Commentary Magazine


Topic: lawyer

Paterson, Spitzer, Sharpton — An Eternal Golden Braid

New York Governor David Paterson attempted to suppress an investigation into an aide’s alleged beating of said aide’s girlfriend, and lied to an ethics panel about the free tickets he scored to the World Series. In this, he follows Eliot Spitzer, whom he succeeded after Spitzer attempted to convince a banker to contravene federal banking laws (that is actually why he had to resign, not because he hired a prostitute, but since prosecutors decided for unclear reasons not to indict him, that part is forgotten). Paterson, in his sure-to-fail attempt to hold on to power for a few more months, just secured the critical moral and ethical support of none other than Al Sharpton, who is to ethics as oil is to water.

But let’s get back to Spitzer, who has been working to stage a comeback of sorts, writing in Slate and appearing on TV and in general acting like an eminence grise of some kind. The New York Times reports that a New York lawyer of my acquaintance, Lloyd Constantine, has written a book about his experience as one of Spitzer’s lieutenants and confidants called A Journal of the Plague Year. Word about the book and its unvarnished portrait of Spitzer’s decline and fall was greeted violently by Spitzer, who issued the following statement to the Times:

What Mr. Constantine has written is little more than a self-serving and largely inaccurate interpretation of events mixed with unfounded speculation. That such a close adviser and confidant of my family and member of my administration would choose to write such a book is a fundamental breach of trust.

Let’s not mince words here. Eliot Spitzer has a personality disorder. Lloyd Constantine is a very, very rich man, an anti-trust lawyer who secured a massive judgment in a case a few years ago against Visa and Mastercard that netted him, personally, in excess of $100 million. He didn’t need to write a book for money, and for that matter, he didn’t need to shlep up to Albany to help his old friend Spitzer out when Eliot became governor. The “fundamental breach of trust” here was Spitzer’s, not Constantine’s. Spitzer is the one who made a mockery out of his governorship, who brought shame on everyone who ever worked for him or gave him money or voted for him.

His breathtakingly self-righteous response to the fact that someone has had the nerve to write a book about the horrific experience of serving as Spitzer’s underling reveals that his troubles have taught Spitzer nothing and improved him not a whit. Constantine’s flaw was not in writing about Spitzer after the fact, but in failing to see before the fact Spitzer’s disgusting conduct in the years before he ran for governor — using his powers as the state’s attorney general in inappropriate ways and, when criticized for doing so, threatening his critics with ruination and destruction for having the temerity to cross him — offered every indication of the genuinely bad character that would be revealed during his disastrous and blessedly brief tenure. And that he is still revealing now. And that his choice of David Paterson as running mate revealed as well. And that Paterson’s scurrying behind the legs of Al Sharpton reveals about him.

New York Governor David Paterson attempted to suppress an investigation into an aide’s alleged beating of said aide’s girlfriend, and lied to an ethics panel about the free tickets he scored to the World Series. In this, he follows Eliot Spitzer, whom he succeeded after Spitzer attempted to convince a banker to contravene federal banking laws (that is actually why he had to resign, not because he hired a prostitute, but since prosecutors decided for unclear reasons not to indict him, that part is forgotten). Paterson, in his sure-to-fail attempt to hold on to power for a few more months, just secured the critical moral and ethical support of none other than Al Sharpton, who is to ethics as oil is to water.

But let’s get back to Spitzer, who has been working to stage a comeback of sorts, writing in Slate and appearing on TV and in general acting like an eminence grise of some kind. The New York Times reports that a New York lawyer of my acquaintance, Lloyd Constantine, has written a book about his experience as one of Spitzer’s lieutenants and confidants called A Journal of the Plague Year. Word about the book and its unvarnished portrait of Spitzer’s decline and fall was greeted violently by Spitzer, who issued the following statement to the Times:

What Mr. Constantine has written is little more than a self-serving and largely inaccurate interpretation of events mixed with unfounded speculation. That such a close adviser and confidant of my family and member of my administration would choose to write such a book is a fundamental breach of trust.

Let’s not mince words here. Eliot Spitzer has a personality disorder. Lloyd Constantine is a very, very rich man, an anti-trust lawyer who secured a massive judgment in a case a few years ago against Visa and Mastercard that netted him, personally, in excess of $100 million. He didn’t need to write a book for money, and for that matter, he didn’t need to shlep up to Albany to help his old friend Spitzer out when Eliot became governor. The “fundamental breach of trust” here was Spitzer’s, not Constantine’s. Spitzer is the one who made a mockery out of his governorship, who brought shame on everyone who ever worked for him or gave him money or voted for him.

His breathtakingly self-righteous response to the fact that someone has had the nerve to write a book about the horrific experience of serving as Spitzer’s underling reveals that his troubles have taught Spitzer nothing and improved him not a whit. Constantine’s flaw was not in writing about Spitzer after the fact, but in failing to see before the fact Spitzer’s disgusting conduct in the years before he ran for governor — using his powers as the state’s attorney general in inappropriate ways and, when criticized for doing so, threatening his critics with ruination and destruction for having the temerity to cross him — offered every indication of the genuinely bad character that would be revealed during his disastrous and blessedly brief tenure. And that he is still revealing now. And that his choice of David Paterson as running mate revealed as well. And that Paterson’s scurrying behind the legs of Al Sharpton reveals about him.

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Re: Gartenstein-Ross Defends Rashad Hussain

Hussain’s comment was not an isolated one. Josh Gerstein reports on the recording of the event that Hussain has tried to conceal from view:

Hussain refers to some provisions of the Patriot Act as “horrible” and called “dangerous” an aspect of that law that allows intelligence-related surveillance to be used in criminal cases. Most lawmakers, including many Democrats critical of the Patriot Act, have said the provision has proved valuable, because it removed a wall that made it difficult for those pursuing investigations of international terror or spying operations to share information with criminal investigators. Hussain did express support for other aspects of the law, including a provision permitting so-called roving wiretaps.

Hussain’s position seems to be in direct conflict with the current administration, but quite in tune with the grievance-mongering lobby of CAIR and other groups. But that is not all. In his speech, Hussain cited chapter and verse on the supposed persecution of Muslims:

— The court martial of Capt. James Yee, a Guantanamo chaplain initially suspected of treason and later charged with adultery. All charges were eventually dropped.

— The case of Jose Padilla, who was held without charge for more than three years as an enemy combatant on suspicions of trying to detonate a radiation-laced “dirty bomb” in the U.S. In 2006, more than a year after Hussain spoke, Padilla was charged in a terrorist plot unrelated to the dirty bomb allegations. He was convicted by a jury in 2007 and sentenced to 17 years in prison.

— The imprisonment of Yaser Hamdi, who was captured in Afghanistan, held as an enemy combatant and released to Saudi Arabia weeks after Hussain spoke.

— The prosecution of an imam and a pizzeria owner in Albany, N.Y., for conspiring with an informant in a fictitious plot to use a missile launcher to attack a Pakistani diplomat. The men were convicted in 2006 and sentenced to 15 years in prison, though their lawyers claimed the pair were entrapped.

— The prosecution of a Somali man, Nuradin Abdi, in 2004 for plotting to blow up a shopping mall in Columbus, Ohio. He pled guilty in 2007 to conspiring to support terrorism and was sentenced to 10 years in prison.

— The imprisonment of an Oregon lawyer, Brandon Mayfield, who was jailed for more than two weeks in 2004 as a material witness on suspicion of involvement in the Madrid train bombings that year. He was never charged with a crime, received an apology from the FBI, which said it misidentified his fingerprints, and brought a lawsuit that led to a reported $2 million settlement from the government in 2006.

— The prosecution of four men as alleged members of a Detroit-based Al Qaeda “sleeper cell” plotting an attack. Two of the men were convicted on terror charges in 2003 but the convictions were thrown out at the government’s request after evidence emerged of prosecutorial misconduct and an unreliable informant. The prosecutor was charged criminally with concealing exculpatory evidence but later acquitted.

Hussain went on to tell the audience at the event, held roughly two months before the 2004 election, that electing Sen. John Kerry (D-Mass.) as president could stem the tide of such cases.

This kind of rhetoric may get cheers from the Left and from CAIR but is not, even for this administration, remotely acceptable. The Obami have pointedly refused to stick up for Hussain since Friday’s revelation. At this point, I suspect they would rather have someone else in that role – someone who does not see behind every legitimate effort to defend America from Islamic fascist the specter of anti-Muslim discrimination.

Hussain’s comment was not an isolated one. Josh Gerstein reports on the recording of the event that Hussain has tried to conceal from view:

Hussain refers to some provisions of the Patriot Act as “horrible” and called “dangerous” an aspect of that law that allows intelligence-related surveillance to be used in criminal cases. Most lawmakers, including many Democrats critical of the Patriot Act, have said the provision has proved valuable, because it removed a wall that made it difficult for those pursuing investigations of international terror or spying operations to share information with criminal investigators. Hussain did express support for other aspects of the law, including a provision permitting so-called roving wiretaps.

Hussain’s position seems to be in direct conflict with the current administration, but quite in tune with the grievance-mongering lobby of CAIR and other groups. But that is not all. In his speech, Hussain cited chapter and verse on the supposed persecution of Muslims:

— The court martial of Capt. James Yee, a Guantanamo chaplain initially suspected of treason and later charged with adultery. All charges were eventually dropped.

— The case of Jose Padilla, who was held without charge for more than three years as an enemy combatant on suspicions of trying to detonate a radiation-laced “dirty bomb” in the U.S. In 2006, more than a year after Hussain spoke, Padilla was charged in a terrorist plot unrelated to the dirty bomb allegations. He was convicted by a jury in 2007 and sentenced to 17 years in prison.

— The imprisonment of Yaser Hamdi, who was captured in Afghanistan, held as an enemy combatant and released to Saudi Arabia weeks after Hussain spoke.

— The prosecution of an imam and a pizzeria owner in Albany, N.Y., for conspiring with an informant in a fictitious plot to use a missile launcher to attack a Pakistani diplomat. The men were convicted in 2006 and sentenced to 15 years in prison, though their lawyers claimed the pair were entrapped.

— The prosecution of a Somali man, Nuradin Abdi, in 2004 for plotting to blow up a shopping mall in Columbus, Ohio. He pled guilty in 2007 to conspiring to support terrorism and was sentenced to 10 years in prison.

— The imprisonment of an Oregon lawyer, Brandon Mayfield, who was jailed for more than two weeks in 2004 as a material witness on suspicion of involvement in the Madrid train bombings that year. He was never charged with a crime, received an apology from the FBI, which said it misidentified his fingerprints, and brought a lawsuit that led to a reported $2 million settlement from the government in 2006.

— The prosecution of four men as alleged members of a Detroit-based Al Qaeda “sleeper cell” plotting an attack. Two of the men were convicted on terror charges in 2003 but the convictions were thrown out at the government’s request after evidence emerged of prosecutorial misconduct and an unreliable informant. The prosecutor was charged criminally with concealing exculpatory evidence but later acquitted.

Hussain went on to tell the audience at the event, held roughly two months before the 2004 election, that electing Sen. John Kerry (D-Mass.) as president could stem the tide of such cases.

This kind of rhetoric may get cheers from the Left and from CAIR but is not, even for this administration, remotely acceptable. The Obami have pointedly refused to stick up for Hussain since Friday’s revelation. At this point, I suspect they would rather have someone else in that role – someone who does not see behind every legitimate effort to defend America from Islamic fascist the specter of anti-Muslim discrimination.

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Yoo and Bybee Cleared, Justice Department’s Shoddy Investigation Exposed

The Justice Department has finally closed a sorry chapter in its history — the attempt to criminalize the work of Department lawyers who rendered legal judgment on the use of enhanced interrogation techniques in the wake of the worst terrorist attack in American history. The Office of Professional Responsibility, as the Washington Post report notes, had doggedly pursued John Yoo and Jay Bybee, who as Justice Department lawyers authored memos providing advice and direction on enhanced interrrogation methods including waterboarding. In a Friday information dump (which tells you it does not aid the cause of the administration and those seeking Yoo’s and Bybee’s punishment), we got a glimpse at two drafts of OPR’s report, its final report, and then the recommendation of David Margolis, a career lawyer and Associate Deputy Attorney General.

