Commentary Magazine


Topic: important step forward

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.

Read Less

Chuck Schumer Breaks with Obama on Israel

Wow. Yes, Chuck Schumer – who’s angling for Senate majority leader if/when Harry Reid loses in November — has had enough with the president’s Israel-bashing. First on sanctions:

We in the Congress, Senator Lieberman and myself, Senator Bayh, are working up our sanctions bill, which even if the UN sanctions are weak, we could have unilateral sanctions by the United States, for instance, if you cut of gasoline. Iranians do not produce their own gasoline, and by the way the Iranian people are ready to rebel and overthrow this regime, and if we would squeeze them economically that could happen.

But then he goes on a tear when asked why Obama is alienating Israel and American Jews:

[T]his is the question I talked to Rahm Emanuel about, and the President about this week. I told the President, I told Rahm Emanuel and others in the administration that I thought the policy they took to try to bring about negotiations is counter-productive, because when you give the Palestinians hope that the United States will do its negotiating for them, they are not going to sit down and talk. Palestinians don’t really believe in a state of Israel, they, unlike a majority of Israelis, who have come to the conclusion that they can live with a two-state solution to be determined by the parties, the majority of Palestinians are still very reluctant, and they need to be pushed to get there.

If the U.S. says certain things and takes certain stands, the Palestinians say, “Why should we negotiate?” So that’s bad and that should change and we are working on changing it. But the other two are very good, according to both the Israeli government and the Israeli military and the U.S. government. But we should make that known, why don’t they? I asked them to do just that, I said we should make it public because it will, at least, give people who are supportive of Israel, Jew and non-Jew alike, a little bit of solace.

Schumer then suggested that the Syrian engagement gambit had “stopped” (he should check with Hillary on that one) and that we had to apply pressure to Syria. But then he was back to the Palestinian issue:

Let me just finish this dialogue about Israel for a minute. All we have to do is leave things alone, and you might get the Palestinians more willing to sit down and actually discuss peace, because they would see the contrast. When Biden was in Israel and there was this kerfuffle over settlements which is in Israeli Jerusalem 20 minutes from downtown and should never have been an issue to begin with, but they probably shouldn’t have made the announcement when Biden was there. But Israel apologized, and when Biden left, and Biden is the best friend of Israel in the administration, everything was fine.

But then what happened is the next day Hillary Clinton called up Netanyahu and talked very tough to him, and worse they made it pubic through this spokesperson, a guy named Crowley. And Crowley said something I have never heard before, which is, the relationship of Israel and the United States depends on the pace of the negotiations. That is terrible. That is the dagger, because the relationship is much deeper than the disagreements on negotiations, and most Americans—Democrat, Republican, Jew, non-Jew–would feel that. So I called up Rahm Emanuel and I called up the White House and I said, “If you don’t retract that statement you are going to hear me publicly blast you on this.” Of course they did retract it.

Now what’s happened, and many of us are pushing back, some of the Jewish members will be meeting with the President next week or the week after, and we are saying that this has to stop. You have to have, in terms of the negotiations, you have to show Israel that it’s not going to be forced to do things it doesn’t want to do and can’t do. At the same time you have to show the Palestinians that they are not going to get their way by just sitting back and not giving in, and not recognizing that there is a state of Israel. And right now there is a battle going on inside the administration, one side agrees with us, one side doesn’t, and we’re pushing hard to make sure the right side wins, and if not we’ll have to take it to the next step.

That’s simply remarkable, albeit long overdue. It tells me several things. First, Schumer, who is nothing if not politically astute when it comes to New York politics, senses that there is no upside to sticking with the president on this. One wonders how many constituents he’s heard from and who is threatening to cut off the money flow to Democrats.

Second, one suspects that Schumer has gotten nowhere in private and is now forced to unload in public. It seems that while Schumer cares what American Jews think, Obama is unmoved by quiet persuasion.

Third, Schumer and other pro-Israel Democrats now have a dilemma: what do they do when the president refuses to sign on to petroleum sanctions? What do they do when the next round of bullying starts up again? They’ve been painfully mute until now, which has no doubt encouraged the White House. If Schumer is as outraged as he sounded on the radio, this will end.

We can hope this is an important step forward and will be followed by other Democratic lawmakers. Who knows, in a week or so some major Jewish organization might actually pipe up with an equally bracing evaluation of the Obami’s onslaught on the Jewish state.

One aside: Schumer also had this to say about the origin of his name: “It comes from the word shomer, which mean guardian. My ancestors were guardians of the ghetto wall in Chortkov, and I believe Hashem, actually, gave me the name as one of my roles that is very important in the United States Senate to be a shomer, to be a shomer for Israel.” Suffice it to say that if Sarah Palin ever said that God had given a name to her with a mission in mind, the chattering class would go bonkers. But of course, it is perfectly acceptable for liberals to get messages from God without cries of indignation echoing throughout the media. That said, if Schumer takes his name to heart, albeit belatedly, and shows some leadership in gathering other Democrats to his position (that’s what Senate leaders do, after all), there will be reason to celebrate.

