploit civilian due process as a tool of warfare.

To insist that these offenders go to the military justice system is a far cry from wholesale rejection of civilian prosecution. Bush counterterrorism acknowledged that civilian due process has an important role to play, but not the starring role it had in the Nineties -- not if we are to prevent terrorist attacks rather than content ourselves with post-atrocity prosecutions.

Republicans need to do a better job of making this clear. The Obama administration has prioritized “outreach” to Islamists. It has quietly stifled the Bush crackdown on Islamic charitable fronts, a lifeline for terrorist organizations. Such policies critically undermine the Justice Department’s proper counterterrorism role. Yet Obama apologists have managed to convince a goodly portion of the public that Obama at least wants the Justice Department to have a counterterrorism role, whereas Republicans want to turn every terrorism case into a military matter.

The sooner that misimpression gets corrected, the more effectively a new Republican Congress will be able to probe what Obama counterterrorism has wrought.

-- 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

Terrorist Trials for Radicals

The Obama administration is taking an Alinskyite approach to the prosecution of Ahmed Ghailani.

Earlier this week, as sadly foretold here, Judge Lewis Kaplan suppressed the testimony of a key witness in the prosecution of Ahmed Ghailani for the 1998 bombings of American embassies in East Africa. Ghailani, a terrorist war criminal responsible for killing more than 200 people, is known as the “defendant” in Manhattan federal court, where the Obama administration has insisted on trying him. Judge Kaplan’s ruling, which effectively bars the government from proving that Ghailani purchased the TNT used to bomb the embassy in Tanzania, may well destroy the government’s case -- the Justice Department having already foreclosed itself from informing the jury that Ghailani has confessed to his role in the bombings and other al-Qaeda activities.

#ad#The episode calls to mind other chapters in the decades-long quest to meld due process and depravity. Nuremburg, for example: Winston Churchill wanted no part of it. He thought Adolf Hitler and the rest of the Nazi hierarchy ought to face summary execution -- that they should be “bumped off,” as he once put it, if you want to get technical.

Today’s hard Left shrieks at the thought. It is an Alinskyite shriek, the contrived kind. As part of the “political jujitsu” by which radicals would undo the West from within, Saul Alinksy shrewdly preached that the establishment -- the “haves” -- must “be constantly pushed to live up to their own book of morality and regulations.” Since in reality the radicals would be the ones writing this metaphorical book, Alinsky knew the establishment could never meet its inflated standards.

In the radical rendering, our morality and regulations -- or, as Barack Obama and Eric Holder like to call them, our “values” -- are pristine abstractions, rhetorically walled off from reality. That is why the president and his attorney general claim, so indignantly yet so absurdly, that a commonsense truism -- namely, that we have to balance the inevitable tension between liberty and security -- is a “false choice.” With the help of their media accomplices, leftists erect an Archimedean fortress where “values” are perfectly inviolable and live in perfect harmony.

Here on Planet Earth, our values -- actually, our principles -- are not Platonic forms. They are ideals born of gritty human experience. In real life, principles collide. We want sober deliberation and decisive action, justice and mercy, personal responsibility and a social safety net, hassle-free travel and terror-free aircraft. Something always has to give.

Moreover, as if the tradeoffs were not tricky enough, the something that gives is not always the same. It is situational. Sometimes, your safety is so well assured that you can afford to endow your enemies with significant legal protections. Other times, you are under siege, and the circumstances dictate a drone missile or, at the very least, a drum-head court-martial. There can be no fixed rules for this sort of dynamic. Rules are frozen in the time of their crafting. In balancing liberty and security, it is more important to have the right people and the right accountability.

For leftists, the right people must be judges. Somehow, by virtue of their Juris Doctor degrees and patronage appointments, judges personify the Archimedean point. Insulated from politics, they are accountable only to “the law” -- which is the Olympus in our “values” hierarchy (unless, of course, the robed Archimedeans decide the law gives corporations free-speech rights#...#in which case they are apt to get a public dressing down from the jujitsuka-in-chief).

In a free society, though, having the right people and making them accountable means something very different. It entails having policymakers who are faithful to our principles and apply those principles sensibly in light of the moment’s exigencies. It makes those policymakers answerable to the rest of us, whose lives hang in the balance. Our approval or disapproval -- expressed at the ballot box and in the court of public opinion -- is what gives the decisions legitimacy or dictates that they be changed.

