Commentary Magazine


Topic: Michael Mukasey

Chuck Hagel’s Desperate Defense

Secretary of Defense Chuck Hagel, during a press conference yesterday, said that it’s “unfair” to judge Sgt. Bowe Bergdahl before all the facts are out and he gets a chance to tell his story.

“Until we get the facts, until we have … a review of all the circumstance,” Mr. Hagel said, “it’s not in the interest of anyone, and certainly I think a bit unfair to Sgt. Bergdahl’s family and to him to presume anything.”

“We don’t do that in the United States,” he continued. “We rely on facts.”

Just for the record: It was the Obama administration, in the person of National Security Adviser Susan Rice, who on Sunday said that Sgt. Bergdahl served his nation with “honor and distinction.” She said this despite the Obama administration having enough facts to know that there was a high probability that Bergdahl was a deserter. So why did Team Obama judge Bergdahl to be a hero (a) before a review of all the circumstances and (b) despite the available evidence? Why are they the ones who presumed something – and presumed something that very much looks to be wrong?
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Secretary of Defense Chuck Hagel, during a press conference yesterday, said that it’s “unfair” to judge Sgt. Bowe Bergdahl before all the facts are out and he gets a chance to tell his story.

“Until we get the facts, until we have … a review of all the circumstance,” Mr. Hagel said, “it’s not in the interest of anyone, and certainly I think a bit unfair to Sgt. Bergdahl’s family and to him to presume anything.”

“We don’t do that in the United States,” he continued. “We rely on facts.”

Just for the record: It was the Obama administration, in the person of National Security Adviser Susan Rice, who on Sunday said that Sgt. Bergdahl served his nation with “honor and distinction.” She said this despite the Obama administration having enough facts to know that there was a high probability that Bergdahl was a deserter. So why did Team Obama judge Bergdahl to be a hero (a) before a review of all the circumstances and (b) despite the available evidence? Why are they the ones who presumed something – and presumed something that very much looks to be wrong?

As for relying on the facts, former Attorney General Michael Mukasey writes 

All the details of how Bergdahl left his unit may have to be teased out in the setting of a court martial, but it has long been known that he was a malcontent who had sent his belongings home well before the day in June 2009 when he left his unit in Afghanistan, that he wrote that the army he served in was a “joke” and that he was ashamed to be an American. Was the president perhaps not aware that desertion is an act viewed with such seriousness under the Uniform Code of Military Justice that in wartime it can carry the death penalty?

Secretary Hagel doesn’t want the rest of us to draw reasonable (if not fully final) judgments based on the empirical evidence we have – including the accounts of many soldiers who served with Bergdahl – for only one reason: To protect the president from the withering criticism he has earned.

To Mr. Hagel I would simply say we don’t need lectures about morality, patriotism, honor, or what it means to uphold American principles from this administration on any matter, and certainly not on this matter. Mr. Obama and his aides once again attempted to deceive us – in this instance turning a likely deserter who may well have cost the lives of his fellow soldiers into an American hero – and in so doing turned a complicated decision into a disgraceful display.  

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What is the Obama Administration Hiding, and Why Are They Hiding It?

Attorney General Eric Holder has a problem with the accuracy of his congressional testimonies.

For example, on May 3, 2011, Holder – when asked when he became aware of the “Fast and Furious” gun-walking scandal, told the House Judiciary Committee, “I’m not sure of the exact date, but I probably heard about Fast and Furious for the first time over the last few weeks.” But as CBS News reported, “Internal Justice Department documents show that at least ten months before that hearing, Holder began receiving frequent memos discussing Fast and Furious.” This forced Holder to confess to Senate Republicans that the Justice Department had provided “inaccurate” information to Congress during his May 3 testimony.

Now comes Retraction Number Two.

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Attorney General Eric Holder has a problem with the accuracy of his congressional testimonies.

