Commentary Magazine


Topic: defense counsel

Third Time Is the Charm?

More than a week after the bombing attempt and following two half-hearted press conferences and an ensuing avalanche of criticism, the president in his weekly address acknowledged that this was an al-Qaeda operation:

We know that he traveled to Yemen, a country grappling with crushing poverty and deadly insurgencies.  It appears that he joined an affiliate of al-Qaeda, and that this group–al-Qaeda in the Arabian Peninsula-trained him, equipped him with those explosives and directed him to attack that plane headed for America.

This is not the first time this group has targeted us.  In recent years, they have bombed Yemeni government facilities and Western hotels, restaurants and embassies-including our embassy in 2008, killing one American.  So, as President, I’ve made it a priority to strengthen our partnership with the Yemeni government-training and equipping their security forces, sharing intelligence and working with them to strike al-Qaeda terrorists.

It is not clear why he felt compelled to bring up the issue of poverty. As this report notes, the president ”did not point out that the would-be bomber was from a very wealthy family in Nigeria.” But the president is plainly on the defensive and responding to the substance of his critics’ complaint. He recalled taking his oath of office, asserting: “On that day I also made it very clear-our nation is at war against a far-reaching network of violence and hatred, and that we will do whatever it takes to defeat them and defend our country, even as we uphold the values that have always distinguished America among nations.”

But as with his Oslo speech, which offered more robust language in defense of American interests, this speech then raises the question: why don’t his policies meet his belated and tougher rhetoric? And if we are on war footing, why did it take a week for Obama to even get his rhetoric in order? If Obama intends to demonstrate his resolve and seriousness in fighting a war waged on our civilization, then he might do well to re-evaluate his criminal-justice model (and the legalistic language that infected his initial remarks), which is inappropriate to the task at hand. As Andy McCarthy points out:

The criminal case is complicating the President’s ability to do his jobs as president and commander-in-chief.  This morning, Obama declared flatly that Mutallab conspired with al-Qaeda in a heinous attempted terrorist attack. It was refreshing to hear the president not hedge with “alleged” this and “alleged” that. . . But, of course, defense counsel will now claim the president is hopelessly prejudicing Mutallab’s ability to get a fair trial — in Detroit or anyplace else — by smearing him in the press and eviscerating the presumption of innocence.  . .

The Mutallab case is an unnecessary, insignificant distraction from the real business of protecting the United States. And it is all so unnecessary.  It will be forever until we can have a trial of Mutallab, anyway:  From here on out, everytime something happens in Yemen, Mutallab’s lawyers will try to use it to their litigation advantage, repeating that the president has so tied Mutallab to terrorism in Yemen that there is no prospect of a fair trial. So why not transfer him to military custody as an enemy combatant, detain and interrogate him for as long as it is useful to do so, and then, in a year or three, either charge him with war crimes in a military tribunal or, if you insist, indict him the criminal justice system?

The inherent contradiction remains for Obama: he cannot provide the image of resolute wartime leadership while pursuing a set of policies that undermines our anti-terrorism efforts. The words can change, but it is the mindset and policies that are the root of the problem.

More than a week after the bombing attempt and following two half-hearted press conferences and an ensuing avalanche of criticism, the president in his weekly address acknowledged that this was an al-Qaeda operation:

We know that he traveled to Yemen, a country grappling with crushing poverty and deadly insurgencies.  It appears that he joined an affiliate of al-Qaeda, and that this group–al-Qaeda in the Arabian Peninsula-trained him, equipped him with those explosives and directed him to attack that plane headed for America.

This is not the first time this group has targeted us.  In recent years, they have bombed Yemeni government facilities and Western hotels, restaurants and embassies-including our embassy in 2008, killing one American.  So, as President, I’ve made it a priority to strengthen our partnership with the Yemeni government-training and equipping their security forces, sharing intelligence and working with them to strike al-Qaeda terrorists.

It is not clear why he felt compelled to bring up the issue of poverty. As this report notes, the president ”did not point out that the would-be bomber was from a very wealthy family in Nigeria.” But the president is plainly on the defensive and responding to the substance of his critics’ complaint. He recalled taking his oath of office, asserting: “On that day I also made it very clear-our nation is at war against a far-reaching network of violence and hatred, and that we will do whatever it takes to defeat them and defend our country, even as we uphold the values that have always distinguished America among nations.”