#page#

Only in the Left’s morality play are all judgments easy. Only there are all who make those judgments either heroes or villains based solely on which side they take. For the rest of us, this is tough stuff. The principles of a life that is lived rather than imagined are not abstractions. In the flesh-and-blood world, where we cherish our liberty but recognize its dependence on our security, it is not a simple matter to diagnose how vulnerable we are to depraved actors. Finding the right balance is very difficult, the work of trial -- or no trial -- and error.

#ad#Churchill’s preference for no trial was not, as Alinsky would have framed it, the hypocrisy of an establishment icon who could not conform to the letter of his professed values. Quite the contrary: Churchill was evincing a devotion to the Western concept of a trial. His was “the ultimate principle,” as Justice Robert Jackson later stated it with eloquence: “Put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty.” If the outcome is already determined, Jackson reasoned, “there is no occasion for a trial.” Such an exercise would be sheer theater, unworthy of respect from those who hold real trials in esteem.

Those words ought to strike us like a thunderbolt. After ripping the heart out of the government’s case against Ghailani, Judge Kaplan concluded his brief opinion with this gem: The defendant’s “status as an ‘enemy combatant’ probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case.” Translation: Ghailani will be in jail whether or not we have the trial, and regardless of the outcome. The trial is an occasion for preening, not justice. It’s about making us feel better about ourselves, not about Ghailani, whose fate is sealed. Churchill didn’t want the nirvana of Nuremburg because he could not abide the idea of turning a trial into a farce. We want the farce because we cannot abide the idea of abandoning the nirvana of civilian trials. But far from nirvana, civilian trials in this context are a fetish.

Obviously, President Obama knows this. Guantanamo Bay is still open for business. At Bagram Air Base in Afghanistan, government officials detain and interrogate terrorists outside the prying eyes of the federal courts. In Pakistan, we kill terrorists without warrant or warning. The president has authorized all of these measures and more. On the campaign trail, “due process” can be a useful cudgel -- an Alinskyite “book” that the powers that be cannot live up to. But once the campaigning radical becomes the accountable president, it turns out that due process really is just the process that is due, the middle ground a policymaker strikes when he is forced to make choices -- not false choices -- between competing values.

President Obama is not the first person ever to be wrong in making these excruciating choices. I started out in 1993 believing, just as Attorney General Holder says he believes, that bringing foreign terrorists into our civilian courts and swaddling them in the majesty of the Bill of Rights was imperative if we were to keep faith with our values. I believed it because I wanted to believe it, and because I hadn’t been forced to confront the ramifications of applying it. Reality proved me wrong. In the event, we were betraying our higher obligation to protect the American people. And if we bent the rules to honor our higher obligation, the trial would no longer be a trial worthy of the name.

It is all so unnecessary. Military commissions are not kangaroo courts. The administration has affirmed this, however reluctantly, by endorsing them. If they are too politically freighted for Obama to direct them for the likes of Ghailani, there is no reason we can’t design a new system for national-security cases -- one that ensures fairness and trustworthy results without arming the enemies of humanity with a lawfare arsenal. All it takes is the courage to admit error and the will to correct it. That may be too much for those in the Alinsky thrall, but it would be a worthy task for a new Congress.

— 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

Embassy-Bombing Trial in Jeopardy

Civilian due-process standards are crippling the government's case.

Ahmed Ghailani has confessed to bombing the U.S. embassy in Tanzania twelve years ago. As he explained to the FBI in a series of 2007 interviews, he bought the TNT used in the explosion. He even identified the man from whom he purchased it -- a man who was subsequently located, who corroborated Ghailani’s confession, and who has been cooperating with American and Tanzanian authorities ever since. Ghailani also helped buy the truck and other components used to carry out the suicide attack.

The two simultaneous embassy bombings -- Ghailani’s in Dar es Salaam and a second, more devastating one at the American embassy in Nairobi, Kenya -- killed at least 224 people. The bombings made Ghailani, then in his early 20s, an icon of the jihad. He strode al-Qaeda’s training camps in Afghanistan and bonded with fellow terrorists, including some who would later conduct the 9/11 attacks. In fact, Ghailani was so highly regarded that he was chosen to serve as a bodyguard for Osama bin Laden himself.