For example, on May 3, 2011, Holder – when asked when he became aware of the “Fast and Furious” gun-walking scandal, told the House Judiciary Committee, “I’m not sure of the exact date, but I probably heard about Fast and Furious for the first time over the last few weeks.” But as CBS News reported, “Internal Justice Department documents show that at least ten months before that hearing, Holder began receiving frequent memos discussing Fast and Furious.” This forced Holder to confess to Senate Republicans that the Justice Department had provided “inaccurate” information to Congress during his May 3 testimony.

Now comes Retraction Number Two.

In a memo today from Republican Senator Charles Grassley, we’re informed, “The Justice Department has retracted a second statement made to the Senate Judiciary Committee. During a hearing last week, Attorney General Eric Holder claimed that his predecessor, then-Attorney General Michael Mukasey, had been briefed about gunwalking in Operation Wide Receiver. Now, the Department is retracting that statement and claiming Holder ‘inadvertently’ made that claim to the Committee. The Department’s letter failed to apologize to former Attorney General Mukasey for the false accusation.”

Grassley went on to make this statement:

This is the second time in nearly seven months that the Department has gotten its facts wrong about gunwalking. Attorney General Holder accused Attorney General Mukasey, without producing any evidence, of having been briefed on gunwalking in Wide Receiver. The case Attorney General Mukasey was briefed on, Hernandez, is fundamentally different from both Wide Receiver and Fast and Furious since it involved cooperation with the Mexican government. Attorney General Holder’s retraction should have included an apology to the former Attorney General.

In his eagerness to blame the previous administration, Attorney General Holder got his facts wrong. And his tactic didn’t bring us any closer to understanding how a bad policy evolved and continued. Bad policy is bad policy, regardless of how many administrations carried it out. Ironically, the only document produced yesterday by the Department appears to show that senior officials in the Attorney General’s own department were strategizing about how to keep gunwalking in both Wide Receiver and Fast and Furious under wraps.

So let’s consider where we are. Congress has been misled several times by the Attorney General. We don’t yet know if Holder committed perjury or was simply incompetent in making the claims he did. But we do know that President Obama, who was once a harsh critic of executive privilege when it came to his predecessor, has suddenly discovered a real fondness for it. Obama, in fact, is now invoking executive privilege in order to prevent Congress for getting the documents it needs in order to investigate a program that was, by any measure, a scandalous failure that led to the deaths of innocent Americans and Mexicans.

Which raises these questions: As Alana noted earlier, what is the Obama administration hiding? And why are they hiding it?

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Reading The Longest War

Normally, I like a hanging judge, and I am certainly a big fan of Michael Mukasey, the esteemed former federal judge and attorney general. He is one of the most reasonable, learned, and authoritative voices around on most matters relating to the law — and especially on the war on terror with which he has been closely connected ever since he sentenced the “blind sheikh” to life in prison in 1996. Yet I can’t help but conclude that his review of Peter Bergen’s The Longest War in the Wall Street Journal metes out a harsher verdict than the book deserves.

Having read the book myself — and having interviewed Bergen about it for an upcoming episode of C-SPAN’s Afterwords — I agree with many of Mukasey’s specific criticisms. I, too, disagree with Bergen when he makes withering criticisms of Guantanamo and the use of “enhanced” interrogation techniques on the likes of Khalid Sheikh Mohammad. I, too, disagree with Bergen when he criticizes “renditions” of terrorists and when he claims (in words not quoted by Mukasey) that “by any rational standard” Saddam Hussein’s Iraq “did not pose a real threat to the United States.” The last is a particularly puzzling statement considering that Saddam Hussein had invaded his neighbors twice, schemed to acquire weapons of mass destruction, and had already sparked one war with the United States and numerous lesser military actions.

