Commentary Magazine


Topic: Bill Burck

The Obama Team’s Criminal-Justice Model Fails

The Obama administration came into office convinced that the Bush approach to fighting terrorism was flawed and that instead we could apply criminal-justice rules in the war against Islamic terrorism. It proved unworkable. Now the administration is in a muddle — trying to alter a criminal-justice model that plainly doesn’t work but misunderstanding the legal landscape and the alternatives they have.

Bill Burck and Dana Perino explain that by suggesting that Miranda rules need to be altered, Eric Holder has in essence confessed to error:

The administration is making a number of admissions here: Mirandizing Umar Farouk Abdulmutallab, aka the underwear bomber, after only 50 minutes of questioning was a mistake; terrorists are enemies of America, not ordinary criminals; and the law-enforcement approach to combatting terrorism, which is designed to obtain evidence admissible at trial after a crime has already been committed, is not the most effective way to obtain intelligence to prevent future attacks.

This is an important step forward and a sign that, after the Manhattan subway plot, Fort Hood, Detroit, and now Times Square, the administration has become more adaptable to the realities of the war on terror. Yet the jury is out on whether the administration has a real plan or is merely improvising. Times Square bomber Faisal Shahzad remains in the criminal justice system and has not been designated as an enemy combatant, though he is still eligible for such designation.

Burck and Perino make a key point: we can designate even U.S. citizens to be enemy combatants. (“No less an authority than the U.S. Supreme Court, in Hamdi v. Rumsfeld (2004), resolved this question: The president has the authority to hold even U.S. citizens as enemy combatants if he believes they are working with the Taliban, al Qaeda or associated terrorist groups.”) This is probably true even if the U.S. citizen is on U.S. soil (“the federal Court of Appeals for the Fourth Circuit answered in the affirmative in Padilla v. Hanft).

So we have an administration that in all its condescension and criticism of the prior administration came up with a flawed alternative but that still lacks a full grasp of the alternatives. How could this be? Perhaps they are getting terrible advice from the Justice Department. One wonders what Elena Kagan thinks of all this. She, of course, is part of that brain trust. Maybe she should answer some tough questions at her confirmation hearing, starting with her views on what existing law says about terror suspects. Her colleagues might find it enlightening — provided she knows the law better than Holder.

The Obama administration came into office convinced that the Bush approach to fighting terrorism was flawed and that instead we could apply criminal-justice rules in the war against Islamic terrorism. It proved unworkable. Now the administration is in a muddle — trying to alter a criminal-justice model that plainly doesn’t work but misunderstanding the legal landscape and the alternatives they have.

Bill Burck and Dana Perino explain that by suggesting that Miranda rules need to be altered, Eric Holder has in essence confessed to error:

The administration is making a number of admissions here: Mirandizing Umar Farouk Abdulmutallab, aka the underwear bomber, after only 50 minutes of questioning was a mistake; terrorists are enemies of America, not ordinary criminals; and the law-enforcement approach to combatting terrorism, which is designed to obtain evidence admissible at trial after a crime has already been committed, is not the most effective way to obtain intelligence to prevent future attacks.

This is an important step forward and a sign that, after the Manhattan subway plot, Fort Hood, Detroit, and now Times Square, the administration has become more adaptable to the realities of the war on terror. Yet the jury is out on whether the administration has a real plan or is merely improvising. Times Square bomber Faisal Shahzad remains in the criminal justice system and has not been designated as an enemy combatant, though he is still eligible for such designation.

Burck and Perino make a key point: we can designate even U.S. citizens to be enemy combatants. (“No less an authority than the U.S. Supreme Court, in Hamdi v. Rumsfeld (2004), resolved this question: The president has the authority to hold even U.S. citizens as enemy combatants if he believes they are working with the Taliban, al Qaeda or associated terrorist groups.”) This is probably true even if the U.S. citizen is on U.S. soil (“the federal Court of Appeals for the Fourth Circuit answered in the affirmative in Padilla v. Hanft).

So we have an administration that in all its condescension and criticism of the prior administration came up with a flawed alternative but that still lacks a full grasp of the alternatives. How could this be? Perhaps they are getting terrible advice from the Justice Department. One wonders what Elena Kagan thinks of all this. She, of course, is part of that brain trust. Maybe she should answer some tough questions at her confirmation hearing, starting with her views on what existing law says about terror suspects. Her colleagues might find it enlightening — provided she knows the law better than Holder.

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The Times Square Attack and the Effort to Redefine “Terrorism”

Bill Burck and Dana Perino write: “No one yet knows for sure who is responsible for the attempted terrorist attack in Times Square last night. It could be al-Qaeda or some other Islamist terrorist group, or some other group, or an individual acting on his or her own. Initial reports are that it may have been a crude bomb and a relatively amateur attack.” But they warn this should serve as a reminder:

[I]t should remind us that the federal officials who continue to insist that New York City is the best place to try KSM and other 9/11 terrorists are, frankly, out of their minds. Attorney General Eric Holder remains delusional on this front, as he has continued to say that a civilian trial in New York remains on the table, despite the uniform protest of all major New York public officials from the mayor to the police chief to the governor.

New York is the world’s number-one terrorist target, and has been since at least he first World Trade Center bombing in 1993. Those who claim, in spite of all logic and experience, that New York could be secured if KSM were brought there for trial are either being misleading or are plain old crazy.

It does suggest that those devising the administration’s approach to terrorism do so without consideration of or contact with the real world. It is the stuff of academic theory and law-school textbooks, not of the real world or the potential peril faced by ordinary Americans.

Moreover, the incident and the ensuing coverage have highlighted that there is a new definitional game afoot. The administration, in concert with the mainstream media, has begun to set up a false dichotomy: on the one hand, the perpetrators are amateurs, “lone wolves”; on the other, they are “real” Islamic terrorists. But this is folly. Was Major Hassan an “amateur” because he hadn’t perfected his terror skills in previous attacks? Was he a lone wolf because he merely e-mailed a radical imam and did not receive specific instructions from an al-Qaeda operative? When we are dealing with an enemy that does not observe the rules of war and does not conduct battle operations in uniform or within a defined chain of command, these distinctions make little sense.