#ad#All of that should make Ghailani’s trial, which is slated to begin in Manhattan federal court this week, a slam dunk. It is, however, anything but. Once again, politics has trumped national security and common sense.

The Obama administration has made Ghailani its test case to prove that the civilian criminal-justice system works perfectly well in wartime against enemy combatants -- to show that we don’t need military commissions or other alternatives specially tailored to address the peculiarities of terrorism cases. The administration figured Ghailani was a safe bet. After all, the embassy-bombing case had already been successfully prosecuted once: In 2001, prior to 9/11, four jihadists were tried, convicted, and sentenced to life imprisonment (although the jury voted to spare the two death-penalty defendants).

Yet, to prove its political point that there is no downside in vesting Ghailani -- a Tanzanian national whose only connection to the United States is his decision to make war on it -- with all the constitutional rights of an American citizen, the Justice Department has had to slash its case. DOJ is also finding that even more critical evidence may be suppressed by the trial judge. In short, the slam dunk has become a horse race, one the government could actually lose.

The jury won’t be hearing about Ghailani’s confession. It has been reported that, because he was a highly sought and highly placed al-Qaeda operative, Ghailani was subjected to harsh interrogation tactics by the CIA after being captured in Pakistan in 2004. To be sure, no jury should be permitted to hear a coerced confession. That is not because an alien terrorist held outside the U.S. in wartime has Fifth Amendment rights; it is because a proceeding in which a person is forced to be a witness against himself does not meet rudimentary standards of justice. Nevertheless, we are not referring here to what Ghailani may have told the CIA under duress; we are talking about the confession he gave the FBI three years later. The FBI does not use the CIA’s controversial tactics.

There was nothing unlawful about holding Ghailani as an enemy combatant in wartime. Indeed, the trial judge, Lewis Kaplan, has already rejected the terrorist’s claim that this detention violated his (purported) right to a speedy trial. Furthermore, CIA coercion would not undermine the validity of subsequent lawful treatment of Ghailani by other government actors. Judge Kaplan has also turned aside the terrorist’s claim that the prosecution must be dropped because he was “tortured.” Similarly, the CIA’s tactics do not render the FBI’s subsequent questioning unlawful.

Clearly, however, the prosecutors in New York do not want the trial to devolve into theater over the CIA interrogation methods. Were the government to try to prove Ghailani’s statements to the FBI, defense lawyers would have latitude to summon the CIA interrogators. They would argue that the CIA’s earlier, rough tactics tainted Ghailani’s subsequent, seemingly voluntary confession. The Justice Department is determined to steer clear of that controversy, and of any criticism that it exploited Bush-era tactics, even indirectly. But there’s a trade-off: The jury won’t learn that Ghailani admitted to planning the bombing, buying the TNT, and being celebrated afterward as an al-Qaeda hero.

The Justice Department figured it could roll those dice because it has a witness, Hussein Abebe, who is prepared to testify that he sold Ghailani the TNT. Not so fast, say Ghailani’s lawyers. They argue that the government learned about Abebe only because of Ghailani’s confession. By their lights, having agreed not to use it, the government implicitly concedes that the confession is toxic; therefore, the argument goes, it is no more proper for prosecutors to call a witness discovered because of the confession than it would be to use the confession itself.

Prosecutors reply that there is a big difference between using admissions pried from a defendant under coercion and merely calling a witness. The government may inevitably have found the witness anyway. Moreover, even if the confession tipped the government off to Abebe’s existence, he is a volunteer, providing testimony of his own free will.

Surprisingly, Judge Kaplan appears to be siding with the defense in this dispute. In a heavily redacted 37-page ruling issued in August, Kaplan concluded that the government had failed to meet the exacting burden required to show that it would inevitably have learned about Abebe without Ghailani’s confession. More dismayingly, the judge was unmoved by the government’s contention that the “fruit of the poisonous tree” doctrine was inapposite.

#page#Prosecutors argued that this doctrine -- a Fourth Amendment suppression-of-evidence remedy invented by judges -- was designed to discourage bad behavior by police (specifically, unlawful searches). To the contrary, the FBI’s questioning of Ghailani had been legal and in the national-security interest of a country at war with a ruthless terror network about which Ghailani has intimate knowledge.