But by focusing on these dubious assertions, Mukasey gives the impression that Bergen’s book is an anti-Bush screed along the lines of Jane Mayer’s The Dark Side. It isn’t. It’s actually a fairly balanced account of the past decade’s fight against al-Qaeda. Read More

Normally, I like a hanging judge, and I am certainly a big fan of Michael Mukasey, the esteemed former federal judge and attorney general. He is one of the most reasonable, learned, and authoritative voices around on most matters relating to the law — and especially on the war on terror with which he has been closely connected ever since he sentenced the “blind sheikh” to life in prison in 1996. Yet I can’t help but conclude that his review of Peter Bergen’s The Longest War in the Wall Street Journal metes out a harsher verdict than the book deserves.

Having read the book myself — and having interviewed Bergen about it for an upcoming episode of C-SPAN’s Afterwords — I agree with many of Mukasey’s specific criticisms. I, too, disagree with Bergen when he makes withering criticisms of Guantanamo and the use of “enhanced” interrogation techniques on the likes of Khalid Sheikh Mohammad. I, too, disagree with Bergen when he criticizes “renditions” of terrorists and when he claims (in words not quoted by Mukasey) that “by any rational standard” Saddam Hussein’s Iraq “did not pose a real threat to the United States.” The last is a particularly puzzling statement considering that Saddam Hussein had invaded his neighbors twice, schemed to acquire weapons of mass destruction, and had already sparked one war with the United States and numerous lesser military actions.

But by focusing on these dubious assertions, Mukasey gives the impression that Bergen’s book is an anti-Bush screed along the lines of Jane Mayer’s The Dark Side. It isn’t. It’s actually a fairly balanced account of the past decade’s fight against al-Qaeda.

In the first place, many of the criticisms Bergen offers are on the money — for instance, about the failure of the Bush administration to send more troops to trap Osama bin Laden at Tora Bora and about the failure to prepare for the post-invasion phase of the Iraq war. Both assertions should, by now, be fairly uncontroversial even in conservative circles. For that matter, I think Bergen is convincing in arguing that no tangible links between Saddam Hussein and al-Qaeda have been uncovered and that mainstream Islam has rejected al-Qaeda — both assertions that Mukasey questions.

In the second place, Bergen also offers praise for Bush that Mukasey doesn’t quote. He writes, for example, “There is little doubt that some of the measures the Bush administration and Congress took after 9/11 made Americans safer.” Among the positives he cites are the Patriot Act and other enhanced security measures.

Bergen also endorses Bush’s decision to  attack al-Qaeda with the full weight of the U.S. military — not just with law enforcement and intelligence agencies. This led the Economist to criticize Bergen’s book for dismissing “the view of some Europeans that al-Qaeda is essentially a law and order problem—more or less arguing, with odd logic, that since it declared war on America, then America must be at war.”

Unlike Michael Scheuer, the eccentric former CIA analyst whose new book about Osama bin Laden is also reviewed by Mukasey, Bergen does not think that Bush fell into a trap by sending troops into Afghanistan. Although bin Laden has talked about how he was luring America into a guerrilla war, Bergen concludes that this is largely an ex post facto justification and that the invasion of Afghanistan actually did significant damage to al-Qaeda. Moreover, unlike many of those who backed the initial decision to intervene, he strongly supports the current war effort in Afghanistan. Indeed Bergen and I teamed up at an Intelligence Squared US debate not long ago to argue that Afghanistan isn’t a lost cause.

In short, I think Mukasey is being harder on Bergen than the facts of the case warrant. But judge for yourself — read the book and watch my interview with Bergen in which I press him on some of the very points that Mukasey raises.

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Yoo Gets the Last Word

John Yoo is entitled to dance a jig on the grave of Eric Holder’s credibility. And he does. He sums up the ludicrous witch hunt conducted by the Office of Professional Responsibility, which examined whether he and Jay Bybee violated their ethical obligations in providing legal advice on enhanced interrogation techniques:

Rank bias and sheer incompetence infused OPR’s investigation. OPR attorneys, for example, omitted a number of precedents that squarely supported the approach in the memoranda and undermined OPR’s preferred outcome. They declared that no Americans have a right of self-defense against a criminal prosecution, not even when they or their government agents attempt to stop terrorist attacks on the United States. OPR claimed that Congress enjoyed full authority over wartime strategy and tactics, despite decades of Justice Department opinions and practice defending the president’s commander-in-chief power. They accused us of violating ethical standards without ever defining them. They concocted bizarre conspiracy theories about which they never asked us, and for which they had no evidence, even though we both patiently—and with no legal obligation to do so—sat through days of questioning.