Margolis’s report is 69 pages long. Margolis essentially shreds the work of OPR, finding no basis for a referral of professional misconduct for either lawyer. It is noteworthy that all throughout, Margolis adopts many of the criticisms of OPR’s work that outgoing Attorney General Michael Mukasey and his deputy Mark Filip rendered before leaving office at the end of the Bush administration.

At times the work of OPR itself seems to have violated the professional standards it was charged with enforcing. Sloppiness abounds. Margolis finds, for example, that OPR applied the wrong legal standard, the “preponderance of evidence” rather than the more stringent clear and convincing evidence” standard that state bar proceedings would utilize. (p. 11) Margolis also concludes that OPR’s findings ”do not identify violation of a specific bar rule.” ( p. 12) Margolis further notes that OPR’s analysis and legal standard shifted from draft to draft. (pp.13, 15-16)

Margolis explains that OPR was counseled to consider “the conduct of Yoo and Bybee in light of circumstances that then existed. Interestingly, Margolis reveals that OPR was told to consider that Yoo and Bybee rendered advice when “American lives were particularly at risk at the time.” (p. 16) OPR didn’t do so. Bybee’s successor assistant attorney Jack Goldsmith, who withdrew one of the memos at issue and was subsequently critical of Bush era interrogation polices, made an unsolicited submission urging that OPR should be ”exercis[ing] great caution when assessing the professional responsibility of executive branch attorneys who act in time of national security crisis. Any standard that would have landed Robert Jackson [famed Nuremberg prosecutor and Supreme Court Justice] in trouble cannot be the right standard.” (pp. 19-20)

Margolis then goes methodically through the various legal work of Yoo and Bybee that OPR had found as the basis for professional misconduct. (pp. 21-64). At times Margolis found that OPR simply substituted its own judgment for that of Yoo and Bybee. (p.40) On other points Margolis found the analysis of Yoo and Bybee “debatable” (p. 64) and on some points he found the analysis flawed. But in no instance did he find they had violated their professional obligations. As to Bybee: “I conclude the preponderance of evidence does not support a finding that he knowlingly or recklessly provided incorrect advice or that he exercised bad faith.” (p. 64) OPR concluded that Yoo engaged in intentional misconduct. Again, Margolis concludes otherwise. (pp. 65-67). He notes that Yoo consulted in good faith with a criminal law expert in the Department, John Philbin. He criticizes what he calls Yoo’s “own extreme, albeit sincerely held, views of executive power,” but finds he did not “knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his action.” (p. 67)

The bottom line: Margolis finds the work of Yoo and Bybee “contained some significant flaws,” but that “the number and significance of them can now be debated.” (p. 68) What is clear is that there is no basis — and never was — for stripping these lawyers of their professional licenses, let alone criminally prosecuting them as many on the Left demanded. What is equally clear is that the work of OPR was shoddy, itself suspect, and ultimately rejected on many of the same grounds that Mukasey, Filip, Yoo, and Bybee raised — after years of inquiry and after certainly imposing much emotional and financial burden on Yoo and Bybee.

House Judiciary Chairman John Conyers is furious that Yoo and Bybee are not to be strung up. The real question, however, is why it took this long to clear the two lawyers and why OPR should have been permitted to flail around for years, putting at risk the professional reputations and savings of lawyers whose legal prowess fair exceeded theirs. It seems as though when counting up the “significant” flaws in legal work, OPR “wins” hands down. Read More

The Justice Department has finally closed a sorry chapter in its history — the attempt to criminalize the work of Department lawyers who rendered legal judgment on the use of enhanced interrogation techniques in the wake of the worst terrorist attack in American history. The Office of Professional Responsibility, as the Washington Post report notes, had doggedly pursued John Yoo and Jay Bybee, who as Justice Department lawyers authored memos providing advice and direction on enhanced interrrogation methods including waterboarding. In a Friday information dump (which tells you it does not aid the cause of the administration and those seeking Yoo’s and Bybee’s punishment), we got a glimpse at two drafts of OPR’s report, its final report, and then the recommendation of David Margolis, a career lawyer and Associate Deputy Attorney General.

Margolis’s report is 69 pages long. Margolis essentially shreds the work of OPR, finding no basis for a referral of professional misconduct for either lawyer. It is noteworthy that all throughout, Margolis adopts many of the criticisms of OPR’s work that outgoing Attorney General Michael Mukasey and his deputy Mark Filip rendered before leaving office at the end of the Bush administration.

At times the work of OPR itself seems to have violated the professional standards it was charged with enforcing. Sloppiness abounds. Margolis finds, for example, that OPR applied the wrong legal standard, the “preponderance of evidence” rather than the more stringent clear and convincing evidence” standard that state bar proceedings would utilize. (p. 11) Margolis also concludes that OPR’s findings ”do not identify violation of a specific bar rule.” ( p. 12) Margolis further notes that OPR’s analysis and legal standard shifted from draft to draft. (pp.13, 15-16)

Margolis explains that OPR was counseled to consider “the conduct of Yoo and Bybee in light of circumstances that then existed. Interestingly, Margolis reveals that OPR was told to consider that Yoo and Bybee rendered advice when “American lives were particularly at risk at the time.” (p. 16) OPR didn’t do so. Bybee’s successor assistant attorney Jack Goldsmith, who withdrew one of the memos at issue and was subsequently critical of Bush era interrogation polices, made an unsolicited submission urging that OPR should be ”exercis[ing] great caution when assessing the professional responsibility of executive branch attorneys who act in time of national security crisis. Any standard that would have landed Robert Jackson [famed Nuremberg prosecutor and Supreme Court Justice] in trouble cannot be the right standard.” (pp. 19-20)

Margolis then goes methodically through the various legal work of Yoo and Bybee that OPR had found as the basis for professional misconduct. (pp. 21-64). At times Margolis found that OPR simply substituted its own judgment for that of Yoo and Bybee. (p.40) On other points Margolis found the analysis of Yoo and Bybee “debatable” (p. 64) and on some points he found the analysis flawed. But in no instance did he find they had violated their professional obligations. As to Bybee: “I conclude the preponderance of evidence does not support a finding that he knowlingly or recklessly provided incorrect advice or that he exercised bad faith.” (p. 64) OPR concluded that Yoo engaged in intentional misconduct. Again, Margolis concludes otherwise. (pp. 65-67). He notes that Yoo consulted in good faith with a criminal law expert in the Department, John Philbin. He criticizes what he calls Yoo’s “own extreme, albeit sincerely held, views of executive power,” but finds he did not “knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his action.” (p. 67)

The bottom line: Margolis finds the work of Yoo and Bybee “contained some significant flaws,” but that “the number and significance of them can now be debated.” (p. 68) What is clear is that there is no basis — and never was — for stripping these lawyers of their professional licenses, let alone criminally prosecuting them as many on the Left demanded. What is equally clear is that the work of OPR was shoddy, itself suspect, and ultimately rejected on many of the same grounds that Mukasey, Filip, Yoo, and Bybee raised — after years of inquiry and after certainly imposing much emotional and financial burden on Yoo and Bybee.

House Judiciary Chairman John Conyers is furious that Yoo and Bybee are not to be strung up. The real question, however, is why it took this long to clear the two lawyers and why OPR should have been permitted to flail around for years, putting at risk the professional reputations and savings of lawyers whose legal prowess fair exceeded theirs. It seems as though when counting up the “significant” flaws in legal work, OPR “wins” hands down.

UPDATE: Yoo’s attorney has released a statement. It concludes: “OPR’s work in this matter was shoddy and biased. The only thing that warrants an ethical investigation out of this entire sorry business is the number of malicious allegations against Professor Yoo and Judge Bybee that leaked out of the Department during the last year. It is high time for Attorney General Holder to show that these leaks were not authorized or encouraged — for base partisan purposes — at the highest levels of his department. Mr. Holder can do so by identifying the culprits and referring them for prosecution or bar discipline, as appropriate.”

UPDATE II: Bybee’s attorney has released a statement as well: “After an investigation spanning more than five years, the U.S. Department of Justice has concluded that Judge Jay S. Bybee acted in good faith and did not engage in ethical or professional misconduct during his service in the Department’s Office of Legal Counsel.” The Department has also determined that the matter does not warrant further proceedings or referral to the District of Columbia Bar. Maureen E. Mahoney, Judge Bybee’s attorney, stated that “The Department correctly rejected all claims of ethical or professional misconduct by Judge Bybee. While this vindication was many years in the making, we are pleased that the matter has now been resolved in his favor. No public servant should have to endure the type of relentless, misinformed attacks that have been directed at Judge Bybee. We can only hope that the Department’s decision will establish once and for all that dedicated public officials may have honest disagreements on difficult matters of legal judgment without violating ethical standards.”

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Liberal Legal Pundit Behaving Badly?

It’s not quite John Edwards territory, but it’s close. The New York Daily News (h/t Glenn Reynolds) reports:

One of the media elite’s most whispered-about scandals went public Wednesday when married CNN correspondent Jeffrey Toobin squared off with a woman who says he’s the father of her baby. Yale-educated lawyer Casey Greenfield — the daughter of eminent CBS News analyst Jeff Greenfield — had a chilly faceoff with Toobin in Manhattan Family Court. … Toobin, who glumly sat several rows away from Casey Greenfield before the hearing, is said to have privately admitted to fathering the child, believed to have been born last summer, sources said. A friend of Greenfield’s said the outspoken Toobin has resisted putting his name on the infant’s birth certificate and hasn’t given his former lover the child support she’s requested.

(Toobin is married to his “college sweetheart,” we are told, and has two teenage daughters.) Well this is a little embarrassing for someone who opines on others’ legal obligations.

And then there is the deliciously revealing suggestion (“One of  the media elite’s most whispered-about scandals”) that the media, again, were not reporting a sex scandal that the media would rather not report on. Is this a protect-their-own racket or just the run-of-the-mill “give liberals a break” rule? Hard to say. I’m sure the Gray Lady’s Clark Hoyt and the rest of the mainstream media ombudspeople will get on it right away. Because, after all, they have no problem reporting on Republican sex scandals, no matter how sketchy the sourcing.

It’s not quite John Edwards territory, but it’s close. The New York Daily News (h/t Glenn Reynolds) reports:

One of the media elite’s most whispered-about scandals went public Wednesday when married CNN correspondent Jeffrey Toobin squared off with a woman who says he’s the father of her baby. Yale-educated lawyer Casey Greenfield — the daughter of eminent CBS News analyst Jeff Greenfield — had a chilly faceoff with Toobin in Manhattan Family Court. … Toobin, who glumly sat several rows away from Casey Greenfield before the hearing, is said to have privately admitted to fathering the child, believed to have been born last summer, sources said. A friend of Greenfield’s said the outspoken Toobin has resisted putting his name on the infant’s birth certificate and hasn’t given his former lover the child support she’s requested.

(Toobin is married to his “college sweetheart,” we are told, and has two teenage daughters.) Well this is a little embarrassing for someone who opines on others’ legal obligations.

And then there is the deliciously revealing suggestion (“One of  the media elite’s most whispered-about scandals”) that the media, again, were not reporting a sex scandal that the media would rather not report on. Is this a protect-their-own racket or just the run-of-the-mill “give liberals a break” rule? Hard to say. I’m sure the Gray Lady’s Clark Hoyt and the rest of the mainstream media ombudspeople will get on it right away. Because, after all, they have no problem reporting on Republican sex scandals, no matter how sketchy the sourcing.

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Holder’s Just a Political Dunce, You See

As the Obama anti-terrorism approach unwinds and the handiwork of Eric Holder has proved to be politically untenable and substantively unworkable, there is certainly reason to think Eric Holder’s days are numbered. His decisions are the subject of bipartisan criticism, and White House aides are scrambling to separate themselves from the KSM and other ill-fated decisions, making clear they had nothing to do with these calls.

Along comes a report from the New York Times that confirms the degree to which Holder has become a liability. (“Mr. Emanuel and others also worried that political fights over national security issues could hamper progress on the administration’s fundamental goals, like overhauling health care, and seemed to lack confidence in Mr. Holder as an administration spokesman on the volatile issue of terrorism detainees.”) It is so bad, and his performance so tone-deaf, that the White House now insists that they “proposed installing a minder alongside Mr. Holder to prevent further gaffes — someone with better ‘political antennae,’ as one administration official put it.” The report explains:

Now Mr. Holder has switched from resisting what he had considered encroachment by White House political officials to seeking their guidance. Two weeks ago, he met with advisers there to discuss how to unite against common foes. They agreed to allow Mr. Holder, who has not appeared on a Sunday talk show since entering office, to speak out more; he agreed to let them help hone his message.