Kaplan, however, accepted the theory pushed by the defense: that Ghailani has full-fledged Fifth Amendment rights, and that any coercion from the CIA interrogation infected all later government questioning of him. Thus, according to the judge, even if the FBI’s interrogation was proper, Abebe’s testimony could still be barred because a Fifth Amendment violation occurs, not when information is coerced, but when the coerced information is used against the accused.

#ad#Kaplan is more amenable to the government’s argument that Abebe is willing to testify of his own free will -- in other words, that the witness’s voluntary act would be an independent development, one not directly caused by the coercion of Ghailani. Even here, though, the judge remains unconvinced. True, the government has represented that Abebe is voluntarily cooperating; but it has not proven that he is doing so. According to Judge Kaplan’s opinion, there has been no affidavit from the witness himself, nor any testimony from CIA, FBI, or Tanzanian officials about the circumstances of Abebe’s apprehension and eventual cooperation. The judge has not slammed the door on prosecutors, but he has indicated that the testimony will be barred absent a compelling demonstration that this witness -- fully aware that he is under no obligation to provide evidence against a terrorist mass murderer -- actually wants to come to New York and testify, and is not acting under any duress from U.S. or Tanzanian authorities.

If Abebe’s testimony were stricken, the Justice Department’s case would be deeply -- and perhaps fatally -- wounded. As one prosecutor told the court, “This is a giant witness for the government. There’s nothing bigger than him.” Without Abebe, prosecutors could not establish that Ghailani obtained the TNT. He’d be able to argue that his having helped a friend buy a truck does not mean he knew people were planning to use the truck in a bombing, much less to strike an American embassy. Even proving the truck purchase could be problematic. As Ben Weiser of the New York Times relates, it’s been nine years since the last embassy-bombing trial, and the owner of the truck -- a witness in that case who helped establish that Ghailani participated in the truck’s purchase -- has since died.

Ghailani’s trial was supposed to start Monday. It has been postponed until today to allow the court to resolve the witness issue. If Abebe’s testimony is disallowed, the government will almost certainly appeal, potentially delaying the trial for weeks, if not longer.

Playing with fire like this is no way to prove a point. Maybe the Justice Department will convince the courts to permit the testimony of their crucial witness. Maybe the very talented prosecutors in Manhattan will even figure out a way to convict Ghailani without Abebe’s testimony. But we are intentionally tying our hands behind our backs and running an unnecessarily high risk of acquittal in a case involving a war criminal.

Civilian trials have a vital place in our counterterrorism strategy -- particularly in the terrorism-financing cases that the Obama administration shuns because they involve ostensible Islamic charities. Still, it is no denigration of civilian prosecutions to point out that in a military commission -- the procedure Congress has designed and reaffirmed for war-crimes trials of enemy combatants -- there would be fewer hurdles to placing the most important evidence before the tribunal.

Military commissions need not assume that a defendant is endowed with all the rights of American citizens. They need only be fair. Of course, coerced confessions would be suppressed. Voluntary confessions, however, would be admissible. Available witnesses would be permitted to testify. Prior testimony from unavailable sources might well be considered as long as it appeared reliable -- such as the sworn testimony of a now-deceased witness who was subject to cross-examination. Nor would military commissions elbow the Justice Department out of the mix: Experienced federal prosecutors would be able to try the cases along with their military counterparts, just as civilian defense attorneys join military lawyers in the representation of defendants.

This shouldn’t be about scoring points. It should be about maximizing the chance of convicting a terrorist with American blood on his hands.

— 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

The Trouble with Islamic Outreach

The FBI is hosting some bad actors.

I wonder if the FBI will be inviting Hatem Abudayyeh to tour the government’s most sensitive anti-terrorism facilities, snoop around the top-secret National Counterterrorism Center, and maybe even pop by the FBI training center in Quantico. Surely he’d be a splendid addition to the Bureau’s next six-week “Citizen’s Academy,” where he could ask our agents searching questions about their investigative practices and anti-terrorism policies.

Oh, sure, he may be at the center of a federal grand-jury investigation in Chicago. And yes, as Politico’s Josh Gerstein reports, the selfsame FBI, armed with a search warrant, did just finish raiding Abudayyeh’s home last week, apparently seeking evidence tying Abudayyeh to support for terrorist organizations. But what’s the big whoop? After all, Mr. Abudayyeh “has never been convicted of a crime and never [been] charged with a crime.”