What matters is that there are Islamic fundamentalists who seek to wage war on the West. (New York Police Chief Raymond Kelly supplied a moment of clarity when he explained, “A terrorist act doesn’t necessarily have to be conducted by an organization. An individual can do it on their own.”) So the notion that we should all breathe a sigh of relief if a particular jihadist is merely inspired by, but not directly linked to, an al-Qaeda operation seems designed only to inure ourselves to the dangers we face and to transform these incidents into “crimes” rather than acts of war.

As the New York Times noted, “Investigators were reviewing similarities between the incident in Times Square and coordinated attacks in the summer of 2007 at a Glasgow airport and a London neighborhood of nightclubs and theaters. Both attacks involved cars containing propane and gasoline that did not explode. Those attacks, the authorities believed, had their roots in Iraq.” We will learn more as the investigation proceeds about whether this was, in fact, a jihadist-motivated attack. But we should not fall into the trap of imagining that the number or organization structure of the attackers is what defines “terrorism.” That’s a recipe for ignoring the danger posed by stunts like affording KSM a public trial — where more “lone wolves” will hear the call to wage war on America.

Bill Burck and Dana Perino write: “No one yet knows for sure who is responsible for the attempted terrorist attack in Times Square last night. It could be al-Qaeda or some other Islamist terrorist group, or some other group, or an individual acting on his or her own. Initial reports are that it may have been a crude bomb and a relatively amateur attack.” But they warn this should serve as a reminder:

[I]t should remind us that the federal officials who continue to insist that New York City is the best place to try KSM and other 9/11 terrorists are, frankly, out of their minds. Attorney General Eric Holder remains delusional on this front, as he has continued to say that a civilian trial in New York remains on the table, despite the uniform protest of all major New York public officials from the mayor to the police chief to the governor.

New York is the world’s number-one terrorist target, and has been since at least he first World Trade Center bombing in 1993. Those who claim, in spite of all logic and experience, that New York could be secured if KSM were brought there for trial are either being misleading or are plain old crazy.

It does suggest that those devising the administration’s approach to terrorism do so without consideration of or contact with the real world. It is the stuff of academic theory and law-school textbooks, not of the real world or the potential peril faced by ordinary Americans.

Moreover, the incident and the ensuing coverage have highlighted that there is a new definitional game afoot. The administration, in concert with the mainstream media, has begun to set up a false dichotomy: on the one hand, the perpetrators are amateurs, “lone wolves”; on the other, they are “real” Islamic terrorists. But this is folly. Was Major Hassan an “amateur” because he hadn’t perfected his terror skills in previous attacks? Was he a lone wolf because he merely e-mailed a radical imam and did not receive specific instructions from an al-Qaeda operative? When we are dealing with an enemy that does not observe the rules of war and does not conduct battle operations in uniform or within a defined chain of command, these distinctions make little sense.

What matters is that there are Islamic fundamentalists who seek to wage war on the West. (New York Police Chief Raymond Kelly supplied a moment of clarity when he explained, “A terrorist act doesn’t necessarily have to be conducted by an organization. An individual can do it on their own.”) So the notion that we should all breathe a sigh of relief if a particular jihadist is merely inspired by, but not directly linked to, an al-Qaeda operation seems designed only to inure ourselves to the dangers we face and to transform these incidents into “crimes” rather than acts of war.

As the New York Times noted, “Investigators were reviewing similarities between the incident in Times Square and coordinated attacks in the summer of 2007 at a Glasgow airport and a London neighborhood of nightclubs and theaters. Both attacks involved cars containing propane and gasoline that did not explode. Those attacks, the authorities believed, had their roots in Iraq.” We will learn more as the investigation proceeds about whether this was, in fact, a jihadist-motivated attack. But we should not fall into the trap of imagining that the number or organization structure of the attackers is what defines “terrorism.” That’s a recipe for ignoring the danger posed by stunts like affording KSM a public trial — where more “lone wolves” will hear the call to wage war on America.

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Flotsam and Jetsam

Double standards, you say? John Noonan: “Israel gets an ultimatum; Syria gets an ambassador.” He suggests: “Syria doesn’t deserve to be recognized or rewarded with an ambassadorial presence — at least, not until lawmakers and diplomats see tangible evidence of the positive liberalization trend that was promised by Bashar al-Assad when he assumed power in 2000. The State Department needs to articulate clearly what foreign policy objectives they expect to be served by reopening an embassy in Damascus, but–more importantly–Syria must prove to the world that they are capable of rational action and discourse.”

Farce, you say? Bill Burck and Dana Perino find it “truly astonishing that Rep. Bart Stupak has been duped into thinking the president’s executive order has done, or can do, anything to alter the Senate bill. Executive orders have the force of law only within the executive branch and only to the extent they are consistent with legislation. Stupak believes that the Senate bill does not do enough to prohibit the use of federal funds; what he apparently does not realize is that the executive order can do no more to prohibit use of federal funds for abortion than the Senate bill does.”

Disingenuous, you say? Debbie Wasserman Schultz says the executive order is meaningless.

Unifying, you say? “Pro-choice and pro-life groups on Sunday strongly denounced a deal by pro-life Democrats and President Obama to ensure limits on taxpayer money for abortion services, outlined in a Senate health insurance overhaul now on the verge House approval. Abortion rights supporters chastised the president, saying he caved on his principles by agreeing to issue an executive order that strengthens limits on abortion. Abortion opponents, on the other hand, said Obama’s pending order does nothing to prohibit spending on abortion services as provided in the Senate bill.” Really, though the pro-choice groups know it’s just for show.