OPR’s investigation was so biased, so flawed, and so beneath the Justice Department’s own standards that last week the department’s ranking civil servant and senior ethicist, David Margolis, completely rejected its recommendations.

But who is ultimately responsible for this three-ring circus? The attorney general, of course. “Attorney General Holder could have stopped this sorry mess earlier, just as his predecessor had tried to do.” Yoo then describes the efforts of outgoing Attorney General Michael Mukasey and his deputy Mark Filip to critique the OPR’s sloppy work and end the investigation before they left office. But OPR “decided to run out the clock and push the investigation into the lap of the Obama administration.” And Holder let the investigation churn on and on until it was apparent that its work could not be defended and that the Justice Department risked humiliation were it to follow OPR’s error-ridden recommendation. Finally, David Margolis was brought in to clean up the mess, reverse the recommendations of OPR, and do what Holder could have done on his first day on the job: end the entire inquiry.

Yoo makes a key point: this is not simply about the persecution of two fine lawyers. It’s not even about the untold damage done to the Justice Department, which may find it difficult to find top-flight attorneys willing to stake their careers and savings by rolling the dice that some future administration won’t second-guess and investigate them. No, as Yoo points out, it’s about stopping the Justice Department from actively interfering with the serious business of the fighting a war against Islamic terrorists. (“Ending the Justice Department’s ethics witch hunt not only brought an unjust persecution to an end, but it protects the president’s constitutional ability to fight the enemies that threaten our nation today.”)

Now Holder needs to end the equally spurious reinvestigation of CIA agents who utilized enhanced interrogation methods and whom career prosecutors had previously declined to prosecute. And then he might reconsider whether Mirandizing terrorists and giving jihadists public trials are really helping us win a war. Or is it “criminal warlike activities“? That’s the problem, all right. And if Holder can’t give up the pipe dream of running a war from the ACLU handbook and conducting witch hunts to please the MoveOn.org crowd, Obama should find an attorney general who will.

John Yoo is entitled to dance a jig on the grave of Eric Holder’s credibility. And he does. He sums up the ludicrous witch hunt conducted by the Office of Professional Responsibility, which examined whether he and Jay Bybee violated their ethical obligations in providing legal advice on enhanced interrogation techniques:

Rank bias and sheer incompetence infused OPR’s investigation. OPR attorneys, for example, omitted a number of precedents that squarely supported the approach in the memoranda and undermined OPR’s preferred outcome. They declared that no Americans have a right of self-defense against a criminal prosecution, not even when they or their government agents attempt to stop terrorist attacks on the United States. OPR claimed that Congress enjoyed full authority over wartime strategy and tactics, despite decades of Justice Department opinions and practice defending the president’s commander-in-chief power. They accused us of violating ethical standards without ever defining them. They concocted bizarre conspiracy theories about which they never asked us, and for which they had no evidence, even though we both patiently—and with no legal obligation to do so—sat through days of questioning.

OPR’s investigation was so biased, so flawed, and so beneath the Justice Department’s own standards that last week the department’s ranking civil servant and senior ethicist, David Margolis, completely rejected its recommendations.

But who is ultimately responsible for this three-ring circus? The attorney general, of course. “Attorney General Holder could have stopped this sorry mess earlier, just as his predecessor had tried to do.” Yoo then describes the efforts of outgoing Attorney General Michael Mukasey and his deputy Mark Filip to critique the OPR’s sloppy work and end the investigation before they left office. But OPR “decided to run out the clock and push the investigation into the lap of the Obama administration.” And Holder let the investigation churn on and on until it was apparent that its work could not be defended and that the Justice Department risked humiliation were it to follow OPR’s error-ridden recommendation. Finally, David Margolis was brought in to clean up the mess, reverse the recommendations of OPR, and do what Holder could have done on his first day on the job: end the entire inquiry.