#ad#According to Ross Rice, top flack for the FBI’s Chicago field office, that’s the Bureau’s new gold standard. Yes, you may be a cog in the terror-support wheel. You may be virulently anti-American and committed to the destruction of Israel. But if we haven’t indicted you yet, you’re okay in our book -- c’mon in and see what we’ve got.

To be fair, Bureau spokesman Rice wasn’t talking about Abudayyeh. He was speaking instead of Kifah Mustapha. Sheikh Mustapha is a recent graduate of the Citizen’s Academy, where he got the full lowdown on our nation’s most sensitive domestic-security locations and practices. Prior to that, Mustapha was best known to the government as “unindicted co-conspirator no. 31” in the most significant terrorism-financing case ever brought by the Justice Department: the Holy Land Foundation prosecution in which several of the sheikh’s confederates were convicted of sending millions of dollars to Hamas.

It was in the HLF case that the government revealed the FBI’s discovery of documents proving an Islamist conspiracy to “destroy” the U.S. “from within” by means of “sabotage.” The trove in question, describing what conspirators called their “civilization jihad,” had been seized from the home of a top Muslim Brotherhood operative. The Brotherhood’s top U.S. priority, the documents showed, was to support the terrorist operations of Hamas, the Brotherhood’s Palestinian branch, which is -- the government has declared and Hamas’s own charter brays -- dedicated to the annihilation of Israel.

The Brotherhood coordinated Hamas support in the U.S. through an outfit called the Islamic Association of Palestine. The IAP and other Brotherhood fronts set up the HLF to be Hamas’s American piggy bank. As terrorism analyst Patrick Poole recounts, Mustapha was the registered agent of the HLF in Illinois. The purported “Islamic charity” paid him more than $154,000 for his efforts between 1996 and 2000. Moreover, at the HLF trial, an FBI agent testified that Mustapha sang in an HLF-sponsored band that regularly featured songs dedicated to killing Jews and glorifying Hamas.

What a guy! Obviously, the Brotherhood thought so. Mustapha was soon made the imam of the infamous Bridgeview mosque in Chicago. As the Chicago Tribune observed in a probing 2004 report, that mosque’s leaders “are men who have condemned Western culture, praised Palestinian suicide bombers and encouraged members to view society in stark terms: Muslims against the world.” They also exhorted Muslims to resist “melting into American society, culture and lifestyle,” executing the Brotherhood’s “voluntary apartheid” strategy of establishing Muslim enclaves throughout the West, to be governed by Islam’s authoritarian sharia law. Bridgeview’s Muslim community became a bastion of Hamas support. Indeed, upon being captured by Israeli forces for funding Hamas, a Chicago academic and Hamas operative named Muhammad Salah confessed that he’d been recruited into the Muslim Brotherhood at the Bridgeview mosque.

#page#Mustapha’s participation in the Citizen’s Academy so soon after his identification as an unindicted co-conspirator has been a source of supreme embarrassment to the FBI. At first, outraged citizens who called the Bureau’s Washington headquarters to complain were told that reports of Mustapha’s inclusion in a sensitive-access FBI program were false -- and even that a picture showing Mustapha with other participants (see Pat Poole’s Big Peace report) must have been photo-shopped. Alas, that story had a couple of holes: The class picture was an official Bureau photo and the class had been covered by a local ABC correspondent who remembered the sheikh quite well.

Thus came explanation number two: Yes, Mustapha was there, and yeah, maybe that means we took a Hamas supporter through a few top-secret locations, but don’t look at us -- blame Chicago. Headquarters thus started referring irate callers to the Chicago field office, where Mr. Rice now labors through explanation number three: Sheikh Mustapha is our guy.

#ad#Come again? Rice dutifully explains that if the Feebs had really thought the unindicted Hamas coconspirator “was a security risk, we wouldn’t have included him.” But he was included because “he is a very influential leader of the Palestinian community here and imam of the largest mosque and was a welcome addition.”

Of course he was. After all, the “Citizen’s Academy” is part of the federal government’s top national-security priority. Would that be choking off Muslim support for terrorism? Surely you jest. Our principal objective is “Muslim outreach.”