The political attacks over terrorism cases were “starting to constrain my ability to function as attorney general,” he said in an interview last week. “I have to do a better job in explaining the decisions that I have made,” Mr. Holder also said, adding, “I have to be more forceful in advocating for why I believe these are trials that should be held on the civilian side.”

All of this is a bit disingenuous, if not downright silly. Holder is painted as such a by-the-book and “on the merits” lawyer that, by gosh, he just didn’t get the politics right. But in fact, his legal defense of Obama policies has been slipshod and the underlying decisions have been deeply flawed and ill-conceived. But I suppose it sounds better to say he’s just a political neophyte than to say he’s a sloppy lawyer or that his decision-making is in thrall to a far-Left agenda (which neatly coincides with the views of lawyers with whom he’s surrounded himself who used to be on the other side, representing terrorists).

Moreover, it is strange indeed for the White House to be bragging about its political handling of  the attorney general. What happened to the “Look, no hands!” denials of political interference and the pledges that Holder was to depoliticize the Department of Justice? Now they not only concede but take pride in bossing around the attorney general, who after all was carrying out the president’s own wishes to adopt a criminal-justice model for fighting terrorism.

In between the self-serving spin and the modified, limited hangout (i.e., Holder is a political dolt but we’re keeping him anyway) is a telling concession that none of the not-Bush terror policies are working out as planned. Perhaps rather than try to excuse the attorney general’s performance they should can him and start over with policies that have broad support and make sense in fighting Islamic fundamentalists. Now there’s an idea.

As the Obama anti-terrorism approach unwinds and the handiwork of Eric Holder has proved to be politically untenable and substantively unworkable, there is certainly reason to think Eric Holder’s days are numbered. His decisions are the subject of bipartisan criticism, and White House aides are scrambling to separate themselves from the KSM and other ill-fated decisions, making clear they had nothing to do with these calls.

Along comes a report from the New York Times that confirms the degree to which Holder has become a liability. (“Mr. Emanuel and others also worried that political fights over national security issues could hamper progress on the administration’s fundamental goals, like overhauling health care, and seemed to lack confidence in Mr. Holder as an administration spokesman on the volatile issue of terrorism detainees.”) It is so bad, and his performance so tone-deaf, that the White House now insists that they “proposed installing a minder alongside Mr. Holder to prevent further gaffes — someone with better ‘political antennae,’ as one administration official put it.” The report explains:

Now Mr. Holder has switched from resisting what he had considered encroachment by White House political officials to seeking their guidance. Two weeks ago, he met with advisers there to discuss how to unite against common foes. They agreed to allow Mr. Holder, who has not appeared on a Sunday talk show since entering office, to speak out more; he agreed to let them help hone his message.

The political attacks over terrorism cases were “starting to constrain my ability to function as attorney general,” he said in an interview last week. “I have to do a better job in explaining the decisions that I have made,” Mr. Holder also said, adding, “I have to be more forceful in advocating for why I believe these are trials that should be held on the civilian side.”

All of this is a bit disingenuous, if not downright silly. Holder is painted as such a by-the-book and “on the merits” lawyer that, by gosh, he just didn’t get the politics right. But in fact, his legal defense of Obama policies has been slipshod and the underlying decisions have been deeply flawed and ill-conceived. But I suppose it sounds better to say he’s just a political neophyte than to say he’s a sloppy lawyer or that his decision-making is in thrall to a far-Left agenda (which neatly coincides with the views of lawyers with whom he’s surrounded himself who used to be on the other side, representing terrorists).

Moreover, it is strange indeed for the White House to be bragging about its political handling of  the attorney general. What happened to the “Look, no hands!” denials of political interference and the pledges that Holder was to depoliticize the Department of Justice? Now they not only concede but take pride in bossing around the attorney general, who after all was carrying out the president’s own wishes to adopt a criminal-justice model for fighting terrorism.

In between the self-serving spin and the modified, limited hangout (i.e., Holder is a political dolt but we’re keeping him anyway) is a telling concession that none of the not-Bush terror policies are working out as planned. Perhaps rather than try to excuse the attorney general’s performance they should can him and start over with policies that have broad support and make sense in fighting Islamic fundamentalists. Now there’s an idea.

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David Brooks Doesn’t Buy It Either

This was the reaction to Joe Biden’s defense of the Obami anti-terrorism approach on the Sunday talk shows:

The KSM trial has become a total mess. What Joe Biden said today on the program doesn’t pass the laugh test. The idea that we’re going to try a guy, not acquit him, apparently, if, beforehand, are we going to make Dick Cheney the foreman of the jury? I mean, how do we know that? …  And then the second thing I think Cheney’s actually right about is Mirandizing. We, if we–say we’d captured the 9/11 guys on September 10th, or one of them, should we have read that guy his rights and given him a lawyer? No. We should have tried to get some intelligence out of the guy.

Cliff May? Andy McCarthy? Nope. David Brooks. And yes, when the Obami can’t even pass the “laugh test” with a moderate, sympathetic pundit who vouched for Candidate Obama and has dutifully reported the Obama’s best arguments, then you know the gig is about up. And Brooks didn’t stop there:

Eric Holder, the attorney general, took this decision without consulting the president, without consulting the national security apparatus, did it on his own. And slowly, and now quickly, the White House is pulling that back. And so they are going to try to, I think, take–well, take it out of New York. But they’re not there yet. The idea that we can try someone and, and guarantee a conviction and guarantee they won’t walk free, I mean, this, this is a betrayal of our values. I mean, what–the, the correct charges against Gitmo were that it’s a betrayal of our values. We’re fighting our values in a way that–we’re fighting this war in a way that betrays who we really are. And this is the essence of that. What Joe Biden said on the program today will be laughed at around the Arab world.

If Brooks can spot the not-Bush anti-terrorism policy collapsing in on itself, then Biden’s full-court press on the Sunday talk shows was all the more troubling. No one inside the White House can grasp how implausible the spin is? No one sees that a walk-back will be required — and be all the more embarrassing when preceded by another round of “how dare Dick Cheney say those awful things about us”?

Each day spent trying to beat back bipartisan opposition to their not Bush policies is a lost one for the White House, confirming that they are isolated, out of touch with our values (yes, irony alert), and not yet serious about fighting enemies who regard our foolishness as weakness. The president has not distinguished himself by decisiveness, but that’s certainly what he could use: a swift and decisive break from a year-long experience in reviving a failed criminal-justice model. The longer this goes on, the more of a mess it becomes and the harder it will be to unwind the self-inflicted damage (both from an intelligence and a political standpoint). So far, however, there is no a clear signal that Obama recognizes that such a firm, emphatic course change is required. He and the country will be the worse for it.

This was the reaction to Joe Biden’s defense of the Obami anti-terrorism approach on the Sunday talk shows:

The KSM trial has become a total mess. What Joe Biden said today on the program doesn’t pass the laugh test. The idea that we’re going to try a guy, not acquit him, apparently, if, beforehand, are we going to make Dick Cheney the foreman of the jury? I mean, how do we know that? …  And then the second thing I think Cheney’s actually right about is Mirandizing. We, if we–say we’d captured the 9/11 guys on September 10th, or one of them, should we have read that guy his rights and given him a lawyer? No. We should have tried to get some intelligence out of the guy.

Cliff May? Andy McCarthy? Nope. David Brooks. And yes, when the Obami can’t even pass the “laugh test” with a moderate, sympathetic pundit who vouched for Candidate Obama and has dutifully reported the Obama’s best arguments, then you know the gig is about up. And Brooks didn’t stop there:

Eric Holder, the attorney general, took this decision without consulting the president, without consulting the national security apparatus, did it on his own. And slowly, and now quickly, the White House is pulling that back. And so they are going to try to, I think, take–well, take it out of New York. But they’re not there yet. The idea that we can try someone and, and guarantee a conviction and guarantee they won’t walk free, I mean, this, this is a betrayal of our values. I mean, what–the, the correct charges against Gitmo were that it’s a betrayal of our values. We’re fighting our values in a way that–we’re fighting this war in a way that betrays who we really are. And this is the essence of that. What Joe Biden said on the program today will be laughed at around the Arab world.

If Brooks can spot the not-Bush anti-terrorism policy collapsing in on itself, then Biden’s full-court press on the Sunday talk shows was all the more troubling. No one inside the White House can grasp how implausible the spin is? No one sees that a walk-back will be required — and be all the more embarrassing when preceded by another round of “how dare Dick Cheney say those awful things about us”?

Each day spent trying to beat back bipartisan opposition to their not Bush policies is a lost one for the White House, confirming that they are isolated, out of touch with our values (yes, irony alert), and not yet serious about fighting enemies who regard our foolishness as weakness. The president has not distinguished himself by decisiveness, but that’s certainly what he could use: a swift and decisive break from a year-long experience in reviving a failed criminal-justice model. The longer this goes on, the more of a mess it becomes and the harder it will be to unwind the self-inflicted damage (both from an intelligence and a political standpoint). So far, however, there is no a clear signal that Obama recognizes that such a firm, emphatic course change is required. He and the country will be the worse for it.

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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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Fox Uncovers Anti-Tea-Party Slush-Fund Scam

Fox News persists on covering news others don’t. It seems the “not really a news outlet” has uncovered  a major scam by the Vast Leftwing Conspiracy:

A seemingly grassroots organization that’s mounted an online campaign to counter the tea party movement is actually the front end of an elaborate scheme that funnels funds — including sizable labor union contributions — through the offices of a prominent Democratic party lawyer. A Web site popped up in January dedicated to preventing the tea party’s “radical” and “dangerous” ideas from “gaining legislative traction,” targeting GOP candidates in Illinois for the firing squad.

But how does this happen? It apparently is legal, albeit deceitful:

Here’s how it works: What appears like a local groundswell is in fact the creation of two men — Craig Varoga and George Rakis, Democratic Party strategists who have set up a number of so-called 527 groups, the non-profit election organizations that hammer on contentious issues (think Swift Boats, for example).

Varoga and Rakis keep a central mailing address in Washington, pulling in soft money contributions from unions and other well-padded sources to engage in what amounts to a legal laundering system. The money — tens of millions of dollars — gets circulated around to different states by the 527s, which pay for TV ads, Internet campaigns and lobbyist salaries, all while keeping the hands of the unions clean — for the most part.

Fox has the list of donors, which comprises a set of interlocking slush-type funds that pay for the anti–Tea Party campaign. The largest of these is the American Federation of State, County and Municipal Employees (AFSCME,) which has kicked in a total of $9.9M in a single year to two funds that provide the cash for the non-grassroots movement. Yes — government workers’ money is being used to fend off Tea Party protesters.–

It seems that the Tea Party movement, once defamed and derided, now poses a threat to the liberal establishment, so much so that they are collecting millions to undermine it. Conservatives shouldn’t object to political speech — which this is. But there is certainly grounds to object to the chicanery, the lack of transparency, and the pretense that the opponents of the Tea Parties are themselves grassroots activists. They aren’t — this is Big Labor and assorted liberal-interest groups once again doing the bidding of the Democratic party. And if not for Fox, no one would be any the wiser.

Fox News persists on covering news others don’t. It seems the “not really a news outlet” has uncovered  a major scam by the Vast Leftwing Conspiracy:

A seemingly grassroots organization that’s mounted an online campaign to counter the tea party movement is actually the front end of an elaborate scheme that funnels funds — including sizable labor union contributions — through the offices of a prominent Democratic party lawyer. A Web site popped up in January dedicated to preventing the tea party’s “radical” and “dangerous” ideas from “gaining legislative traction,” targeting GOP candidates in Illinois for the firing squad.

But how does this happen? It apparently is legal, albeit deceitful:

Here’s how it works: What appears like a local groundswell is in fact the creation of two men — Craig Varoga and George Rakis, Democratic Party strategists who have set up a number of so-called 527 groups, the non-profit election organizations that hammer on contentious issues (think Swift Boats, for example).

Varoga and Rakis keep a central mailing address in Washington, pulling in soft money contributions from unions and other well-padded sources to engage in what amounts to a legal laundering system. The money — tens of millions of dollars — gets circulated around to different states by the 527s, which pay for TV ads, Internet campaigns and lobbyist salaries, all while keeping the hands of the unions clean — for the most part.