Fortuitous, you say? “You’ve probably never heard of Dan Benishek, but he’s a Republican running against Rep. Bart Stupak (D-MI), who struck a deal with Nancy Pelosi that is believed to be the decisive vote to pass ObamaCare. More than 1,700 people have already joined Benishek’s Facebook page. Liberty First PAC has added Stupak to its target list, and Stupak is probably going to be on a lot of other lists pretty soon.”

Obvious, you say? Jeffrey Goldberg is miffed at AIPAC because there is “a dearth of speakers who approach the most contentious issues of the Middle East from a left-Zionist perspective.” Hmm. Could be that these people don’t share it. Haven’t heard anyone pining for Eric Yoffie to announce what settlement terms he would like to foist on Israel.

Wising up, you say? “[Joseph] Cao (R-La.) said that the deal that Rep. Bart Stupak (D-Mich.) struck with the White House for an executive order on abortion funding doesn’t go far enough.”

Disturbing, you say? Mike Pence says Bart Stupak is “trading 30 years of pro-choice protections in the law for a piece of paper signed by the most pro-abortion president in history.”

Double standards, you say? John Noonan: “Israel gets an ultimatum; Syria gets an ambassador.” He suggests: “Syria doesn’t deserve to be recognized or rewarded with an ambassadorial presence — at least, not until lawmakers and diplomats see tangible evidence of the positive liberalization trend that was promised by Bashar al-Assad when he assumed power in 2000. The State Department needs to articulate clearly what foreign policy objectives they expect to be served by reopening an embassy in Damascus, but–more importantly–Syria must prove to the world that they are capable of rational action and discourse.”

Farce, you say? Bill Burck and Dana Perino find it “truly astonishing that Rep. Bart Stupak has been duped into thinking the president’s executive order has done, or can do, anything to alter the Senate bill. Executive orders have the force of law only within the executive branch and only to the extent they are consistent with legislation. Stupak believes that the Senate bill does not do enough to prohibit the use of federal funds; what he apparently does not realize is that the executive order can do no more to prohibit use of federal funds for abortion than the Senate bill does.”

Disingenuous, you say? Debbie Wasserman Schultz says the executive order is meaningless.

Unifying, you say? “Pro-choice and pro-life groups on Sunday strongly denounced a deal by pro-life Democrats and President Obama to ensure limits on taxpayer money for abortion services, outlined in a Senate health insurance overhaul now on the verge House approval. Abortion rights supporters chastised the president, saying he caved on his principles by agreeing to issue an executive order that strengthens limits on abortion. Abortion opponents, on the other hand, said Obama’s pending order does nothing to prohibit spending on abortion services as provided in the Senate bill.” Really, though the pro-choice groups know it’s just for show.

Fortuitous, you say? “You’ve probably never heard of Dan Benishek, but he’s a Republican running against Rep. Bart Stupak (D-MI), who struck a deal with Nancy Pelosi that is believed to be the decisive vote to pass ObamaCare. More than 1,700 people have already joined Benishek’s Facebook page. Liberty First PAC has added Stupak to its target list, and Stupak is probably going to be on a lot of other lists pretty soon.”

Obvious, you say? Jeffrey Goldberg is miffed at AIPAC because there is “a dearth of speakers who approach the most contentious issues of the Middle East from a left-Zionist perspective.” Hmm. Could be that these people don’t share it. Haven’t heard anyone pining for Eric Yoffie to announce what settlement terms he would like to foist on Israel.

Wising up, you say? “[Joseph] Cao (R-La.) said that the deal that Rep. Bart Stupak (D-Mich.) struck with the White House for an executive order on abortion funding doesn’t go far enough.”

Disturbing, you say? Mike Pence says Bart Stupak is “trading 30 years of pro-choice protections in the law for a piece of paper signed by the most pro-abortion president in history.”

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Does Anyone in the Administration Get It?

Bill Burck and Dana Perino have become invaluable analysts in deconstructing the Obama spin. (Let’s be frank here, “lies” is more accurate with regard to much of what has come out of the White House these days.) They spot John Brennan saying foolish things again:

After his disastrous television appearances, Brennan was relegated this weekend to giving a speech at the Islamic Center at New York University. Even there, however, he again said something profoundly misguided. Discussing the rate of recidivism of detainees released from Guantanamo, which some have put as high as 20 percent, Brennan said: “People sometimes use that figure, 20 percent, [and] say, ‘Oh my goodness, one out of five detainees returned to some type of extremist activity.’ You know, the American penal system, the recidivism rate is up to something about 50 percent or so, as far as return to crime. Twenty percent isn’t that bad.”

We’re not making this quote up. The president’s top counterterrorism adviser actually said that a 20 percent terrorist recidivism rate was good enough for government work. About 800 people have been detained at Guantanamo and about 600 have been released or turned over to the custody of other governments. Twenty percent means Brennan thinks it’s not a bad day’s work if 120 or so returned to terrorism. If that’s his definition of success, we would hate to see what failure looks like. Sen. Lindsey Graham, for one, doesn’t care to know and has joined in calls for Brennan’s resignation. Senator Graham’s views matter to the White House because he’s their best hope for a bipartisan solution to Guantanamo.

This is, as Burck and Perino point out, the criminal-justice model run wild. Generally, planes don’t get blown from the sky or buildings leveled when a common criminal is released unwisely. Not so with terrorists. And not a great argument to make to those Americans killed on the battlefield by a former Guantanamo detainee.

There is much speculation about “sides” in the Obama administration. Burck and Perino spot the Emanuel/Jones team vs. the Holder/Brennan team. Neither seems like a winning combination, I know. But the premise may not be valid. We, of course, have only one president, and he has been squarely on the side of the criminal-justice model and on the not-Bush anti-terrorism approach. The latter was his ticket into the White House, and the frequency with which he recites the “lost our way” mantra in reference to interrogation and detention policies suggests that he means it.