Yoo makes a key point: this is not simply about the persecution of two fine lawyers. It’s not even about the untold damage done to the Justice Department, which may find it difficult to find top-flight attorneys willing to stake their careers and savings by rolling the dice that some future administration won’t second-guess and investigate them. No, as Yoo points out, it’s about stopping the Justice Department from actively interfering with the serious business of the fighting a war against Islamic terrorists. (“Ending the Justice Department’s ethics witch hunt not only brought an unjust persecution to an end, but it protects the president’s constitutional ability to fight the enemies that threaten our nation today.”)

Now Holder needs to end the equally spurious reinvestigation of CIA agents who utilized enhanced interrogation methods and whom career prosecutors had previously declined to prosecute. And then he might reconsider whether Mirandizing terrorists and giving jihadists public trials are really helping us win a war. Or is it “criminal warlike activities“? That’s the problem, all right. And if Holder can’t give up the pipe dream of running a war from the ACLU handbook and conducting witch hunts to please the MoveOn.org crowd, Obama should find an attorney general who will.

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Re: Yoo and Bybee Cleared

More reviews are coming in for the work of the OPR lawyers who doggedly pursued John Yoo and Jay Bybee for two years. A 14-page letter dated January 19, 2009  is available, authored by Former Attorney General Michael Mukasey and his deputy Mark Filip and setting forth many of the identical criticisms that caused David Margolis to reject, finally, OPR’s work.

I also heard from Professor Ron Rotunda, an expert in constitutional law and legal ethics, with whom the Justice Department consulted during the OPR investigation. He was blunt: “I saw the ethics charges that the OPR staff made.  The materials are now publicly available. I think it is the OPR staff who should be investigated, for their shoddy, leak-prone, result-oriented, and — dare we say it — incompetent investigation.”

This unmasking of OPR’s incompetence and bias is not only important in so far as it completely vindicates Yoo and Bybee, though it certainly does that. It is also important because OPR remains a critical entity within the Justice Department. It is this group — whose unprofessionalism and bias have now been amply demonstrated at Yoo and Bybee’s expense – which, for example, is charged with investigation of the New Black Panther Party scandal. Do we suppose they will perform any more credibly in that inquiry? And recall as well that the head of OPR, Mary Patrice Brown, is reportedly under consideration for appointment to the federal bench. Well, I, for one, would much enjoy that confirmation hearing.

But more seriously, Attorney General Eric Holder has an obligation now to clean house and deal with those who leaked during the investigation in violation of their professional obligations. OPR has been entirely discredited and the stench will not dissipate until Holder takes appropriate action to — what is the phrase? — ah, yes, depoliticize and restore the credibility of his Department.

More reviews are coming in for the work of the OPR lawyers who doggedly pursued John Yoo and Jay Bybee for two years. A 14-page letter dated January 19, 2009  is available, authored by Former Attorney General Michael Mukasey and his deputy Mark Filip and setting forth many of the identical criticisms that caused David Margolis to reject, finally, OPR’s work.

I also heard from Professor Ron Rotunda, an expert in constitutional law and legal ethics, with whom the Justice Department consulted during the OPR investigation. He was blunt: “I saw the ethics charges that the OPR staff made.  The materials are now publicly available. I think it is the OPR staff who should be investigated, for their shoddy, leak-prone, result-oriented, and — dare we say it — incompetent investigation.”

This unmasking of OPR’s incompetence and bias is not only important in so far as it completely vindicates Yoo and Bybee, though it certainly does that. It is also important because OPR remains a critical entity within the Justice Department. It is this group — whose unprofessionalism and bias have now been amply demonstrated at Yoo and Bybee’s expense – which, for example, is charged with investigation of the New Black Panther Party scandal. Do we suppose they will perform any more credibly in that inquiry? And recall as well that the head of OPR, Mary Patrice Brown, is reportedly under consideration for appointment to the federal bench. Well, I, for one, would much enjoy that confirmation hearing.