Fox has the list of donors, which comprises a set of interlocking slush-type funds that pay for the anti–Tea Party campaign. The largest of these is the American Federation of State, County and Municipal Employees (AFSCME,) which has kicked in a total of $9.9M in a single year to two funds that provide the cash for the non-grassroots movement. Yes — government workers’ money is being used to fend off Tea Party protesters.–

It seems that the Tea Party movement, once defamed and derided, now poses a threat to the liberal establishment, so much so that they are collecting millions to undermine it. Conservatives shouldn’t object to political speech — which this is. But there is certainly grounds to object to the chicanery, the lack of transparency, and the pretense that the opponents of the Tea Parties are themselves grassroots activists. They aren’t — this is Big Labor and assorted liberal-interest groups once again doing the bidding of the Democratic party. And if not for Fox, no one would be any the wiser.

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Re: Becker Defeated

Regarding the defeat of Harold Craig Becker’s nomination, the Wall Street Journal‘s editors observe:

Democrats Ben Nelson and Blanche Lincoln joined with Republicans to block cloture on a closely watched vote on the appointment of a lawyer for Andy Stern’s Service Employees International Union to a seat on the National Labor Relations Board. … The message from yesterday’s cloture motion is sobering for the White House and its union allies. Support for their antigrowth agenda, from universal health care to easier unionization rules, is collapsing on the Hill almost as quickly as in the country at large.

True, but it is equally true that a number of Democrats in competitive races went to the mat for that anti-growth agenda on Becker, just as they have on a series of items on Obama’s far-Left agenda. Voting for cloture and for Becker were Michael Bennet of Colorado, Evan Bayh of Indiana, and of course, Harry Reid of Nevada. Voters back home may wonder why it is that these self-styled moderates cast votes for Big Labor’s favorite lawyer, who thinks, surprisingly enough, just like the Big Labor bosses. (“Among the nominees for the three open seats on the five-member board, his views stood out for their radicalism. In a law review article, Mr. Becker said the NLRB could rewrite union-election rules to favor labor by fiat—for example, by removing the requirement for a secret ballot.”)

But now the ball is in Obama’s court. Does he install Becker, thereby exposing the Big Labor toadyism of his administration and highlighting the faux centrism of Bennet, Bayh, Reid, and others? Or does he take this as a sign that there is a limited appetite for his extreme vision and equally extreme appointees? There is always reason to hope that, finally, Obama will notice the blinking warning lights (Go back! Even your own party can’t defend you!). But if he didn’t take the Scott Brown win to heart, he’s probably not all that impressed that his NLRB nominee didn’t get through.

Regarding the defeat of Harold Craig Becker’s nomination, the Wall Street Journal‘s editors observe:

Democrats Ben Nelson and Blanche Lincoln joined with Republicans to block cloture on a closely watched vote on the appointment of a lawyer for Andy Stern’s Service Employees International Union to a seat on the National Labor Relations Board. … The message from yesterday’s cloture motion is sobering for the White House and its union allies. Support for their antigrowth agenda, from universal health care to easier unionization rules, is collapsing on the Hill almost as quickly as in the country at large.

True, but it is equally true that a number of Democrats in competitive races went to the mat for that anti-growth agenda on Becker, just as they have on a series of items on Obama’s far-Left agenda. Voting for cloture and for Becker were Michael Bennet of Colorado, Evan Bayh of Indiana, and of course, Harry Reid of Nevada. Voters back home may wonder why it is that these self-styled moderates cast votes for Big Labor’s favorite lawyer, who thinks, surprisingly enough, just like the Big Labor bosses. (“Among the nominees for the three open seats on the five-member board, his views stood out for their radicalism. In a law review article, Mr. Becker said the NLRB could rewrite union-election rules to favor labor by fiat—for example, by removing the requirement for a secret ballot.”)

But now the ball is in Obama’s court. Does he install Becker, thereby exposing the Big Labor toadyism of his administration and highlighting the faux centrism of Bennet, Bayh, Reid, and others? Or does he take this as a sign that there is a limited appetite for his extreme vision and equally extreme appointees? There is always reason to hope that, finally, Obama will notice the blinking warning lights (Go back! Even your own party can’t defend you!). But if he didn’t take the Scott Brown win to heart, he’s probably not all that impressed that his NLRB nominee didn’t get through.

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Obama Labor Nominee Draws Democratic Opposition

It seems that the nomination of Harold Craig Becker to the National Labor Relations Board may finally be kaput. Republicans are uniformly opposed to the nominee, who is the SEIU and AFL-CIO’s lawyer and whose writings have offered the view that labor election laws can be rewritten by the NLRB without congressional authorization. Now Sen. Ben Nelson, struggling to get back into the good graces of conservatives and business groups, is coming out against Becker:

Sen. Ben Nelson (D-Neb.) announced Monday evening that he will support a Republican-led filibuster over President Barack Obama’s nominee to serve on the National Labor Relations Board. The move is likely to infuriate labor groups who have fought hard for Craig Becker’s nomination to serve on the five-member NLRB — and will likely give Republicans enough support to sustain a filibuster Tuesday.

A report by Congressional Quarterly (subscription required) states that other Democrats may oppose Becker, although none has done so publicly. If Becker can’t get through the Senate with 60 votes to break a filibuster, there is the potential for a recess appointment. It wouldn’t be the first recess appointment in recent memory, but it does speak volumes about how extreme Becker is (two other NLRB nominees face no organized opposition) and how Obama has failed to garner even a modicum of bipartisan support, whether in matters large (health care) or relatively small (a labor board nominee).

It seems that the nomination of Harold Craig Becker to the National Labor Relations Board may finally be kaput. Republicans are uniformly opposed to the nominee, who is the SEIU and AFL-CIO’s lawyer and whose writings have offered the view that labor election laws can be rewritten by the NLRB without congressional authorization. Now Sen. Ben Nelson, struggling to get back into the good graces of conservatives and business groups, is coming out against Becker:

Sen. Ben Nelson (D-Neb.) announced Monday evening that he will support a Republican-led filibuster over President Barack Obama’s nominee to serve on the National Labor Relations Board. The move is likely to infuriate labor groups who have fought hard for Craig Becker’s nomination to serve on the five-member NLRB — and will likely give Republicans enough support to sustain a filibuster Tuesday.

A report by Congressional Quarterly (subscription required) states that other Democrats may oppose Becker, although none has done so publicly. If Becker can’t get through the Senate with 60 votes to break a filibuster, there is the potential for a recess appointment. It wouldn’t be the first recess appointment in recent memory, but it does speak volumes about how extreme Becker is (two other NLRB nominees face no organized opposition) and how Obama has failed to garner even a modicum of bipartisan support, whether in matters large (health care) or relatively small (a labor board nominee).

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Holder Under the Bus?

Andy McCarthy and I have both been looking at Attorney General Eric Holder’s latest effort to defend in a letter to Mitch McConnell the administration’s handling of the Christmas Day bomber. McCarthy sums it up:

The fundamental problem with the attorney general’s line of argument is that it unfolds as though there were no war and no president. Abdulmutallab, Holder believes, is just like any other person arrested in the United States: When an arrest happens, government officials automatically employ “long-established and publicly known policies and practices.” It does not matter who sent the person or what he was arrested trying to do. Miranda warnings are given, lawyers are interposed, charges are filed, and trials are conducted. Even if the nation is at war, we don’t inquire into whether the arrested person is an operative dispatched here by hostile forces to commit mass murder.

Aside from the sloppy legal work by Holder (including citing cases that have been since overturned by the Supreme Court), it is curious to see that the Obami are now retreating to the defense that “Bush did the same thing” (ignoring the instances in which Bush designated terrorists as enemy combatants). None of this seems to be working to shore up support for the criminal-justice model, which the Obami have insisted on employing, in part because the legal arguments are weak (e.g., disregarding the military-commission system, now in place to handle these cases) and in part because neither the public nor members of Obama’s own party think it makes sense to try KSM in a civilian court, Mirandize a terrorist, or ship Guantanamo detainees to the U.S. Joining the chorus of other mainstream critics of the Obama approach, Stuart Taylor calls Holder’s decisions to Mirandize the Christmas Day bomber and to try KSM in a civilian court “two glaring mistakes” that require a serious course correction by Obama in his anti-terrorism policies.

In a piece in the New Yorker, which aptly describes the gathering storm of opposition, Holder doubles-down (“What we did is totally consistent with what has happened in every similar case”) and lashes out at former Vice President Dick Cheney (“On some level, and I’m not sure why, he lacks confidence in the American system of justice”). But Holder seems to be on thin ice and the White House might now view him as a liability. The New Yorker quotes a source close to the White House:

“The White House doesn’t trust his judgment, and doesn’t think he’s mindful enough of all the things he should be,” such as protecting the President from political fallout. “They think he wants to protect his own image, and to make himself untouchable politically, the way Reno did, by doing the righteous thing.”

Even more ominous for Holder: Rahm Emanuel is making it clear to all those concerned that he disagreed with a string of highly controversial and politically disastrous decisions by Holder. We learn: “Emanuel adamantly opposed a number of Holder’s decisions, including one that widened the scope of a special counsel who had begun investigating the C.I.A.’s interrogation program. Bush had appointed the special counsel, John Durham, to assess whether the C.I.A. had obstructed justice when it destroyed videotapes documenting waterboarding sessions.” And then there is the KSM trial:

At the White House, Emanuel, who is not a lawyer, opposed Holder’s position on the 9/11 cases. He argued that the Administration needed the support of key Republicans to help close Guantánamo, and that a fight over Khalid Sheikh Mohammed could alienate them. “There was a lot of drama,” the informed source said. . . .  “Rahm felt very, very strongly that it was a mistake to prosecute the 9/11 people in the federal courts, and that it was picking an unnecessary fight with the military-commission people,” the informed source said. “Rahm had a good relationship with [Sen. Lindsay] Graham, and believed Graham when he said that if you don’t prosecute these people in military commissions I won’t support the closing of Guantánamo. . . . Rahm said, ‘If we don’t have Graham, we can’t close Guantánamo, and it’s on Eric!’ ”

Interesting that Emanuel and his spinners are now distancing the White House from their attorney general. One wonders where Obama stands in this drama. Isn’t he, after all, the commander in chief? Either the president was content to go along with Holder’s decisions until they went south or he subcontracted, with no oversight, some of the most critical decisions of his presidency to a lawyer who is prone to making the kind of mistakes a “first-year lawyer would get fired for.

Either way, Obama now must suffer the results of Holder’s ill-advised decisions. There will be much speculation, given Emanuel’s comments, as to whether the White House is getting ready to throw Holder under that proverbial bus. Now, as the Democrats join the Republicans to block the KSM trial and to deny funds for moving detainees to Illinois, it would be as good a time as any.

Andy McCarthy and I have both been looking at Attorney General Eric Holder’s latest effort to defend in a letter to Mitch McConnell the administration’s handling of the Christmas Day bomber. McCarthy sums it up:

The fundamental problem with the attorney general’s line of argument is that it unfolds as though there were no war and no president. Abdulmutallab, Holder believes, is just like any other person arrested in the United States: When an arrest happens, government officials automatically employ “long-established and publicly known policies and practices.” It does not matter who sent the person or what he was arrested trying to do. Miranda warnings are given, lawyers are interposed, charges are filed, and trials are conducted. Even if the nation is at war, we don’t inquire into whether the arrested person is an operative dispatched here by hostile forces to commit mass murder.

Aside from the sloppy legal work by Holder (including citing cases that have been since overturned by the Supreme Court), it is curious to see that the Obami are now retreating to the defense that “Bush did the same thing” (ignoring the instances in which Bush designated terrorists as enemy combatants). None of this seems to be working to shore up support for the criminal-justice model, which the Obami have insisted on employing, in part because the legal arguments are weak (e.g., disregarding the military-commission system, now in place to handle these cases) and in part because neither the public nor members of Obama’s own party think it makes sense to try KSM in a civilian court, Mirandize a terrorist, or ship Guantanamo detainees to the U.S. Joining the chorus of other mainstream critics of the Obama approach, Stuart Taylor calls Holder’s decisions to Mirandize the Christmas Day bomber and to try KSM in a civilian court “two glaring mistakes” that require a serious course correction by Obama in his anti-terrorism policies.