So the question, I think, is not which team should we root for (I, for one, would be pleased to see the entire quartet depart and would not want to bank on the wisdom of James Jones on anything other than the best D.C. biking trails), but whether the president has woken up to the realities of fighting Islamic fascists. I think the first indication that he has changed his thinking will be when he starts using the phrase “Islamic fundamentalists” or “Islamic jihadists.” No, I don’t think it will be anytime soon.

Bill Burck and Dana Perino have become invaluable analysts in deconstructing the Obama spin. (Let’s be frank here, “lies” is more accurate with regard to much of what has come out of the White House these days.) They spot John Brennan saying foolish things again:

After his disastrous television appearances, Brennan was relegated this weekend to giving a speech at the Islamic Center at New York University. Even there, however, he again said something profoundly misguided. Discussing the rate of recidivism of detainees released from Guantanamo, which some have put as high as 20 percent, Brennan said: “People sometimes use that figure, 20 percent, [and] say, ‘Oh my goodness, one out of five detainees returned to some type of extremist activity.’ You know, the American penal system, the recidivism rate is up to something about 50 percent or so, as far as return to crime. Twenty percent isn’t that bad.”

We’re not making this quote up. The president’s top counterterrorism adviser actually said that a 20 percent terrorist recidivism rate was good enough for government work. About 800 people have been detained at Guantanamo and about 600 have been released or turned over to the custody of other governments. Twenty percent means Brennan thinks it’s not a bad day’s work if 120 or so returned to terrorism. If that’s his definition of success, we would hate to see what failure looks like. Sen. Lindsey Graham, for one, doesn’t care to know and has joined in calls for Brennan’s resignation. Senator Graham’s views matter to the White House because he’s their best hope for a bipartisan solution to Guantanamo.

This is, as Burck and Perino point out, the criminal-justice model run wild. Generally, planes don’t get blown from the sky or buildings leveled when a common criminal is released unwisely. Not so with terrorists. And not a great argument to make to those Americans killed on the battlefield by a former Guantanamo detainee.

There is much speculation about “sides” in the Obama administration. Burck and Perino spot the Emanuel/Jones team vs. the Holder/Brennan team. Neither seems like a winning combination, I know. But the premise may not be valid. We, of course, have only one president, and he has been squarely on the side of the criminal-justice model and on the not-Bush anti-terrorism approach. The latter was his ticket into the White House, and the frequency with which he recites the “lost our way” mantra in reference to interrogation and detention policies suggests that he means it.

So the question, I think, is not which team should we root for (I, for one, would be pleased to see the entire quartet depart and would not want to bank on the wisdom of James Jones on anything other than the best D.C. biking trails), but whether the president has woken up to the realities of fighting Islamic fascists. I think the first indication that he has changed his thinking will be when he starts using the phrase “Islamic fundamentalists” or “Islamic jihadists.” No, I don’t think it will be anytime soon.

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Brennan Gets Caught Making Stuff Up

In a speech on the Senate floor, Sen. Jeff Sessions skewers John Brennan for suggesting that we would lose no intelligence by Mirandizing terrorists and that there really is no difference between the military and civilian tribunals. (As a rhetorical matter, this is a silly argument for the Obami to make, of course. They accused the Bushies of shredding constitutional rights, and now there is no difference between the two?) Well, this is the corner in which the Obami now find themselves — making specious arguments that knowledgeable people can easily swat down.

Bill Burck and Dana Perino explain that, indeed, Brennan “just doesn’t understand the law.” They write:

A suspect held as an enemy combatant in military custody has no right to be Mirandized and no right to remain silent. None whatsoever. An enemy combatant does get access to a lawyer to help him challenge his detention as an enemy combatant. And we’re confident that the government’s lawyers would have had no trouble convincing a judge that Abdulmutallab — a man caught trying to ignite a bomb in his underwear while on a plane, who then said before he was Mirandized that he’s a member of al Qaeda — is an enemy of the United States, not a common criminal. But that lawyer would not be present during interrogation, and we would not have to get Abdulmutallab’s consent before questioning him. The only naivete in evidence here is Brennan’s belief that the presence of a lawyer makes no difference. That would be news to the Supreme Court, which has repeatedly held that it is vital to protecting a criminal defendant’s — as opposed to an enemy combatant’s — rights that he have access to a lawyer at all times after arrest, including during government interviews.

One wonders if Brennan is really so uninformed or simply the designated spinner charged with fending off the onslaught of criticism following the decision to Mirandize the Christmas Day bomber. As Burck and Perino note, we are not talking here about how the terrorist would be tried. That can be decided later. (“Once Abdulmutallab had been thoroughly interrogated, the administration would have been free to choose whether to charge him in the civilian or military system [though we think the latter would be preferable].”)

Nor, as former Attorney General Michael Mukasey points out, was the decision preordained by any Bush-era decision or policy. He writes:

Contrary to what the White House homeland security adviser and the attorney general have suggested, if not said outright, not only was there no authority or policy in place under the Bush administration requiring that all those detained in the United States be treated as criminal defendants, but relevant authority was and is the opposite. The Supreme Court held in Hamdi v. Rumsfeld that “indefinite detention for the purpose of interrogation is not authorized” but also said in the same case that detention for the purpose of neutralizing an unlawful enemy combatant is permissible and that the only right of such a combatant — even if he is a citizen, and Abdulmutallab is not — is to challenge his classification as such a combatant in a habeas corpus proceeding. This does not include the right to remain silent or the right to a lawyer, but only such legal assistance as may be necessary to file a habeas corpus petition within a reasonable time.

That was the basis on which Mukasey authorized Jose Padilla to get a lawyer (merely to file a habeas petition). Echoing Burck and Perino, Mukasey explains, “There was thus no legal or policy compulsion to treat Abdulmutallab as a criminal defendant, at least initially, and every reason to treat him as an intelligence asset to be exploited promptly.” That would have been possible had the Obami set up the High Value Interrogation unit. But they hadn’t, of course. So FBI agents with no detailed information about Abdulmutallab were given the job of interrogating the al-Qaeda-trained operative.