That’s why you might find Hatem Abudayyeh down there at Quantico any time now. Sure, he may be caught up in an investigation of terrorism support, but why should that make a difference? Mustapha was not just suspected; the Justice Department actually went to the trouble of designating him as a coconspirator and proving his Hamas ties in its case against the HLF. As far as the FBI’s Chicago field office was concerned, that makes him an asset and puts him at the head of the class.

Plus, Abudayyeh already has an even more prestigious credential: He’s been through White House Muslim outreach. As Josh Gerstein explains, Abudayyeh was among a select group invited to the White House in April for a briefing by the Office of Public Engagement on what the Obama administration says involved issues of “concern” for the Arab American community.

Clearly, Abudayyeh is very concerned about such matters. That’s why, for example, he strenuously objected in a 2006 interview to the American description of “Hamas, Hezbollah, and the other Palestinian and Lebanese resistance organizations as ‘terrorists.’” Instead, “the real terrorists are the governments and military forces of the U.S. and Israel.”

Sounds like an ideal “outreach” partner, no?

By the way, it is sentiments like those that landed Abudayyeh at the Arab-American Action Network, where he is currently executive director. Why does that get you a White House briefing? Well, it probably helps that the AAAN was founded by President Obama’s good friends Mona and Rashid Khalidi. That would be the Columbia professor Rashid Khalidi, the guy who used to be Yasser Arafat’s mouthpiece.

Did I mention that the AAAN got started with seed money from the far-left Woods Foundation -- whose board members at the time included former Weather Underground terrorist Bill Ayers and his friend, a Chicago community organizer turned pol named Barack Obama?

There’s nothing like outreach.

– 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

Re: Assassination

I agree with brother Kevin that there is a certain bloodlessness in the lawyers’ arguments about the potential assassination of al-Awlaki. But in his admirable effort to get to something more fundamental than law, I think Kevin is over-lawyering this one.

As I argued the last time we went around on this, the conduct of war is more a political matter than a legal one. I won’t rehash the Supreme Court jurisprudence supporting the proposition that an American citizen who fights for a foreign enemy in wartime can be treated like any foreign enemy combatant. A couple of non-legal points are worth highlighting, though.

First, during the nine years since Congress authorized military force after 9/11, we have not seen many assassinations of the kind Kevin fears -- not even for alien terrorists, much less Americans. Sure, there’s always reason to be concerned when we’re talking about something as grave as taking life, but there’s no empirical cause for alarm regarding this country’s practices. Second, while we are not privy to the classified details, the assassination license on al-Awlaki is almost certainly not a green-light to kill him under any and all circumstances. Instead, I suspect, it is a license to deal sensibly with a very specific problem.

After the 1998 embassy bombings, the government had several opportunities to kill Osama bin Laden. It didn’t happen because, notwithstanding President Clinton’s post-9/11 claims that he had tried to take bin Laden out, he had actually given the CIA ambiguous instructions -- i.e., Clintonesque instructions that would enable him to hang the CIA out to dry in the event of international condemnation over any civilian casualties. As the 9/11 Commission found, the agency was left unsure about what it was permitted to do in a situation either where it was theoretically possible to take bin Laden alive, or where killing/capturing bin Laden presented a high risk of collateral damage.

In addition, and quite apart from bin Laden, the issue of collateral damage (mainly, the killing of non-combatants) has vexed American military operations since Bosnia in the mid-Nineties. While our NATO allies are signatories to the 1977 Protocol I to the Geneva Conventions, we are not. Protocol I makes it harder to attack a militarily legitimate target if there is a material risk of damage to targets deemed not militarily legitimate (usually, civilians and civilian infrastructure).

Consequently, I suspect President Obama’s assassination authorization on al-Awlaki is intended to deal with the following not unlikely situation: Our military or intelligence agents get reliable information that high level al-Qaeda operatives are meeting in a location and that al-Awlaki is with them. Understandably, Obama does not want to find himself in Clinton’s shoes: namely, trying to explain why we passed up a golden opportunity to shoot a hellfire missile at a safehouse in which a group of jihadists was plotting to attack Americans. If we suffer another mass-murder attack, can you imagine having to explain to the next 9/11 Commission that you didn’t zap Zawahiri when you had the chance because Awlaki was standing next to him?