In a piece in the New Yorker, which aptly describes the gathering storm of opposition, Holder doubles-down (“What we did is totally consistent with what has happened in every similar case”) and lashes out at former Vice President Dick Cheney (“On some level, and I’m not sure why, he lacks confidence in the American system of justice”). But Holder seems to be on thin ice and the White House might now view him as a liability. The New Yorker quotes a source close to the White House:

“The White House doesn’t trust his judgment, and doesn’t think he’s mindful enough of all the things he should be,” such as protecting the President from political fallout. “They think he wants to protect his own image, and to make himself untouchable politically, the way Reno did, by doing the righteous thing.”

Even more ominous for Holder: Rahm Emanuel is making it clear to all those concerned that he disagreed with a string of highly controversial and politically disastrous decisions by Holder. We learn: “Emanuel adamantly opposed a number of Holder’s decisions, including one that widened the scope of a special counsel who had begun investigating the C.I.A.’s interrogation program. Bush had appointed the special counsel, John Durham, to assess whether the C.I.A. had obstructed justice when it destroyed videotapes documenting waterboarding sessions.” And then there is the KSM trial:

At the White House, Emanuel, who is not a lawyer, opposed Holder’s position on the 9/11 cases. He argued that the Administration needed the support of key Republicans to help close Guantánamo, and that a fight over Khalid Sheikh Mohammed could alienate them. “There was a lot of drama,” the informed source said. . . .  “Rahm felt very, very strongly that it was a mistake to prosecute the 9/11 people in the federal courts, and that it was picking an unnecessary fight with the military-commission people,” the informed source said. “Rahm had a good relationship with [Sen. Lindsay] Graham, and believed Graham when he said that if you don’t prosecute these people in military commissions I won’t support the closing of Guantánamo. . . . Rahm said, ‘If we don’t have Graham, we can’t close Guantánamo, and it’s on Eric!’ ”

Interesting that Emanuel and his spinners are now distancing the White House from their attorney general. One wonders where Obama stands in this drama. Isn’t he, after all, the commander in chief? Either the president was content to go along with Holder’s decisions until they went south or he subcontracted, with no oversight, some of the most critical decisions of his presidency to a lawyer who is prone to making the kind of mistakes a “first-year lawyer would get fired for.

Either way, Obama now must suffer the results of Holder’s ill-advised decisions. There will be much speculation, given Emanuel’s comments, as to whether the White House is getting ready to throw Holder under that proverbial bus. Now, as the Democrats join the Republicans to block the KSM trial and to deny funds for moving detainees to Illinois, it would be as good a time as any.

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Flotsam and Jetsam

Katie Couric will interview Obama live from the Super Bowl because we haven’t seen enough of him, and what he really needs is to communicate more with the American people. Well, that’s apparently what they think inside the White House cocoon. More cowbell!

Mickey Kaus thinks Obama’s excuse mongering about the health-care bill (“we were just about to clean those up [objections to the bill], and then Massachusetts’ election happened”) is a “stunning admission of incompetence.” So maybe the president does have a communications problem, after all. If you can’t read a calendar or follow election polls, you should keep it to yourself.

The Hill: “The House is unlikely to extend President George W. Bush’s cuts for taxpayers earning more than $250,000, Majority Leader Steny Hoyer (D-Md.) said Wednesday. … Allowing the tax breaks to expire at the end of the year will spark election-year criticism that Democrats are raising taxes. Congress approved the tax cuts in 2001 and 2003. Democrats are worried about losing seats in November’s midterm election, but Hoyer discounted the idea of his party losing seats solely because of a tax increase.” Well, he’s right — there is also all the red ink, ObamaCare, cap-and-trade, and the sleazy backroom dealings.

Foaming at the mouth and comparing Republicans to Hitler is not such a winning TV-ratings combination anymore. Andrew Malcolm tells us: ”Olbermann’s showboat is sinking. Listing in you-know-which direction. It’s as if he thinks talking LOUDER will keep his low cell battery from dying. Worst, Olbermann’s network president, Phil Griffin, is publicly praising him, always an ominous sign in television.”

Dana Perino reminds us: “The context in which the Bush administration was operating is important. President Bush authorized detaining terrorists as enemy combatants in November 2001, two months or so after 9/11. The Shoe Bomber was arrested in December 2001, only a month after President Bush’s order. At that point, there was no system in place to handle enemy combatants. … Perhaps the more interesting context is how months after the administration announced a High Value Detainee Interrogation Group they could not meet after Abdulmutallab’s attempt because … it hadn’t even been set up yet.”

Karl Rove points out: “The budget is filled with gimmicks. For example, the president is calling for a domestic, nonsecurity, discretionary spending freeze. But that freeze doesn’t apply to a $282 billion proposed second stimulus package. It also doesn’t apply to the $519 billion that has yet to be spent from the first stimulus bill. The federal civilian work force is also not frozen. It is projected to rise to 1.43 million employees in 2010, up from 1.2 million in 2008.” And it seems that the mainstream media and the public are increasingly on to this sort of stunt. That may account for all the Democratic retirements: ”Democrats are in the midst of the painful realization: Mr. Obama’s words cannot save them from the power of bad ideas.”

But Obama is telling Senate Democrats that “I think the natural political instinct is to tread lightly, keep your head down and to play it safe.” Translation: go ahead, pass ObamaCare, and join Martha Coakley, Jon Corzine, Creigh Deeds, Chris Dodd, and Byron Dorgan. The president tells them “the answer is not to do nothing.” I think “nothing” is looking like the best of bad options for the beleaguered Senate Democrats, who are now contemplating a serious reduction in their ranks.

The gamesmanship finally ends: “Massachusetts Senator-elect Scott Brown will be sworn in Thursday, according to Jim Manley, the spokesman for Senate Majority Leader Harry Reid, D-Nev. Brown’s lawyer today asked that the election results in his state be immediately certified so that he can be sworn in right away. Initially Brown was scheduled to take office next week, but has since decided he wants to vote on upcoming nominations for solicitor general, the General Services Administration and the National Labor Relations Board.” That probably means that Harold Craig Becker’s nomination is in trouble.

Katie Couric will interview Obama live from the Super Bowl because we haven’t seen enough of him, and what he really needs is to communicate more with the American people. Well, that’s apparently what they think inside the White House cocoon. More cowbell!

Mickey Kaus thinks Obama’s excuse mongering about the health-care bill (“we were just about to clean those up [objections to the bill], and then Massachusetts’ election happened”) is a “stunning admission of incompetence.” So maybe the president does have a communications problem, after all. If you can’t read a calendar or follow election polls, you should keep it to yourself.

The Hill: “The House is unlikely to extend President George W. Bush’s cuts for taxpayers earning more than $250,000, Majority Leader Steny Hoyer (D-Md.) said Wednesday. … Allowing the tax breaks to expire at the end of the year will spark election-year criticism that Democrats are raising taxes. Congress approved the tax cuts in 2001 and 2003. Democrats are worried about losing seats in November’s midterm election, but Hoyer discounted the idea of his party losing seats solely because of a tax increase.” Well, he’s right — there is also all the red ink, ObamaCare, cap-and-trade, and the sleazy backroom dealings.

Foaming at the mouth and comparing Republicans to Hitler is not such a winning TV-ratings combination anymore. Andrew Malcolm tells us: ”Olbermann’s showboat is sinking. Listing in you-know-which direction. It’s as if he thinks talking LOUDER will keep his low cell battery from dying. Worst, Olbermann’s network president, Phil Griffin, is publicly praising him, always an ominous sign in television.”

Dana Perino reminds us: “The context in which the Bush administration was operating is important. President Bush authorized detaining terrorists as enemy combatants in November 2001, two months or so after 9/11. The Shoe Bomber was arrested in December 2001, only a month after President Bush’s order. At that point, there was no system in place to handle enemy combatants. … Perhaps the more interesting context is how months after the administration announced a High Value Detainee Interrogation Group they could not meet after Abdulmutallab’s attempt because … it hadn’t even been set up yet.”

Karl Rove points out: “The budget is filled with gimmicks. For example, the president is calling for a domestic, nonsecurity, discretionary spending freeze. But that freeze doesn’t apply to a $282 billion proposed second stimulus package. It also doesn’t apply to the $519 billion that has yet to be spent from the first stimulus bill. The federal civilian work force is also not frozen. It is projected to rise to 1.43 million employees in 2010, up from 1.2 million in 2008.” And it seems that the mainstream media and the public are increasingly on to this sort of stunt. That may account for all the Democratic retirements: ”Democrats are in the midst of the painful realization: Mr. Obama’s words cannot save them from the power of bad ideas.”

But Obama is telling Senate Democrats that “I think the natural political instinct is to tread lightly, keep your head down and to play it safe.” Translation: go ahead, pass ObamaCare, and join Martha Coakley, Jon Corzine, Creigh Deeds, Chris Dodd, and Byron Dorgan. The president tells them “the answer is not to do nothing.” I think “nothing” is looking like the best of bad options for the beleaguered Senate Democrats, who are now contemplating a serious reduction in their ranks.

The gamesmanship finally ends: “Massachusetts Senator-elect Scott Brown will be sworn in Thursday, according to Jim Manley, the spokesman for Senate Majority Leader Harry Reid, D-Nev. Brown’s lawyer today asked that the election results in his state be immediately certified so that he can be sworn in right away. Initially Brown was scheduled to take office next week, but has since decided he wants to vote on upcoming nominations for solicitor general, the General Services Administration and the National Labor Relations Board.” That probably means that Harold Craig Becker’s nomination is in trouble.

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Undoing the Damage — We Hope

As Stephen Hayes details, the Christmas Day bomber is now talking and the Obami have changed their tune. For days and weeks we heard from Obama’s flacks and from leaks in mainstream news outlets that in Abdulmutallab’s 50-minute interview, FBI agents got out all that we needed. And then we were told that he stopped talking even before the Miranda warnings were given. The spin-athon was on to convince us that ”nothing was lost” by allowing him to lawyer up and sit mutely for five weeks. Now he’s talking and we are hearing that intelligence officials are (finally) extracting valuable data. Well, the information we are eliciting might have been even more valuable five weeks ago. Hayes sums up the Keystone Kops display that we have witnessed:

Four top U.S. counterterrorism officials — including Mueller, Blair, Secretary of Homeland Security Janet Napolitano, and Director of the National Counterterrorism Center Michael Leiter — were not consulted about whether to handle Abdulmutallab as an enemy combatant or a criminal. Leiter went on vacation the day after the attack.  John Brennan, the top White House counterterrorism adviser, told him he could go. Three days after the attack, despite copious evidence that Al Qaeda in the Arabian Peninsula (AQAP) was involved, President Obama declared the attempted bombing the work of “an isolated extremist.” Janet Napolitano, Secretary of Homeland Security, said that she was surprised by AQAP’s “determination” to attack the U.S. homeland and shocked to learn that they would send an individual, not a group, to carry out the deed. DNI Blair told Congress that an elite interrogation team should have questioned Abdulmutallab — only to amend his remarks hours later to acknowledge that the new unit does not exist.

The Obama team is straining to maintain credibility, to convince the public that their criminal-justice model really does make sense, and to assure us that they have not blundered by throwing overboard Bush-era anti-terrorism policies. But let’s get real here: the problem, as well as the spin, started when Abdulmutallab, with no input from intelligence officials, was treated like a common criminal and then clammed up. The last five weeks have been spent by the Obami trying to undue that damage. Let’s hope nothing was lost in the interim. Let’s hope the leads we get (if we get any) have not gone cold. And let’s hope we didn’t give Abdulmutallab a “deal” in order to get him to resume talking.