The problem here, which Sessions, Mukasey, Burck, and Perino (as well as countless others) have spotted, is that the Obami let their lefty lawyers’ ideology go unchecked, interfering with the primary duty of the administration, namely to gather information and prevent further attacks on Americans. That is inexcusable. No amount of fakery or misdirection by Obama’s advisers can conceal that.

In a speech on the Senate floor, Sen. Jeff Sessions skewers John Brennan for suggesting that we would lose no intelligence by Mirandizing terrorists and that there really is no difference between the military and civilian tribunals. (As a rhetorical matter, this is a silly argument for the Obami to make, of course. They accused the Bushies of shredding constitutional rights, and now there is no difference between the two?) Well, this is the corner in which the Obami now find themselves — making specious arguments that knowledgeable people can easily swat down.

Bill Burck and Dana Perino explain that, indeed, Brennan “just doesn’t understand the law.” They write:

A suspect held as an enemy combatant in military custody has no right to be Mirandized and no right to remain silent. None whatsoever. An enemy combatant does get access to a lawyer to help him challenge his detention as an enemy combatant. And we’re confident that the government’s lawyers would have had no trouble convincing a judge that Abdulmutallab — a man caught trying to ignite a bomb in his underwear while on a plane, who then said before he was Mirandized that he’s a member of al Qaeda — is an enemy of the United States, not a common criminal. But that lawyer would not be present during interrogation, and we would not have to get Abdulmutallab’s consent before questioning him. The only naivete in evidence here is Brennan’s belief that the presence of a lawyer makes no difference. That would be news to the Supreme Court, which has repeatedly held that it is vital to protecting a criminal defendant’s — as opposed to an enemy combatant’s — rights that he have access to a lawyer at all times after arrest, including during government interviews.

One wonders if Brennan is really so uninformed or simply the designated spinner charged with fending off the onslaught of criticism following the decision to Mirandize the Christmas Day bomber. As Burck and Perino note, we are not talking here about how the terrorist would be tried. That can be decided later. (“Once Abdulmutallab had been thoroughly interrogated, the administration would have been free to choose whether to charge him in the civilian or military system [though we think the latter would be preferable].”)

Nor, as former Attorney General Michael Mukasey points out, was the decision preordained by any Bush-era decision or policy. He writes:

Contrary to what the White House homeland security adviser and the attorney general have suggested, if not said outright, not only was there no authority or policy in place under the Bush administration requiring that all those detained in the United States be treated as criminal defendants, but relevant authority was and is the opposite. The Supreme Court held in Hamdi v. Rumsfeld that “indefinite detention for the purpose of interrogation is not authorized” but also said in the same case that detention for the purpose of neutralizing an unlawful enemy combatant is permissible and that the only right of such a combatant — even if he is a citizen, and Abdulmutallab is not — is to challenge his classification as such a combatant in a habeas corpus proceeding. This does not include the right to remain silent or the right to a lawyer, but only such legal assistance as may be necessary to file a habeas corpus petition within a reasonable time.

That was the basis on which Mukasey authorized Jose Padilla to get a lawyer (merely to file a habeas petition). Echoing Burck and Perino, Mukasey explains, “There was thus no legal or policy compulsion to treat Abdulmutallab as a criminal defendant, at least initially, and every reason to treat him as an intelligence asset to be exploited promptly.” That would have been possible had the Obami set up the High Value Interrogation unit. But they hadn’t, of course. So FBI agents with no detailed information about Abdulmutallab were given the job of interrogating the al-Qaeda-trained operative.

The problem here, which Sessions, Mukasey, Burck, and Perino (as well as countless others) have spotted, is that the Obami let their lefty lawyers’ ideology go unchecked, interfering with the primary duty of the administration, namely to gather information and prevent further attacks on Americans. That is inexcusable. No amount of fakery or misdirection by Obama’s advisers can conceal that.

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And This Isn’t a Tribute to Our Legal System

One of the sillier arguments that the Obami have made in favor of a KSM civilian trial is that it will impress others (whom exactly it will impress is less than clear) with the wonders of our judicial system. There are plenty of reasons why this is a perfectly awful argument. For starters, our judicial system is a system of constitutional law and statute — both of which permit military tribunals for trying enemy combatants. So if anything, the Obami insistence on a civilian trial conveys the wrong message — namely, that for the sake of  political posturing the administration can make up rules as they go along.

But there is another important reason to doubt the “wonders of the judicial system” argument. Bill Burck and Dana Perino make the case that the Obami are bollixing up the KSM trial by their understandable but highly prejudicial statements:

Attorney General Holder, the nation’s top law-enforcement officer, has said KSM is guilty and should die. Check. The president has said more or less the same. Check. The entire political leadership of New York has announced that they cannot support trying him in New York City because of the disruption to the city and the sheer danger of holding KSM in downtown Manhattan. Check. The chair of the Senate Intelligence Committee, California Democrat Dianne Feinstein, has disclosed that the threat environment is such that trying KSM in New York City is just too dangerous. Check. The president’s chief spokesperson has said that no matter where KSM is tried, he “is going to meet his maker.” Check. It’s difficult to imagine anyplace in the United States that would not be prejudiced by these types of statements.

So it seems that the our system of criminal justice isn’t well suited and wasn’t designed to try enemy combatants. Turning terrorists over to the courts both harms our national security and sullies the court system, which is properly reserved for ordinary criminals, for whom the presumption of innocence is fundamental and respected by elected officials. In short, civilian trials of terrorists is a terrible idea, unworkable, politically untenable, and harmful to the legal system the Obami pretend to tout.

One of the sillier arguments that the Obami have made in favor of a KSM civilian trial is that it will impress others (whom exactly it will impress is less than clear) with the wonders of our judicial system. There are plenty of reasons why this is a perfectly awful argument. For starters, our judicial system is a system of constitutional law and statute — both of which permit military tribunals for trying enemy combatants. So if anything, the Obami insistence on a civilian trial conveys the wrong message — namely, that for the sake of  political posturing the administration can make up rules as they go along.