But as with his Oslo speech, which offered more robust language in defense of American interests, this speech then raises the question: why don’t his policies meet his belated and tougher rhetoric? And if we are on war footing, why did it take a week for Obama to even get his rhetoric in order? If Obama intends to demonstrate his resolve and seriousness in fighting a war waged on our civilization, then he might do well to re-evaluate his criminal-justice model (and the legalistic language that infected his initial remarks), which is inappropriate to the task at hand. As Andy McCarthy points out:

The criminal case is complicating the President’s ability to do his jobs as president and commander-in-chief.  This morning, Obama declared flatly that Mutallab conspired with al-Qaeda in a heinous attempted terrorist attack. It was refreshing to hear the president not hedge with “alleged” this and “alleged” that. . . But, of course, defense counsel will now claim the president is hopelessly prejudicing Mutallab’s ability to get a fair trial — in Detroit or anyplace else — by smearing him in the press and eviscerating the presumption of innocence.  . .

The Mutallab case is an unnecessary, insignificant distraction from the real business of protecting the United States. And it is all so unnecessary.  It will be forever until we can have a trial of Mutallab, anyway:  From here on out, everytime something happens in Yemen, Mutallab’s lawyers will try to use it to their litigation advantage, repeating that the president has so tied Mutallab to terrorism in Yemen that there is no prospect of a fair trial. So why not transfer him to military custody as an enemy combatant, detain and interrogate him for as long as it is useful to do so, and then, in a year or three, either charge him with war crimes in a military tribunal or, if you insist, indict him the criminal justice system?

The inherent contradiction remains for Obama: he cannot provide the image of resolute wartime leadership while pursuing a set of policies that undermines our anti-terrorism efforts. The words can change, but it is the mindset and policies that are the root of the problem.

Read Less

What Can Be Done?

As Charles Krauthammer aptly put it, our attorney general is “clueless” on the subject of KSM’s trial in New York. The defense counsel Scott Fenstermaker is warming up, explaining that we’ll hear rebuttals to all the “demonization” of his client that has been going on over the past eight years. So what is to be done?

Congress might try to cut off funds or engage in some jurisdictional court-stripping (although that’s usually a prospective remedy to prevent courts from meddling). Or Obama could just change his mind. Yes, why not? It was, he keeps telling us, Holder’s call, after all. And now, as he sees it all play out, why not simply reverse course? Oh, sure he’ll need an excuse, but just as the Bush administration (actually, at Krauthammer’s clever suggestion) dumped the Harriet Miers Supreme Court nomination over a made-up issue of executive privilege concerning her White House work record, so too there will be plenty of chances to fold up shop if the president is squeamish about simply pulling the plug right now.

The president can blame Greg Graig or Holder, if he must. Obama reversed course on the detainee photos after advice from Justice, so he’s not unaccustomed to the process. Embarrassing? Sure. But if he thinks about what years and years of a show trial will mean, and the impact it will have on his image as commander in chief as the public realizes that this could easily have been avoided, Obama may come to see that a quick dose of embarrassment now is preferable to years of humiliation down the road.

As Charles Krauthammer aptly put it, our attorney general is “clueless” on the subject of KSM’s trial in New York. The defense counsel Scott Fenstermaker is warming up, explaining that we’ll hear rebuttals to all the “demonization” of his client that has been going on over the past eight years. So what is to be done?

Congress might try to cut off funds or engage in some jurisdictional court-stripping (although that’s usually a prospective remedy to prevent courts from meddling). Or Obama could just change his mind. Yes, why not? It was, he keeps telling us, Holder’s call, after all. And now, as he sees it all play out, why not simply reverse course? Oh, sure he’ll need an excuse, but just as the Bush administration (actually, at Krauthammer’s clever suggestion) dumped the Harriet Miers Supreme Court nomination over a made-up issue of executive privilege concerning her White House work record, so too there will be plenty of chances to fold up shop if the president is squeamish about simply pulling the plug right now.

The president can blame Greg Graig or Holder, if he must. Obama reversed course on the detainee photos after advice from Justice, so he’s not unaccustomed to the process. Embarrassing? Sure. But if he thinks about what years and years of a show trial will mean, and the impact it will have on his image as commander in chief as the public realizes that this could easily have been avoided, Obama may come to see that a quick dose of embarrassment now is preferable to years of humiliation down the road.

Read Less