But more seriously, Attorney General Eric Holder has an obligation now to clean house and deal with those who leaked during the investigation in violation of their professional obligations. OPR has been entirely discredited and the stench will not dissipate until Holder takes appropriate action to — what is the phrase? — ah, yes, depoliticize and restore the credibility of his Department.

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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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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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Hiding Behind the Bushies

Bill McGurn notices that the Obami are now seeking to hide behind the skirts of George W. Bush and his national-security team – the very people the Obami excoriated, investigated, and vilified as virtual war criminals. He writes:

Barack Obama defending his war policies by suggesting they merely continue his predecessor’s practices. The defense is illuminating, not least for its implicit recognition that George W. Bush has more credibility on fighting terrorists than does the sitting president.

Mr. Obama’s explanation came in an interview with Katie Couric just before the Super Bowl. Ms. Couric asked about trying Khalid Sheikh Mohammed in New York. After listing some of the difficulties, the president offered a startling defense for civilian trials: “I think that the most important thing for the public to understand,” he told Ms. Couric, “is we’re not handling any of these cases any different than the Bush administration handled them all through 9/11.”

This is a far cry, as McGurn points out, from all the insults hurled by Obama at the Bush team. (“You know—all those Niebuhrian speeches about how America had gone ‘off course,’ ‘shown arrogance and been dismissive,’ and ‘made decisions based on fear rather than foresight,’ thus handing al Qaeda a valuable recruiting tool.”)

And then there are the facts: you see, it’s not true. Former Attorney General Michael Mukasey says that the decision to Mirandize the Christmas Day bomber and classify him as a criminal defendant wasn’t predetermined by any Bush-era policy or guideline: “And there is nothing—zero, zilch, nada—in those guidelines that makes that choice. It is a decision that ought to be made at the highest level, and the heads of our security agencies have testified that it was made without consulting them.”

It is political cowardice plain and simple to pass off on a prior president what is indisputably a policy judgment of this administration. Indeed, the entire episode personifies the core failings of this president — a misguided view of our enemies and the requirements of fighting a war against Islamic fascists, a willingness to employ leftist slogans in place of reasoned policy, a refusal to take responsibility for grievous errors, and an inability to get stories straight when everything goes haywire. The stakes are very high, yet the Obami persist in treating the public as gullible and a near-calamitous national-security failure as a mere PR problem. In that regard, they certainly are very un-Bush.

Bill McGurn notices that the Obami are now seeking to hide behind the skirts of George W. Bush and his national-security team – the very people the Obami excoriated, investigated, and vilified as virtual war criminals. He writes:

Barack Obama defending his war policies by suggesting they merely continue his predecessor’s practices. The defense is illuminating, not least for its implicit recognition that George W. Bush has more credibility on fighting terrorists than does the sitting president.

Mr. Obama’s explanation came in an interview with Katie Couric just before the Super Bowl. Ms. Couric asked about trying Khalid Sheikh Mohammed in New York. After listing some of the difficulties, the president offered a startling defense for civilian trials: “I think that the most important thing for the public to understand,” he told Ms. Couric, “is we’re not handling any of these cases any different than the Bush administration handled them all through 9/11.”

This is a far cry, as McGurn points out, from all the insults hurled by Obama at the Bush team. (“You know—all those Niebuhrian speeches about how America had gone ‘off course,’ ‘shown arrogance and been dismissive,’ and ‘made decisions based on fear rather than foresight,’ thus handing al Qaeda a valuable recruiting tool.”)

And then there are the facts: you see, it’s not true. Former Attorney General Michael Mukasey says that the decision to Mirandize the Christmas Day bomber and classify him as a criminal defendant wasn’t predetermined by any Bush-era policy or guideline: “And there is nothing—zero, zilch, nada—in those guidelines that makes that choice. It is a decision that ought to be made at the highest level, and the heads of our security agencies have testified that it was made without consulting them.”