But there is another important reason to doubt the “wonders of the judicial system” argument. Bill Burck and Dana Perino make the case that the Obami are bollixing up the KSM trial by their understandable but highly prejudicial statements:

Attorney General Holder, the nation’s top law-enforcement officer, has said KSM is guilty and should die. Check. The president has said more or less the same. Check. The entire political leadership of New York has announced that they cannot support trying him in New York City because of the disruption to the city and the sheer danger of holding KSM in downtown Manhattan. Check. The chair of the Senate Intelligence Committee, California Democrat Dianne Feinstein, has disclosed that the threat environment is such that trying KSM in New York City is just too dangerous. Check. The president’s chief spokesperson has said that no matter where KSM is tried, he “is going to meet his maker.” Check. It’s difficult to imagine anyplace in the United States that would not be prejudiced by these types of statements.

So it seems that the our system of criminal justice isn’t well suited and wasn’t designed to try enemy combatants. Turning terrorists over to the courts both harms our national security and sullies the court system, which is properly reserved for ordinary criminals, for whom the presumption of innocence is fundamental and respected by elected officials. In short, civilian trials of terrorists is a terrible idea, unworkable, politically untenable, and harmful to the legal system the Obami pretend to tout.

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The Price of Lawyering Up

Bill Burck picks up on John Brennan’s comments on Sunday, indicating that we are prepared to “deal” — that is, make a deal and not get tough with the Christmas Day bomber Abdulmutallab. He explains:

Had Abdulmutallab been designated as an enemy combatant from the start, we would not have had to offer him anything at all in exchange for the information he possesses. He could have been interrogated immediately by professionals without Miranda warnings, without a lawyer, and against his will. Given that he appears to have been willing to talk for awhile before he demanded a lawyer, it is a fair assumption that he would have continued talking if he didn’t have the option of lawyering up. . . . So, here are the perverse incentives for terrorists who come to this country to kill us — assuming you don’t succeed in blowing yourself up and are captured, you will have a right to a lawyer, a right to remain silent, a right to trial by a jury of your “peers,” and the possibility of early release if you cooperate with authorities.

The Obami, their lefty lawyers at the Justice Department, and their media cheerleaders think this is exactly how it’s supposed to work. We show our values by extending Constitutional protections to those who did not enjoy such protections in previous wars. They ignore or indifferent to the fact that we thereby limit out intelligence gathering.

Even if we make a “deal,” valuable time is still lost, leads may evaporate, and information becomes stale. And if he chooses not to “make a deal,” (because, after all, he’s heading for a trial, many appeals and a journey through the ACLU-guided American legal system) we get no information at all. He might well conclude this is the smarter course. You see, after the trial, legal battles for privileges in prison ensue and perhaps a sympathetic judge will spring him at some point in the proceedings. If that’s what he and his lawyers can figure out, he would keep quiet now and we would get zilch. After all, making a deal isn’t a necessity when you can play the American system with a court-appointed lawyer.

What “smoking gun” are we missing by allowing this to unfold? What plots will go undetected? We don’t know. But the Obami think we get brownie points with someone for doing this. And those who are on the plane targeted by the next terrorist plot that might have been uncovered had Abdulmutallab been interrogated as an enemy combatant — what about them? Not much thought is given to them by Eric Holder and his crew.

The gap between the Obami and the rest of the country on this issue is vast, I would suggest. The average American must think this is insanity. We risk American lives so that terrorists will feel better about our justice system? That’s what the president thinks. That’s what his fellow Democrats think as they enable this policy by funding the Obami’s efforts to relocate and try terrorists in the U.S. – as well as by the appalling lack of Congressional oversight to date.

There is however a “solution” to this divergence between popular and leftist elite opinion: the 2010 elections. This should be a hot topic of debate. And soon enough we’ll find out whether Obama is defending “our” values or rather some misbegotten experiment in radical lawyering.

Bill Burck picks up on John Brennan’s comments on Sunday, indicating that we are prepared to “deal” — that is, make a deal and not get tough with the Christmas Day bomber Abdulmutallab. He explains:

Had Abdulmutallab been designated as an enemy combatant from the start, we would not have had to offer him anything at all in exchange for the information he possesses. He could have been interrogated immediately by professionals without Miranda warnings, without a lawyer, and against his will. Given that he appears to have been willing to talk for awhile before he demanded a lawyer, it is a fair assumption that he would have continued talking if he didn’t have the option of lawyering up. . . . So, here are the perverse incentives for terrorists who come to this country to kill us — assuming you don’t succeed in blowing yourself up and are captured, you will have a right to a lawyer, a right to remain silent, a right to trial by a jury of your “peers,” and the possibility of early release if you cooperate with authorities.

The Obami, their lefty lawyers at the Justice Department, and their media cheerleaders think this is exactly how it’s supposed to work. We show our values by extending Constitutional protections to those who did not enjoy such protections in previous wars. They ignore or indifferent to the fact that we thereby limit out intelligence gathering.

Even if we make a “deal,” valuable time is still lost, leads may evaporate, and information becomes stale. And if he chooses not to “make a deal,” (because, after all, he’s heading for a trial, many appeals and a journey through the ACLU-guided American legal system) we get no information at all. He might well conclude this is the smarter course. You see, after the trial, legal battles for privileges in prison ensue and perhaps a sympathetic judge will spring him at some point in the proceedings. If that’s what he and his lawyers can figure out, he would keep quiet now and we would get zilch. After all, making a deal isn’t a necessity when you can play the American system with a court-appointed lawyer.

What “smoking gun” are we missing by allowing this to unfold? What plots will go undetected? We don’t know. But the Obami think we get brownie points with someone for doing this. And those who are on the plane targeted by the next terrorist plot that might have been uncovered had Abdulmutallab been interrogated as an enemy combatant — what about them? Not much thought is given to them by Eric Holder and his crew.