Wow. Yes, Chuck Schumer – who’s angling for Senate majority leader if/when Harry Reid loses in November — has had enough with the president’s Israel-bashing. First on sanctions:

We in the Congress, Senator Lieberman and myself, Senator Bayh, are working up our sanctions bill, which even if the UN sanctions are weak, we could have unilateral sanctions by the United States, for instance, if you cut of gasoline. Iranians do not produce their own gasoline, and by the way the Iranian people are ready to rebel and overthrow this regime, and if we would squeeze them economically that could happen.

But then he goes on a tear when asked why Obama is alienating Israel and American Jews:

[T]his is the question I talked to Rahm Emanuel about, and the President about this week. I told the President, I told Rahm Emanuel and others in the administration that I thought the policy they took to try to bring about negotiations is counter-productive, because when you give the Palestinians hope that the United States will do its negotiating for them, they are not going to sit down and talk. Palestinians don’t really believe in a state of Israel, they, unlike a majority of Israelis, who have come to the conclusion that they can live with a two-state solution to be determined by the parties, the majority of Palestinians are still very reluctant, and they need to be pushed to get there.

If the U.S. says certain things and takes certain stands, the Palestinians say, “Why should we negotiate?” So that’s bad and that should change and we are working on changing it. But the other two are very good, according to both the Israeli government and the Israeli military and the U.S. government. But we should make that known, why don’t they? I asked them to do just that, I said we should make it public because it will, at least, give people who are supportive of Israel, Jew and non-Jew alike, a little bit of solace.

Schumer then suggested that the Syrian engagement gambit had “stopped” (he should check with Hillary on that one) and that we had to apply pressure to Syria. But then he was back to the Palestinian issue:

Let me just finish this dialogue about Israel for a minute. All we have to do is leave things alone, and you might get the Palestinians more willing to sit down and actually discuss peace, because they would see the contrast. When Biden was in Israel and there was this kerfuffle over settlements which is in Israeli Jerusalem 20 minutes from downtown and should never have been an issue to begin with, but they probably shouldn’t have made the announcement when Biden was there. But Israel apologized, and when Biden left, and Biden is the best friend of Israel in the administration, everything was fine.

But then what happened is the next day Hillary Clinton called up Netanyahu and talked very tough to him, and worse they made it pubic through this spokesperson, a guy named Crowley. And Crowley said something I have never heard before, which is, the relationship of Israel and the United States depends on the pace of the negotiations. That is terrible. That is the dagger, because the relationship is much deeper than the disagreements on negotiations, and most Americans—Democrat, Republican, Jew, non-Jew–would feel that. So I called up Rahm Emanuel and I called up the White House and I said, “If you don’t retract that statement you are going to hear me publicly blast you on this.” Of course they did retract it.

Now what’s happened, and many of us are pushing back, some of the Jewish members will be meeting with the President next week or the week after, and we are saying that this has to stop. You have to have, in terms of the negotiations, you have to show Israel that it’s not going to be forced to do things it doesn’t want to do and can’t do. At the same time you have to show the Palestinians that they are not going to get their way by just sitting back and not giving in, and not recognizing that there is a state of Israel. And right now there is a battle going on inside the administration, one side agrees with us, one side doesn’t, and we’re pushing hard to make sure the right side wins, and if not we’ll have to take it to the next step.

That’s simply remarkable, albeit long overdue. It tells me several things. First, Schumer, who is nothing if not politically astute when it comes to New York politics, senses that there is no upside to sticking with the president on this. One wonders how many constituents he’s heard from and who is threatening to cut off the money flow to Democrats.

Second, one suspects that Schumer has gotten nowhere in private and is now forced to unload in public. It seems that while Schumer cares what American Jews think, Obama is unmoved by quiet persuasion.

Third, Schumer and other pro-Israel Democrats now have a dilemma: what do they do when the president refuses to sign on to petroleum sanctions? What do they do when the next round of bullying starts up again? They’ve been painfully mute until now, which has no doubt encouraged the White House. If Schumer is as outraged as he sounded on the radio, this will end.

We can hope this is an important step forward and will be followed by other Democratic lawmakers. Who knows, in a week or so some major Jewish organization might actually pipe up with an equally bracing evaluation of the Obami’s onslaught on the Jewish state.

One aside: Schumer also had this to say about the origin of his name: “It comes from the word shomer, which mean guardian. My ancestors were guardians of the ghetto wall in Chortkov, and I believe Hashem, actually, gave me the name as one of my roles that is very important in the United States Senate to be a shomer, to be a shomer for Israel.” Suffice it to say that if Sarah Palin ever said that God had given a name to her with a mission in mind, the chattering class would go bonkers. But of course, it is perfectly acceptable for liberals to get messages from God without cries of indignation echoing throughout the media. That said, if Schumer takes his name to heart, albeit belatedly, and shows some leadership in gathering other Democrats to his position (that’s what Senate leaders do, after all), there will be reason to celebrate.

Read Less




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