It is political cowardice plain and simple to pass off on a prior president what is indisputably a policy judgment of this administration. Indeed, the entire episode personifies the core failings of this president — a misguided view of our enemies and the requirements of fighting a war against Islamic fascists, a willingness to employ leftist slogans in place of reasoned policy, a refusal to take responsibility for grievous errors, and an inability to get stories straight when everything goes haywire. The stakes are very high, yet the Obami persist in treating the public as gullible and a near-calamitous national-security failure as a mere PR problem. In that regard, they certainly are very un-Bush.

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Another About-Face?

In a remarkable and entirely welcome reversal, the Eric Holder Justice Department has retreated in its effort to pursue ethics charges against Bush administration lawyers who authored memos on enhanced interrogation. Newsweek reports on the internal probe by the Justice Department’s Office of Professional Responsibility (OPR):

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources.

A draft report prepared in the waning days of the Bush administration by OPR was roundly criticized by departing Attorney General Michael Mukasey and his deputy Mark Filip. As I reported previously:

One former Justice official with knowledge of the matter says, “It is safe to say they had a number of concerns about the draft report both as to the timing and the substance” of the work by OPR. There is, this official reports, “institutional unease by senior career people” at Justice that good faith legal work may place attorneys in peril. “The department won’t be able to attract the best and the brightest. You really want lawyers who will give candid legal advice.”

But the question remains why, and why now, the department has come to its senses. Newsweek pointedly observes: “A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder.” One can speculate that some group of career attorneys, with no love lost for the Bush administration, nevertheless found the prospect of disbarring two of their own for good-faith legal work to be a bridge too far in the partisan wars. And it may be that as the wheels come off the ideology-driven Holder-Obama approach to terrorism (e.g., widespread criticism of the handling of the Christmas Day bombing, reversal of the decision to try KSM in New York), this was one more ill-conceived crusade that the Obami did not need.

Finally, for those who like a bit of Washington intrigue, consider that the White House counsel was until recently Greg Craig, who in his pre-Obama days as an adviser to Sen. Kennedy found the Nicaraguan Sandinistas to be deserving of our support, later helped return Elian Gonzales to the clutches of Fidel Castro, and advised in some capacity Pedro Miguel González, the Panamanian terrorist the U.S. government believed to have murdered two American soldiers. (Yes, that’s a story in and of itself, one that the mainstream media found no interest in reporting.) Craig, often cited as an enthusiastic backer of the “Not Bush” anti-terror policies, is now gone, a victim of the failed attempt to close Guantanamo. Perhaps his departure has removed a powerful advocate for this sort of unseemly mischief. If so, good riddance.

Regardless of the reason, the news that Yoo and Bybee will not be hounded from their profession is positive and long overdue. (The potential loss of their professional licenses has been hanging over them for well over a year.) The notion that lawyers providing detailed legal analysis and a comprehensive review of existing law could later be strung up by state bar associations is nothing short of chilling. As I previously wrote, Ronald Rotunda, a professor of law at Chapman Law School and a specialist in ethics who was consulted by the Justice Department on the OPR’s investigation, found the entire effort to prosecute lawyers for their opinions baffling:

“I can’t imagine you would discipline someone who goes through everything methodically.” He explains, “If you don’t like the particular policies, then change the policies.” He draws an analogy with the attacks on free speech during the Vietnam war and McCarthy eras in which lawyers with particular views were demonized and threatened with loss of their professional licenses.

Well, perhaps some sanity has been restored to the Justice Department. If so, we can finally turn our attention from waging war against the prior administration to determining how to uproot the failed policies of this one. Then on to steering an approach to combating terrorism that is both effective and enjoys the support of the public.

In a remarkable and entirely welcome reversal, the Eric Holder Justice Department has retreated in its effort to pursue ethics charges against Bush administration lawyers who authored memos on enhanced interrogation. Newsweek reports on the internal probe by the Justice Department’s Office of Professional Responsibility (OPR):

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources.