As Stephen Hayes details, the Christmas Day bomber is now talking and the Obami have changed their tune. For days and weeks we heard from Obama’s flacks and from leaks in mainstream news outlets that in Abdulmutallab’s 50-minute interview, FBI agents got out all that we needed. And then we were told that he stopped talking even before the Miranda warnings were given. The spin-athon was on to convince us that ”nothing was lost” by allowing him to lawyer up and sit mutely for five weeks. Now he’s talking and we are hearing that intelligence officials are (finally) extracting valuable data. Well, the information we are eliciting might have been even more valuable five weeks ago. Hayes sums up the Keystone Kops display that we have witnessed:

Four top U.S. counterterrorism officials — including Mueller, Blair, Secretary of Homeland Security Janet Napolitano, and Director of the National Counterterrorism Center Michael Leiter — were not consulted about whether to handle Abdulmutallab as an enemy combatant or a criminal. Leiter went on vacation the day after the attack.  John Brennan, the top White House counterterrorism adviser, told him he could go. Three days after the attack, despite copious evidence that Al Qaeda in the Arabian Peninsula (AQAP) was involved, President Obama declared the attempted bombing the work of “an isolated extremist.” Janet Napolitano, Secretary of Homeland Security, said that she was surprised by AQAP’s “determination” to attack the U.S. homeland and shocked to learn that they would send an individual, not a group, to carry out the deed. DNI Blair told Congress that an elite interrogation team should have questioned Abdulmutallab — only to amend his remarks hours later to acknowledge that the new unit does not exist.

The Obama team is straining to maintain credibility, to convince the public that their criminal-justice model really does make sense, and to assure us that they have not blundered by throwing overboard Bush-era anti-terrorism policies. But let’s get real here: the problem, as well as the spin, started when Abdulmutallab, with no input from intelligence officials, was treated like a common criminal and then clammed up. The last five weeks have been spent by the Obami trying to undue that damage. Let’s hope nothing was lost in the interim. Let’s hope the leads we get (if we get any) have not gone cold. And let’s hope we didn’t give Abdulmutallab a “deal” in order to get him to resume talking.

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Is Obama “Generally Mishandling the Terrorism Issue”?

That’s the question Politico’s forum is asking this morning. Yes, if you have to ask, it’s not a good sign for the administration. The forum participants do not pull their punches. A Princeton professor warns: “President Obama has not been able to articulate a clear national security agenda and on several issues, including Guantanamo and the NYC trials, the White House did not seem to have all their political ducks lined up before announcing a policy.” James Carafano of Heritage addresses the president: “Your detention, interrogation, and terrorist trial strategy has unraveled faster than an old sock. This is the perfect issue for you and the Republicans to sit down and craft a true bipartisan plan. Here is why 1) clearly this is the best interest of the nation if there is one issue where policy should trump politics this is it. 2) We know what the realistic options are.” A conservative advises: “Holding the terror trials in civilian courts could doom this Administration in a way that makes the health care cacophony seem like a Christmas choral performance.”

Moreover, there is already a widespread consensus and a ready-made model for what we can do. Leave Guantanamo open. Try KSM and his associates in military tribunals. Have terrorist suspects interrogated by trained intelligence personnel and don’t allow them to lawyer up before we get all available information. It’s not hard to figure out how to get this right. But it would entail an about-face and a rather humiliating admission that the Bush-era policies were instituted for good reasons and were well designed to combat the enemy we face.

In this case, the problem is not strictly speaking “political,” because it is Obama’s current policies that are unpopular and bringing him daily criticism. But a reversal would nevertheless be the subject of much hollering on the Left, which is already disillusioned with the president, who they imagined would have the political skills and the will to deliver on their ultra-liberal wish list. (I think the Lilly Ledbetter legislation is about it, unless you count a mediocre Supreme Court justice.) Rather, it would be a personal admission of failure and of poor judgment, a concession that the campaign rhetoric based on “not George Bush” was effective only as a club to whack the prior administration but not as a blueprint for governance.

It would, moreover, reveal as a lie the argument that we had strayed from out “values” or “lost our way” in the Bush years. It is Obama who has strayed. If he is to end the swirl of controversy and, more important, devise a rational national-security policy, he should dump his ill-fated and rather juvenile rejection of the policies that kept us safe for seven and a half years. And then he can rethink his engagement of the “Muslim world” and begin to explain in candid terms the nature of our enemy and their ideological underpinnings. But first things first. Let’s start with simply dumping the “not Bush” anti-terror strategy.

That’s the question Politico’s forum is asking this morning. Yes, if you have to ask, it’s not a good sign for the administration. The forum participants do not pull their punches. A Princeton professor warns: “President Obama has not been able to articulate a clear national security agenda and on several issues, including Guantanamo and the NYC trials, the White House did not seem to have all their political ducks lined up before announcing a policy.” James Carafano of Heritage addresses the president: “Your detention, interrogation, and terrorist trial strategy has unraveled faster than an old sock. This is the perfect issue for you and the Republicans to sit down and craft a true bipartisan plan. Here is why 1) clearly this is the best interest of the nation if there is one issue where policy should trump politics this is it. 2) We know what the realistic options are.” A conservative advises: “Holding the terror trials in civilian courts could doom this Administration in a way that makes the health care cacophony seem like a Christmas choral performance.”

Moreover, there is already a widespread consensus and a ready-made model for what we can do. Leave Guantanamo open. Try KSM and his associates in military tribunals. Have terrorist suspects interrogated by trained intelligence personnel and don’t allow them to lawyer up before we get all available information. It’s not hard to figure out how to get this right. But it would entail an about-face and a rather humiliating admission that the Bush-era policies were instituted for good reasons and were well designed to combat the enemy we face.

In this case, the problem is not strictly speaking “political,” because it is Obama’s current policies that are unpopular and bringing him daily criticism. But a reversal would nevertheless be the subject of much hollering on the Left, which is already disillusioned with the president, who they imagined would have the political skills and the will to deliver on their ultra-liberal wish list. (I think the Lilly Ledbetter legislation is about it, unless you count a mediocre Supreme Court justice.) Rather, it would be a personal admission of failure and of poor judgment, a concession that the campaign rhetoric based on “not George Bush” was effective only as a club to whack the prior administration but not as a blueprint for governance.

It would, moreover, reveal as a lie the argument that we had strayed from out “values” or “lost our way” in the Bush years. It is Obama who has strayed. If he is to end the swirl of controversy and, more important, devise a rational national-security policy, he should dump his ill-fated and rather juvenile rejection of the policies that kept us safe for seven and a half years. And then he can rethink his engagement of the “Muslim world” and begin to explain in candid terms the nature of our enemy and their ideological underpinnings. But first things first. Let’s start with simply dumping the “not Bush” anti-terror strategy.

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Re: Surprises

Last night a reader and I tried to recall if another president had lashed out at the Supreme Court in the way Obama went after the Court for its defense of the First Amendment in striking down portions of the McCain-Feingold statute. Obama suggested that the Court was somehow running to the aid of nefarious “foreign entities” and ignored entirely what was at issue in the case — the protection of core political speech. He proclaimed:

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

Apparently, Obama is just wrong. The Court’s ruling didn’t impact the section of the statute that prohibits foreign corporations from making campaign donations or expenditures. (And the ban on direct corporate contributions remains in effect.) No wonder Justice Alito mouthed “not true.” (Even the New York Times’s notoriously liberal-leaning former court reporter Linda Greenhouse says Obama botched the case description.)

But aside from that, there’s the unseemly sight of the president berating the Court in this manner. Constitutional scholar Randy Barnett was thinking about the president’s attack too. He writes:

In the history of the State of the Union has any President ever called out the Supreme Court by name, and egged on the Congress to jeer a Supreme Court decision, while the Justices were seated politely before him surrounded by hundreds Congressmen? To call upon the Congress to countermand (somehow) by statute a constitutional decision, indeed a decision applying the First Amendment? What can this possibly accomplish besides alienating Justice Kennedy who wrote the opinion being attacked. Contrary to what we heard during the last administration, the Court may certainly be the object of presidential criticism without posing any threat to its independence. But this was a truly shocking lack of decorum and disrespect towards the Supreme Court for which an apology is in order. A new tone indeed.

This conduct is even more repellent given that Obama waves around his law school credentials and constitutional-law teaching background when it’s convenient to impress voters with his command of the fine points of our legal system, yet resorts to know-nothing political posturing on the judiciary when it serves his purposes. And what makes this particularly disingenuous is that the president said a great deal about tone and political posturing last night. He lectured us:

Unfortunately, too many of our citizens have lost faith that our biggest institutions — our corporations, our media, and yes, our government — still reflect these same values. Each of these institutions are full of honorable men and women doing important work that helps our country prosper. But each time a CEO rewards himself for failure, or a banker puts the rest of us at risk for his own selfish gain, people’s doubts grow. Each time lobbyists game the system or politicians tear each other down instead of lifting this country up, we lose faith. The more that TV pundits reduce serious debates into silly arguments, and big issues into sound bites, our citizens turn away.

One of those institutions filled with honorable men and women doing important work is the Supreme Court. Obama proceeded to minimize a serious debate over the centrality of the First Amendment to the robust operation of our political system by resorting to a silly argument, from which serious citizens should surely turn away. He conveys not merely a lack of respect for a co-equal branch of government (and ignorance about the ruling he was vilifying) but for the Constitution itself, which he is sworn to uphold. For a lawyer, his conduct is embarrassing; for a president, it is inexcusable.

Last night a reader and I tried to recall if another president had lashed out at the Supreme Court in the way Obama went after the Court for its defense of the First Amendment in striking down portions of the McCain-Feingold statute. Obama suggested that the Court was somehow running to the aid of nefarious “foreign entities” and ignored entirely what was at issue in the case — the protection of core political speech. He proclaimed:

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

Apparently, Obama is just wrong. The Court’s ruling didn’t impact the section of the statute that prohibits foreign corporations from making campaign donations or expenditures. (And the ban on direct corporate contributions remains in effect.) No wonder Justice Alito mouthed “not true.” (Even the New York Times’s notoriously liberal-leaning former court reporter Linda Greenhouse says Obama botched the case description.)

But aside from that, there’s the unseemly sight of the president berating the Court in this manner. Constitutional scholar Randy Barnett was thinking about the president’s attack too. He writes:

In the history of the State of the Union has any President ever called out the Supreme Court by name, and egged on the Congress to jeer a Supreme Court decision, while the Justices were seated politely before him surrounded by hundreds Congressmen? To call upon the Congress to countermand (somehow) by statute a constitutional decision, indeed a decision applying the First Amendment? What can this possibly accomplish besides alienating Justice Kennedy who wrote the opinion being attacked. Contrary to what we heard during the last administration, the Court may certainly be the object of presidential criticism without posing any threat to its independence. But this was a truly shocking lack of decorum and disrespect towards the Supreme Court for which an apology is in order. A new tone indeed.

This conduct is even more repellent given that Obama waves around his law school credentials and constitutional-law teaching background when it’s convenient to impress voters with his command of the fine points of our legal system, yet resorts to know-nothing political posturing on the judiciary when it serves his purposes. And what makes this particularly disingenuous is that the president said a great deal about tone and political posturing last night. He lectured us:

Unfortunately, too many of our citizens have lost faith that our biggest institutions — our corporations, our media, and yes, our government — still reflect these same values. Each of these institutions are full of honorable men and women doing important work that helps our country prosper. But each time a CEO rewards himself for failure, or a banker puts the rest of us at risk for his own selfish gain, people’s doubts grow. Each time lobbyists game the system or politicians tear each other down instead of lifting this country up, we lose faith. The more that TV pundits reduce serious debates into silly arguments, and big issues into sound bites, our citizens turn away.

One of those institutions filled with honorable men and women doing important work is the Supreme Court. Obama proceeded to minimize a serious debate over the centrality of the First Amendment to the robust operation of our political system by resorting to a silly argument, from which serious citizens should surely turn away. He conveys not merely a lack of respect for a co-equal branch of government (and ignorance about the ruling he was vilifying) but for the Constitution itself, which he is sworn to uphold. For a lawyer, his conduct is embarrassing; for a president, it is inexcusable.

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It Isn’t Too Late to Interrogate Abdulmutallab

Dennis Blair, for reasons not entirely clear (a parting shot? a spasm of guilt for a job poorly done?), took a big swing at the Obami yesterday where they’re most vulnerable: their knee-jerk fixation on treating Islamic terrorists as common criminals. This report explains:

Director of National Intelligence Dennis C. Blair faulted the decision not to use the “High Value Interrogation Group” (HIG) to question alleged al-Qaeda operative Umar Farouk Abdulmutallab.

“That unit was created exactly for this purpose — to make a decision on whether a certain person who’s detained should be treated as a case for federal prosecution or for some of the other means,” Blair told the Senate homeland security committee.

The intelligence chief said the interrogation group was created by the White House last year to handle overseas cases but will be expanded now to domestic ones. “We did not invoke the HIG in this case; we should have,” he added.