The gap between the Obami and the rest of the country on this issue is vast, I would suggest. The average American must think this is insanity. We risk American lives so that terrorists will feel better about our justice system? That’s what the president thinks. That’s what his fellow Democrats think as they enable this policy by funding the Obami’s efforts to relocate and try terrorists in the U.S. – as well as by the appalling lack of Congressional oversight to date.

There is however a “solution” to this divergence between popular and leftist elite opinion: the 2010 elections. This should be a hot topic of debate. And soon enough we’ll find out whether Obama is defending “our” values or rather some misbegotten experiment in radical lawyering.

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Privileged, Indeed

The Obami are pulling out all the stops to protect their social secretary and Chicago pal from further scrutiny about the lapse in security over what is now the most infamous state dinner in recent memory. Didn’t you hear, sniffs, Valerie Jarrett, who doesn’t want her confidante and Chicago pal going anywhere near a congressional hearing: Case closed! Move along. Desiree is not going to testify, the Obami say. What!? Something about the Constitution, you say? Hmm.

Bill Burck and Dan Perino dissect the Obami’s claim that they needn’t provide Desiree Rogers to testify over the party-crashing incident because of the “separation of powers.” That’s “executive privilege,” by the way, but they don’t want to say that because people would laugh. Well, more people would laugh than are already. Rogers is not exactly a close adviser, of course. But no matter:

Lest there be any doubt on this front, the White House made it clear that “staff here don’t go to testify in front of Congress.” There is no qualifier of any sort in that statement. At face value, this is a breathtaking assertion that all White House staff — everyone from the chief of staff to the 22-year-old assistant just out of college — are absolutely immune from appearing before Congress to give testimony. This jaw-dropper makes the prior administration, vilified by so many Democrats in Congress as imperious and dismissive of congressional prerogatives, look positively weak-kneed and lap-doggish.

This is all quite at odds with the Democrats’ past eight years of foot-stomping and insistence that the Bush White House had to provide advisers (real ones, who advised on more than menus and guest lists) for testimony. (“Speaker Pelosi and Chairman Conyers must feel particularly double-crossed because they were the principal sponsors of a lawsuit filed in an effort to compel testimony and documents from Ms. Miers, Mr. Rove, and others concerning the U.S. attorney controversy.”)

Congress may be inclined to let this slide. But they do so at their institutional peril. The Obami are apparently serious, and Congress, unless it wants to set some new precedent, should be wary about letting the White House get away with a stunt like this. “We don’t want to embarrass our Chicago friend” simply isn’t a good enough reason to stiff Congress.

The Obami are pulling out all the stops to protect their social secretary and Chicago pal from further scrutiny about the lapse in security over what is now the most infamous state dinner in recent memory. Didn’t you hear, sniffs, Valerie Jarrett, who doesn’t want her confidante and Chicago pal going anywhere near a congressional hearing: Case closed! Move along. Desiree is not going to testify, the Obami say. What!? Something about the Constitution, you say? Hmm.

Bill Burck and Dan Perino dissect the Obami’s claim that they needn’t provide Desiree Rogers to testify over the party-crashing incident because of the “separation of powers.” That’s “executive privilege,” by the way, but they don’t want to say that because people would laugh. Well, more people would laugh than are already. Rogers is not exactly a close adviser, of course. But no matter:

Lest there be any doubt on this front, the White House made it clear that “staff here don’t go to testify in front of Congress.” There is no qualifier of any sort in that statement. At face value, this is a breathtaking assertion that all White House staff — everyone from the chief of staff to the 22-year-old assistant just out of college — are absolutely immune from appearing before Congress to give testimony. This jaw-dropper makes the prior administration, vilified by so many Democrats in Congress as imperious and dismissive of congressional prerogatives, look positively weak-kneed and lap-doggish.

This is all quite at odds with the Democrats’ past eight years of foot-stomping and insistence that the Bush White House had to provide advisers (real ones, who advised on more than menus and guest lists) for testimony. (“Speaker Pelosi and Chairman Conyers must feel particularly double-crossed because they were the principal sponsors of a lawsuit filed in an effort to compel testimony and documents from Ms. Miers, Mr. Rove, and others concerning the U.S. attorney controversy.”)

Congress may be inclined to let this slide. But they do so at their institutional peril. The Obami are apparently serious, and Congress, unless it wants to set some new precedent, should be wary about letting the White House get away with a stunt like this. “We don’t want to embarrass our Chicago friend” simply isn’t a good enough reason to stiff Congress.

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Flotsam and Jetsam

COMMENTARY contributor Noah Pollak makes the convincing case that Iran and Syria have largely prevailed in using asymmetric warfare with surrogates against Israel: “It allows Iran and Syria to take credit in the region for antagonizing Israel without risking retaliation on their soil; it detaches conflict from regime security, reducing the disincentive for war; and it forces battles into densely-populated civilian areas, undermining the IDF’s military superiority and ensuring civilian destruction which today’s media and NGOs — an increasingly meaningless distinction — blame on Israel, not on the terrorist groups who start the wars.” The solution: take the fight to the source of the problem, using all available tools (“there is no reason why asymmetry cannot be countered with asymmetry, or new diplomatic and economic initiatives pursued”).

Fox News has an ACORN scoop: it seems that in California, one step ahead of the state attorney general’s investigation, the group tried to dump 20,000 documents that “point to illicit relationships between ACORN and a bank and a labor union — as well as confidential information that could put thousands at risk for identity theft.”

Tevi Troy notes the downgrading of the White House Chanukah party.

It’s not really 10.2 percent: “As experts debate the potential speed of the US recovery, one figure looms large but is often overlooked: nearly 1 in 5 Americans is either out of work or under-employed. According to the government’s broadest measure of unemployment, some 17.5 percent are either without a job entirely or underemployed. The so-called U-6 number is at the highest rate since becoming an official labor statistic in 1994.”