Here, it is worth noting Kevin’s concession, “If Awlaki were to be killed on a battlefield, I’d shed no tears.” He has nailed one of the great conundrums of the war: What is a battlefield -- and who should get to decide, the courts or the commander-in-chief and military professionals? We are fighting non-state actors who (a) plot against us in safe havens where governments either can’t or won’t eject them, and (b) reserve unto themselves the right to strike anyplace (including civilian areas) at any time, in flagrant violation of the laws of war. For these reasons, I have to disagree with Kevin’s suggestion, when it comes to killing an American citizen terrorist, doing it in Pakistan or Yemen is no different from doing it in New York, Washington, or Topeka. The former are very different. They are areas where al-Qaeda has sanctuary, without which its capacity to project power against us (i.e., the thing that keeps the war going) would be greatly diminished.

Denying the terrorists safe haven is, in fact, one of the few justifications for the use of military force on which there is broad consensus, left and right. That’s why I continue to think candidate Obama’s position on al-Qaeda in Pakistan (i.e., if the Pakistani government won’t take care of terrorist sanctuaries, the U.S. must attack them) was far superior to candidate McCain’s (i.e., Pakistan is our great friend and ally, and we can’t conduct unilateral attacks in Pakistani territory).

So I don’t think killing Awlaki in an al-Qaeda safe haven is nearly as problematic as would be, say, killing him in a hotel in Paris. And it’s worth noting that, even in Pakistan, it has not been our practice to kill terrorists unless it can be done in a valid military operation -- e.g., the aforementioned situation of top terrorists gathered together for a meeting. In many other situations, terrorists have been taken alive. We no doubt had grounds to kill rather than capture, but if the guy could be taken alive, if it was a simple matter to capture him, the preference is to do that and try to interrogate him for intelligence purposes. (To be sure, the Obama administration’s anti-Bush dementia on interrogations and military detention has complicated those options, leading to allegations that the president has sometimes opted to kill when it would have been easy to capture; but, left to their own devices, the military and intelligence community would still prefer to capture.)

I mention all this to set up the most important point (which readers may recognize as my favorite point): We are a political society, not a legal one. The executive branch typically has vast legal authority, but its exercise of that authority is hemmed in -- thank goodness -- by politics. As I’ve noted before, if five guys sitting in a circle pass a single marijuana joint around, each hand-to-hand exchange is actually a felony violation, punishable (under federal law) by up to 20 years’ imprisonment. Yet, no prosecutor would ever bring such a case. He would be fired and the president who appointed him would sustain a lot of political damage. The lesson is clear: People see the sense in having a weighty penalty available for drug-distribution offenses but expect the executive branch to use it responsibly.

I think the same principle applies here. In Ex Parte Quirin, the 1942 German-saboteur case, one of the terrorists was an American citizen and he was here to conduct terrorist attacks -- which the government knew at the time he was apprehended. But, even though war had been declared, the government didn’t assassinate him or his German confederates. They were captured and given a military trial before being executed. Another U.S. citizen, Jose Padilla, was sent by al-Qaeda after 9/11 (i.e., after Congress authorized military force) to conduct terrorist attacks. He wasn’t assassinated either; he was arrested in Chicago, held for a few years as an enemy combatant, and eventually convicted in a civilian trial (albeit for terrorist crimes unrelated to the post-9/11 plot).

The Obama administration is not, by authorizing Awlaki’s assassination, green-lighting his killing under all conceivable circumstances. The administration, I suspect, is just making sure that if he’s found congregating in a sanctuary with other terrorists, we can bomb the sanctuary -- we don’t have to forfeit a worthy military operation just because one of the terrorists happens to be an American citizen. But if he’s found under other circumstances, where there is no demonstrable military value in killing him, he will be captured, held, interrogated (one hopes), and tried -- either by a civilian or (I would hope) a military court.

This seems like common sense to me. The unfortunate thing is that the assassination authorization should never have been made public. Clearly, the administration leaked it to underscore the president’s willingness to fight al-Qaeda aggressively. All the leak has done, though, is cause unnecessary legal headaches. If the administration had handled this top-secret authorization appropriately, chances are: Awlaki would, at some point, have been either killed or captured; the attendant circumstances would have made it obvious why the option chosen (kill or capture) was chosen; and no one would ever have thought to ask whether Obama had authorized his assassination. 

Andrew C. McCarthy