Later in the day Blair was forced to walk it back with the “my words were misconstrued” lingo that is the telltale sign of being big-footed by an irate White House. Still, the damage had been done. Blair’s complaint is precisely the one that critics have been making since it was revealed that Umar Farouk Abdulmutallab chatted with the FBI for a bit and then clammed up, having been handed a full panoply of constitutional rights, including the right to remain silent. No more dot-connecting information will come from him unless he disregards his lawyer’s admonitions or, more likely, makes a plea deal.

It seems the Obami operate on cruise control — set the car in motion, hit the button, and never touch the controls again. The lack of thoughtful analysis or consideration is breathtaking. As the report notes, “Blair, FBI Director Robert S. Mueller III, National Counterterrorism Center Director Michael E. Leiter and Homeland Security Secretary Janet Napolitano told lawmakers that they were not consulted about the charging decision.” Well, with Eric Holder and the lefty lawyers in the Justice Department apparently running anti-terror policy, no one thought that those responsible for preventing future attacks and gathering critical intelligence data might want to weigh in on the matter.

But here’s the thing: it isn’t too late. We can still declare Abdulmutallab an enemy combatant and ship him off for questioning and a military tribunal. Sure we’ve lost time, and it was a grievous error not to have used all the tools at our disposal to extract information, but why compound the error by leaving him in the criminal justice process? Blair has admitted that the Obami erred, so someone should ask him why Mueller, Leiter, Napolitano, and maybe even the president (he is in charge, right?) aren’t now considering how to limit the damage done by the ill-advised and unthinking actions taken on Christmas Day.

Dennis Blair, for reasons not entirely clear (a parting shot? a spasm of guilt for a job poorly done?), took a big swing at the Obami yesterday where they’re most vulnerable: their knee-jerk fixation on treating Islamic terrorists as common criminals. This report explains:

Director of National Intelligence Dennis C. Blair faulted the decision not to use the “High Value Interrogation Group” (HIG) to question alleged al-Qaeda operative Umar Farouk Abdulmutallab.

“That unit was created exactly for this purpose — to make a decision on whether a certain person who’s detained should be treated as a case for federal prosecution or for some of the other means,” Blair told the Senate homeland security committee.

The intelligence chief said the interrogation group was created by the White House last year to handle overseas cases but will be expanded now to domestic ones. “We did not invoke the HIG in this case; we should have,” he added.

Later in the day Blair was forced to walk it back with the “my words were misconstrued” lingo that is the telltale sign of being big-footed by an irate White House. Still, the damage had been done. Blair’s complaint is precisely the one that critics have been making since it was revealed that Umar Farouk Abdulmutallab chatted with the FBI for a bit and then clammed up, having been handed a full panoply of constitutional rights, including the right to remain silent. No more dot-connecting information will come from him unless he disregards his lawyer’s admonitions or, more likely, makes a plea deal.

It seems the Obami operate on cruise control — set the car in motion, hit the button, and never touch the controls again. The lack of thoughtful analysis or consideration is breathtaking. As the report notes, “Blair, FBI Director Robert S. Mueller III, National Counterterrorism Center Director Michael E. Leiter and Homeland Security Secretary Janet Napolitano told lawmakers that they were not consulted about the charging decision.” Well, with Eric Holder and the lefty lawyers in the Justice Department apparently running anti-terror policy, no one thought that those responsible for preventing future attacks and gathering critical intelligence data might want to weigh in on the matter.

But here’s the thing: it isn’t too late. We can still declare Abdulmutallab an enemy combatant and ship him off for questioning and a military tribunal. Sure we’ve lost time, and it was a grievous error not to have used all the tools at our disposal to extract information, but why compound the error by leaving him in the criminal justice process? Blair has admitted that the Obami erred, so someone should ask him why Mueller, Leiter, Napolitano, and maybe even the president (he is in charge, right?) aren’t now considering how to limit the damage done by the ill-advised and unthinking actions taken on Christmas Day.

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Civil Rights Laws Run Only One Way?

A curious report appears over at Main Justice, a website that offers nice juicy gossip and often mirrors the liberal legal party line from the Justice Department. It seems that one of the New Black Panther Party members at issue in the controversial dismissal of the Election Day voter-intimidation case is hopping mad:

Last week in a podcast interview, [New Black Panther Party president Malik Zulu] Shabazz let loose — with a racially tinged rant against the Republicans he said are trying to turn the issue into campaign ads for this fall’s midterm elections. “These right-wing white, red-faced, red-neck Republicans are attacking the hell out of the New Black Panther Party, and we’re organizing now to fight back,” Shabazz told the podcast host, a man who calls himself “Brother Gary” and hosts a show called Conscious Chats on Blogtalk Radio.

Shabazz singled out GOP Reps. Frank Wolf (Va.) and Lamar Smith (Texas) — two critics on the House Judiciary Committee — along with “Old Uncle Tom, Michael Steele, the black Negro who heads the Republican National Committee.”

“We gearing up for a showdown with this cracker,” Shabazz said, although it wasn’t clear to whom he was referring. “He keep talking – we going to Capitol Hill, we’re just gearing up right now, we’ll go to Capitol Hill.”

Well, probably not what the Holder Justice Department was anxious to hear as it attempts to stonewall its way through the inquiry. But what’s even more interesting is the apparent “defense” offered by Main Justice for those Obama officials who chose to dismiss the case over the objections of career attorneys: “No actual voters came forward to complain — the objections came from white Republican poll watchers.”

So is that what’s at the root of the case here — the notion that voter-intimidation claims are less than valid if white Republicans bring them? The behavior of the New Black Panther Party members was, after all, captured on videotape, so the conduct of the defendants is really not in dispute. What seems to be gnawing at the liberal legal types, however, is that a voter-intimidation case could be instituted by whites — white Republicans no less. Read More

A curious report appears over at Main Justice, a website that offers nice juicy gossip and often mirrors the liberal legal party line from the Justice Department. It seems that one of the New Black Panther Party members at issue in the controversial dismissal of the Election Day voter-intimidation case is hopping mad:

Last week in a podcast interview, [New Black Panther Party president Malik Zulu] Shabazz let loose — with a racially tinged rant against the Republicans he said are trying to turn the issue into campaign ads for this fall’s midterm elections. “These right-wing white, red-faced, red-neck Republicans are attacking the hell out of the New Black Panther Party, and we’re organizing now to fight back,” Shabazz told the podcast host, a man who calls himself “Brother Gary” and hosts a show called Conscious Chats on Blogtalk Radio.

Shabazz singled out GOP Reps. Frank Wolf (Va.) and Lamar Smith (Texas) — two critics on the House Judiciary Committee — along with “Old Uncle Tom, Michael Steele, the black Negro who heads the Republican National Committee.”

“We gearing up for a showdown with this cracker,” Shabazz said, although it wasn’t clear to whom he was referring. “He keep talking – we going to Capitol Hill, we’re just gearing up right now, we’ll go to Capitol Hill.”

Well, probably not what the Holder Justice Department was anxious to hear as it attempts to stonewall its way through the inquiry. But what’s even more interesting is the apparent “defense” offered by Main Justice for those Obama officials who chose to dismiss the case over the objections of career attorneys: “No actual voters came forward to complain — the objections came from white Republican poll watchers.”

So is that what’s at the root of the case here — the notion that voter-intimidation claims are less than valid if white Republicans bring them? The behavior of the New Black Panther Party members was, after all, captured on videotape, so the conduct of the defendants is really not in dispute. What seems to be gnawing at the liberal legal types, however, is that a voter-intimidation case could be instituted by whites — white Republicans no less.

This only serves to highlight the remarks of Chris Coates, the head of the Justice Department’s trial team, who upon his departure had these pointed words for his colleagues (paraphrased by Hans von Spakovsky):

Since many minority officials are now involved in the administration of elections in many jurisdictions, it is imperative that they believe that the anti-discrimination and anti-intimidation provisions of the Voting Rights Act will be enforced against them by the Justice Department, just as it is imperative that white election officials believe that Justice will enforce the provisions of the Voting Rights Act against them. I fear that actions that indicate that the Justice Department is not in the business of suing minority election officials, or not in the business of filing suits to protect white voters from discrimination or intimidation, will only encourage election officials, who are so inclined, to violate the Voting Rights Act.

I cannot imagine that any lawyers who believe in the rule of law would want to encourage violations of the Voting Rights Act by anyone, whether the wrongdoers are members of a minority group or white people.

It’s hard to believe that had the polling place been in Alabama and the intimidators been clad in KKK garb that the Obama Justice Department would not have proceeded full steam ahead against all defendants to the full extent of the law. But when the roles were reversed, a different standard seemed to apply. Indeed, Coates is no stranger to that double standard of enforcement from the liberal civil rights lawyers who dominate the Civil Rights Division. He explained his experience in a voter-intimidation case he brought when the victims were white and the perpetrator African American:

Selective enforcement of the law, including the Voting Rights Act, on the basis of race is just not fair and does not achieve justice.

I have had many discussions concerning these cases. In one of my discussions concerning the Ike Brown case, I had a lawyer say he was opposed to our filing such suits. When I asked why, he said that only when he could go to Mississippi (perhaps 50 years from now) and find no disparities between the socioeconomic levels of black and white residents, might he support such a suit. But until that day, he did not think that we should be filing voting-rights cases against blacks or on behalf of white voters.

The problem with such enforcement is that it is not in compliance with the statute enacted by Congress. There is simply nothing in the VRA itself or its legislative history that supports the claim that it should not be equally enforced until racial socioeconomic parity is achieved. Such an enforcement policy might be consistent with certain political ideologies, but it is not consistent with the Voting Rights Act that Justice is responsible for enforcing.

And that may be what is at the root of the New Black Panther Party case — the unspoken but endemic belief on the Left that the civil rights laws run only one way. The Obama administration must sense that this is anathema to most Americans. Hence, the stonewall. But having dismissed the New Black Panther Party case, it should now explain its decision and justify that approach to civil rights enforcement. Does the administration really believe that it simply isn’t right to prosecute a case where white Republicans are bringing the claim? It sure does look that way.

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Re: New Black Panther Party Case

Based on what I have learned so far, the Justice Department seems to be responding in less than candid fashion to the discovery of the U.S. Commission on Civil Rights. A knowledgeable source who has reviewed the responses tells me:

There are statements in the response that reveal the Department isn’t replying in good faith and isn’t trying very hard to get to the bottom of the case. For example, the Commission asked for information about communications from a Philadelphia lawyer who said he represented one of the black panthers, even though he never filed a pleading. The Department says they can’t find any evidence of such communications. They might start by looking at the publicly filed pleadings in the case because an affidavit was filed in the case discussing communications with the attorney in some detail.

Then there is the lack of information about those individuals in outside liberal civil rights groups who are believed to have communicated with Obama officials about the case’s dismissal. Despite the Justice Department’s reticence to reveal any information, I am told that the communications from Kristen Clarke of the NAACP about the case are widely known in the division. My source tells me that Loretta King, former acting assistant attorney general of civil rights, spoke with Clarke “inside DOJ headquarters at the Robert F. Kennedy building on numerous occasions.” Former Justice Department lawyer Hans von Spakovsky similarly reports:

One former Voting Section career lawyer who had left the Justice Department to go to work for the NAACP, Kristen Clarke, admitted to the Washington Times that she talked to the new political leadership after Obama was inaugurated, berating them for not dismissing the [New Black Panther Party] case. Sources at Justice tell me Clarke made an identical pitch to her former colleagues in the Voting Section once Obama and Eric Holder came to power.

The entreaties proved productive. According to the Washington Times, Loretta King, whom Obama named the acting assistant attorney general of the [Civil Rights Division], ordered [Chief of the Civil Rights division Chris] Coates to dismiss the case against three of the defendants despite their default. King apparently received approval from Associate Attorney General Thomas Perrelli to do so. Who else Perrelli spoke with in the Justice Department and the White House is the subject of continued stonewalling in response to the subpoenas served on Justice by the U.S. Civil Rights Commission. Read More

Based on what I have learned so far, the Justice Department seems to be responding in less than candid fashion to the discovery of the U.S. Commission on Civil Rights. A knowledgeable source who has reviewed the responses tells me:

There are statements in the response that reveal the Department isn’t replying in good faith and isn’t trying very hard to get to the bottom of the case. For example, the Commission asked for information about communications from a Philadelphia lawyer who said he represented one of the black panthers, even though he never filed a pleading. The Department says they can’t find any evidence of such communications. They might start by looking at the publicly filed pleadings in the case because an affidavit was filed in the case discussing communications with the attorney in some detail.