If you read nothing else on the KSM trial, read this interview with Bill Burck, former deputy counsel to President George W. Bush, who explains why Holder can’t guarantee a result and why the trial is such a bad idea. A sample: “Attorney General Holder has gone on record that he believes waterboarding is torture; and it is now known that KSM was subject to enhanced interrogation techniques, including repeated use of waterboarding. KSM’s lawyer will almost certainly ask the judge to throw out all the charges against him because he was allegedly tortured. How can the Department of Justice contest that KSM was tortured if the attorney general has gone on record that waterboarding is torture? They can’t.”

The Maryland Federation of College Republicans stand up to their Democratic counterparts, whose campaign director declared that “Israel is oppressing the Palestinian people.”

Kirsten who? “Ten months after Kirsten Gillibrand was appointed to the U.S. Senate by Governor David Paterson, the junior senator from New York has failed to become a household name among registered voters in New York State. 25% of the electorate thinks Gillibrand is doing either an excellent or good job in office, and 12% believes she is performing poorly. Perhaps, though, Gillibrand’s bigger concern is that 24% of the electorate is unsure how to rate her.”

One more time: “Sen. Joseph Lieberman, speaking in that trademark sonorous baritone, utters a simple statement that translates into real trouble for Democratic leaders: ‘I’m going to be stubborn on this.’ Stubborn, he means, in opposing any health-care overhaul that includes a ‘public option,’ or government-run health-insurance plan, as the current bill does. His opposition is strong enough that Mr. Lieberman says he won’t vote to let a bill come to a final vote if a public option is included.”

After spending like drunken sailors on a failed stimulus and a raft of domestic spending, Democrats now want to “pay as we go” — for the Afghanistan war.

Others have noticed that the mammography controversy raises an uncomfortable truth for ObamaCare backers: “The flap over breast cancer screening has provided a fascinating insight into the political future of ObamaCare. Specifically, the political left supports such medical rationing even as it disavows that any such thing is happening. … What’s really going on here is that the left knows its designs will require political rationing of care, but it doesn’t want the public to figure this out until ObamaCare passes. … Americans will simply have to accept that the price of government-run health care in the name of redistributive justice is that patients and their doctors must bow to the superior wisdom of HHS task forces.”

COMMENTARY contributor Noah Pollak makes the convincing case that Iran and Syria have largely prevailed in using asymmetric warfare with surrogates against Israel: “It allows Iran and Syria to take credit in the region for antagonizing Israel without risking retaliation on their soil; it detaches conflict from regime security, reducing the disincentive for war; and it forces battles into densely-populated civilian areas, undermining the IDF’s military superiority and ensuring civilian destruction which today’s media and NGOs — an increasingly meaningless distinction — blame on Israel, not on the terrorist groups who start the wars.” The solution: take the fight to the source of the problem, using all available tools (“there is no reason why asymmetry cannot be countered with asymmetry, or new diplomatic and economic initiatives pursued”).

Fox News has an ACORN scoop: it seems that in California, one step ahead of the state attorney general’s investigation, the group tried to dump 20,000 documents that “point to illicit relationships between ACORN and a bank and a labor union — as well as confidential information that could put thousands at risk for identity theft.”

Tevi Troy notes the downgrading of the White House Chanukah party.

It’s not really 10.2 percent: “As experts debate the potential speed of the US recovery, one figure looms large but is often overlooked: nearly 1 in 5 Americans is either out of work or under-employed. According to the government’s broadest measure of unemployment, some 17.5 percent are either without a job entirely or underemployed. The so-called U-6 number is at the highest rate since becoming an official labor statistic in 1994.”

If you read nothing else on the KSM trial, read this interview with Bill Burck, former deputy counsel to President George W. Bush, who explains why Holder can’t guarantee a result and why the trial is such a bad idea. A sample: “Attorney General Holder has gone on record that he believes waterboarding is torture; and it is now known that KSM was subject to enhanced interrogation techniques, including repeated use of waterboarding. KSM’s lawyer will almost certainly ask the judge to throw out all the charges against him because he was allegedly tortured. How can the Department of Justice contest that KSM was tortured if the attorney general has gone on record that waterboarding is torture? They can’t.”

The Maryland Federation of College Republicans stand up to their Democratic counterparts, whose campaign director declared that “Israel is oppressing the Palestinian people.”

Kirsten who? “Ten months after Kirsten Gillibrand was appointed to the U.S. Senate by Governor David Paterson, the junior senator from New York has failed to become a household name among registered voters in New York State. 25% of the electorate thinks Gillibrand is doing either an excellent or good job in office, and 12% believes she is performing poorly. Perhaps, though, Gillibrand’s bigger concern is that 24% of the electorate is unsure how to rate her.”

One more time: “Sen. Joseph Lieberman, speaking in that trademark sonorous baritone, utters a simple statement that translates into real trouble for Democratic leaders: ‘I’m going to be stubborn on this.’ Stubborn, he means, in opposing any health-care overhaul that includes a ‘public option,’ or government-run health-insurance plan, as the current bill does. His opposition is strong enough that Mr. Lieberman says he won’t vote to let a bill come to a final vote if a public option is included.”

After spending like drunken sailors on a failed stimulus and a raft of domestic spending, Democrats now want to “pay as we go” — for the Afghanistan war.

Others have noticed that the mammography controversy raises an uncomfortable truth for ObamaCare backers: “The flap over breast cancer screening has provided a fascinating insight into the political future of ObamaCare. Specifically, the political left supports such medical rationing even as it disavows that any such thing is happening. … What’s really going on here is that the left knows its designs will require political rationing of care, but it doesn’t want the public to figure this out until ObamaCare passes. … Americans will simply have to accept that the price of government-run health care in the name of redistributive justice is that patients and their doctors must bow to the superior wisdom of HHS task forces.”

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