Then there is the lack of information about those individuals in outside liberal civil rights groups who are believed to have communicated with Obama officials about the case’s dismissal. Despite the Justice Department’s reticence to reveal any information, I am told that the communications from Kristen Clarke of the NAACP about the case are widely known in the division. My source tells me that Loretta King, former acting assistant attorney general of civil rights, spoke with Clarke “inside DOJ headquarters at the Robert F. Kennedy building on numerous occasions.” Former Justice Department lawyer Hans von Spakovsky similarly reports:

One former Voting Section career lawyer who had left the Justice Department to go to work for the NAACP, Kristen Clarke, admitted to the Washington Times that she talked to the new political leadership after Obama was inaugurated, berating them for not dismissing the [New Black Panther Party] case. Sources at Justice tell me Clarke made an identical pitch to her former colleagues in the Voting Section once Obama and Eric Holder came to power.

The entreaties proved productive. According to the Washington Times, Loretta King, whom Obama named the acting assistant attorney general of the [Civil Rights Division], ordered [Chief of the Civil Rights division Chris] Coates to dismiss the case against three of the defendants despite their default. King apparently received approval from Associate Attorney General Thomas Perrelli to do so. Who else Perrelli spoke with in the Justice Department and the White House is the subject of continued stonewalling in response to the subpoenas served on Justice by the U.S. Civil Rights Commission.

Coates was the head of the department’s New Black Panther Party trial team and has been subpoenaed by the commission. Von Spakovsky also details how Obama officials made life miserable for Coates in recent months, resulting in his recent transfer to South Carolina.

As to the substance of the department’s responses, my source points out that although the Justice Department touts that it sought relief against one defendant, “the injunction was limited to only the city limits, and only to actual weapon possession, over the objections of the career attorneys.” One of those career attorneys who objected was, of course, Coates.

It is noteworthy that even on small matters, the Justice Department’s response comes up short. As is standard practice, the Civil Rights Commission requested a “privilege log” — that is, a detailed explanation of which documents were being withheld because of a claim of privilege, with some basic descriptive material that can then be the basis, if necessary, for review by a judge. However, as far as I can tell, even that log was not provided by the Justice Department. Perhaps even that would have given away too much.

The lengths to which the Justice Department has gone to avoid giving away information that is apparently widely known and available is remarkable. As my source noted, “Reasonable people may start to conclude what is being concealed is worth these lawless risks.”

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Will They Give up on Closing Guantanamo?

The rationale for closing Guantanamo was always thin. It was, the Obami said, a “recruiting tool” — although terrorists hardly needed yet another reason to slaughter us. They have so many after all and didn’t need Guantanamo to recruit terrorists throughout the 1990s and for 9/11. It had a “bad reputation” — although much of that was based on misinformation, and the Obama team concedes it is a professionally run, humane, and secure facility. Now comes word that the detainees don’t want to leave. After all, even leftist advocacy groups realize the change of venue doesn’t mean much. (A Human Rights Watch rep tells Newsweek “Moving more than 100 detainees — the vast majority of whom would end up being held without charge — to a U.S. facility that is already being dubbed ‘Gitmo North’ will blunt the positive message Obama hoped to send by shutting Guantanamo in the first place.”)

It doesn’t really make any sense if we want to “improve our image” when the detainees and their lawyers now contend that a SuperMax facility is worse than the current rather comfy environs:

[T]he final irony is that many of the detainees may not even want to be transferred to Thomson and could conceivably even raise their own legal roadblocks to allow them to stay at Gitmo. [Detainee lawyer Marc] Falkoff notes that many of his clients, while they clearly want to go home, are at least being held under Geneva Convention conditions in Guantánamo. At Thomson, he notes, the plans call for them to be thrown into the equivalent of a “supermax” security prison under near-lockdown conditions.

“As far as our clients are concerned, it’s probably preferable for them to remain at Guantánamo,” he says.

It is hard to escape the conclusion that the Obamis insisted on closing Guantanamo as part of their fixation from the campaign — now embedded in Obama’s governance — with being “not Bush.” As one after another of their rationales collapses, as it has become untenable even to send the large number of detainees from Yemen back home, and as the public grows increasingly wary of shuffling the detainees to the heartland of America, one wonders just how long the Obama team will keep at this.

At some point the invocation of his still-unfulfilled promise to close Guantanamo simply reinforces the image of Obama as an out-of-touch and ineffectual commander in chief in the war against Islamic fundamentalists. Sometimes it’s best to admit that there is a vast difference between campaigning and governing. After all, they dumped the promise to allow C-SPAN to televise health-care negotiations, so why not give up the much dumber idea of closing Guantanamo?

The rationale for closing Guantanamo was always thin. It was, the Obami said, a “recruiting tool” — although terrorists hardly needed yet another reason to slaughter us. They have so many after all and didn’t need Guantanamo to recruit terrorists throughout the 1990s and for 9/11. It had a “bad reputation” — although much of that was based on misinformation, and the Obama team concedes it is a professionally run, humane, and secure facility. Now comes word that the detainees don’t want to leave. After all, even leftist advocacy groups realize the change of venue doesn’t mean much. (A Human Rights Watch rep tells Newsweek “Moving more than 100 detainees — the vast majority of whom would end up being held without charge — to a U.S. facility that is already being dubbed ‘Gitmo North’ will blunt the positive message Obama hoped to send by shutting Guantanamo in the first place.”)

It doesn’t really make any sense if we want to “improve our image” when the detainees and their lawyers now contend that a SuperMax facility is worse than the current rather comfy environs:

[T]he final irony is that many of the detainees may not even want to be transferred to Thomson and could conceivably even raise their own legal roadblocks to allow them to stay at Gitmo. [Detainee lawyer Marc] Falkoff notes that many of his clients, while they clearly want to go home, are at least being held under Geneva Convention conditions in Guantánamo. At Thomson, he notes, the plans call for them to be thrown into the equivalent of a “supermax” security prison under near-lockdown conditions.

“As far as our clients are concerned, it’s probably preferable for them to remain at Guantánamo,” he says.

It is hard to escape the conclusion that the Obamis insisted on closing Guantanamo as part of their fixation from the campaign — now embedded in Obama’s governance — with being “not Bush.” As one after another of their rationales collapses, as it has become untenable even to send the large number of detainees from Yemen back home, and as the public grows increasingly wary of shuffling the detainees to the heartland of America, one wonders just how long the Obama team will keep at this.

At some point the invocation of his still-unfulfilled promise to close Guantanamo simply reinforces the image of Obama as an out-of-touch and ineffectual commander in chief in the war against Islamic fundamentalists. Sometimes it’s best to admit that there is a vast difference between campaigning and governing. After all, they dumped the promise to allow C-SPAN to televise health-care negotiations, so why not give up the much dumber idea of closing Guantanamo?

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Mukasey vs. Obama

Former attorney general Michael Mukasey takes the Obama team to task for its lackadaisical handling of the Christmas Day bombing. He surveys the Obami’s embarrassingly uninformed statements, the cringe-inducing sight of a disengaged president, the contention by John Brennan that there was “no smoking gun” to pinpoint the terrorist, and the ill-conceived policy of releasing detainees to Yemen. But it is the treatment of Abdulmutallab as a criminal suspect that gets his full wrath:

Had Abdulmutallab been turned over immediately to interrogators intent on gathering intelligence, valuable facts could have been gathered and perhaps acted upon. Indeed, a White House spokesman has confirmed that Abdulmutallab did disclose some actionable intelligence before he fell silent on advice of counsel. Nor is it any comfort to be told, as we were, by the senior intelligence adviser referred to above—he of the “no smoking gun”—that we can learn facts from Abdulmutallab as part of a plea bargaining process in connection with his prosecution.

Whatever that official thinks he knows about the plea bargaining process, he certainly should know that the kind of facts that Abdulmutallab might be expected to know have a shelf life that is a lot shorter than the plea bargaining process, assuming such a process ever gets started.

All of this has been done by rote – because early in the administration the Obama team tossed to the side the Bush policies on the war against Islamic fascists and adopted a new model for treating terrorists not as enemy combatants but rather as criminals. Then along comes an actual plot with a real-life terrorist and no thought is given to whether the “not Bush” approach makes any sense. As Mukasey observes, ”No consideration whatsoever appears to have been given to where Abdulmutallab fits in the foreign contingency operation (formerly known as the global war on terror) in which we are engaged.” There is a bizarre quality to the flurry of reviews and reports underway, as administration advisors scurry to figure out how to connect dots and not miss the next bomber. Might they start by getting the maximum information out of the terrorist that chatted for a bit to the FBI and then (with lawyer in hand) decided that discretion was the better course?

Congress and the public may want to know why we are not revisiting the criminal justice model. Well, Mukasey thinks that wouldn’t mesh with the Obami’s priorities:

What the gaffes, the almost comically strained avoidance of such direct terms as “war” and “Islamist terrorism,” and the failure to think of Abdulmutallab as a potential source of intelligence rather than simply as a criminal defendant seem to reflect is that some in the executive branch are focused more on not sounding like their predecessors than they are on finding and neutralizing people who believe it is their religious duty to kill us.

If Mukasey is right, and I think he is, don’t expect the administration to revisit its own flawed decision making. If a shift in the disposition of terrorists is going to happen (at least so long as Obama occupies the Oval Office) it will likely need to come at the behest of Congress, which can, of course, pass legislation, deny or grant funding, and assert its authority to control the jurisdiction of the federal courts. If Obama won’t do his job, it is time then for lawmakers to do theirs.

Former attorney general Michael Mukasey takes the Obama team to task for its lackadaisical handling of the Christmas Day bombing. He surveys the Obami’s embarrassingly uninformed statements, the cringe-inducing sight of a disengaged president, the contention by John Brennan that there was “no smoking gun” to pinpoint the terrorist, and the ill-conceived policy of releasing detainees to Yemen. But it is the treatment of Abdulmutallab as a criminal suspect that gets his full wrath:

Had Abdulmutallab been turned over immediately to interrogators intent on gathering intelligence, valuable facts could have been gathered and perhaps acted upon. Indeed, a White House spokesman has confirmed that Abdulmutallab did disclose some actionable intelligence before he fell silent on advice of counsel. Nor is it any comfort to be told, as we were, by the senior intelligence adviser referred to above—he of the “no smoking gun”—that we can learn facts from Abdulmutallab as part of a plea bargaining process in connection with his prosecution.

Whatever that official thinks he knows about the plea bargaining process, he certainly should know that the kind of facts that Abdulmutallab might be expected to know have a shelf life that is a lot shorter than the plea bargaining process, assuming such a process ever gets started.

All of this has been done by rote – because early in the administration the Obama team tossed to the side the Bush policies on the war against Islamic fascists and adopted a new model for treating terrorists not as enemy combatants but rather as criminals. Then along comes an actual plot with a real-life terrorist and no thought is given to whether the “not Bush” approach makes any sense. As Mukasey observes, ”No consideration whatsoever appears to have been given to where Abdulmutallab fits in the foreign contingency operation (formerly known as the global war on terror) in which we are engaged.” There is a bizarre quality to the flurry of reviews and reports underway, as administration advisors scurry to figure out how to connect dots and not miss the next bomber. Might they start by getting the maximum information out of the terrorist that chatted for a bit to the FBI and then (with lawyer in hand) decided that discretion was the better course?

Congress and the public may want to know why we are not revisiting the criminal justice model. Well, Mukasey thinks that wouldn’t mesh with the Obami’s priorities:

What the gaffes, the almost comically strained avoidance of such direct terms as “war” and “Islamist terrorism,” and the failure to think of Abdulmutallab as a potential source of intelligence rather than simply as a criminal defendant seem to reflect is that some in the executive branch are focused more on not sounding like their predecessors than they are on finding and neutralizing people who believe it is their religious duty to kill us.

If Mukasey is right, and I think he is, don’t expect the administration to revisit its own flawed decision making. If a shift in the disposition of terrorists is going to happen (at least so long as Obama occupies the Oval Office) it will likely need to come at the behest of Congress, which can, of course, pass legislation, deny or grant funding, and assert its authority to control the jurisdiction of the federal courts. If Obama won’t do his job, it is time then for lawmakers to do theirs.

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