A draft report prepared in the waning days of the Bush administration by OPR was roundly criticized by departing Attorney General Michael Mukasey and his deputy Mark Filip. As I reported previously:

One former Justice official with knowledge of the matter says, “It is safe to say they had a number of concerns about the draft report both as to the timing and the substance” of the work by OPR. There is, this official reports, “institutional unease by senior career people” at Justice that good faith legal work may place attorneys in peril. “The department won’t be able to attract the best and the brightest. You really want lawyers who will give candid legal advice.”

But the question remains why, and why now, the department has come to its senses. Newsweek pointedly observes: “A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder.” One can speculate that some group of career attorneys, with no love lost for the Bush administration, nevertheless found the prospect of disbarring two of their own for good-faith legal work to be a bridge too far in the partisan wars. And it may be that as the wheels come off the ideology-driven Holder-Obama approach to terrorism (e.g., widespread criticism of the handling of the Christmas Day bombing, reversal of the decision to try KSM in New York), this was one more ill-conceived crusade that the Obami did not need.

Finally, for those who like a bit of Washington intrigue, consider that the White House counsel was until recently Greg Craig, who in his pre-Obama days as an adviser to Sen. Kennedy found the Nicaraguan Sandinistas to be deserving of our support, later helped return Elian Gonzales to the clutches of Fidel Castro, and advised in some capacity Pedro Miguel González, the Panamanian terrorist the U.S. government believed to have murdered two American soldiers. (Yes, that’s a story in and of itself, one that the mainstream media found no interest in reporting.) Craig, often cited as an enthusiastic backer of the “Not Bush” anti-terror policies, is now gone, a victim of the failed attempt to close Guantanamo. Perhaps his departure has removed a powerful advocate for this sort of unseemly mischief. If so, good riddance.

Regardless of the reason, the news that Yoo and Bybee will not be hounded from their profession is positive and long overdue. (The potential loss of their professional licenses has been hanging over them for well over a year.) The notion that lawyers providing detailed legal analysis and a comprehensive review of existing law could later be strung up by state bar associations is nothing short of chilling. As I previously wrote, Ronald Rotunda, a professor of law at Chapman Law School and a specialist in ethics who was consulted by the Justice Department on the OPR’s investigation, found the entire effort to prosecute lawyers for their opinions baffling:

“I can’t imagine you would discipline someone who goes through everything methodically.” He explains, “If you don’t like the particular policies, then change the policies.” He draws an analogy with the attacks on free speech during the Vietnam war and McCarthy eras in which lawyers with particular views were demonized and threatened with loss of their professional licenses.

Well, perhaps some sanity has been restored to the Justice Department. If so, we can finally turn our attention from waging war against the prior administration to determining how to uproot the failed policies of this one. Then on to steering an approach to combating terrorism that is both effective and enjoys the support of the public.

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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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Flotsam and Jetsam

Harry Reid seems to say, “Never mind”: “Senate Majority Leader Harry Reid (D-Nev.) is prepared to give in to demands from centrists in order to pass the health-care legislation before Christmas, senators say.Reid indicated at the Democratic Conference meeting on Monday that he would drop a controversial Medicare buy-in provision, which was offered as a replacement to the government-run health insurance option, to win the votes of Sens. Joe Lieberman (I-Conn.) and Ben Nelson (D-Neb.).” All that’s missing is what’s in the deal.

Seems like the public doesn’t want any kind of plan. The RealClearPolitics average shows that 38 percent approve of ObamaCare and 53.3 percent disapprove.

Tevi Troy pulls off a Chanukah miracle — getting the White House to cough up 150 more invites to the White House Chanukah party.

The New York Post (h/t Ben Smith) reports that “Marc Mukasey, the son of Bush administration Attorney General Michael Mukasey, is mulling mounting a challenge to Democratic Sen. Kirsten Gillibrand.” Bet we’d have some fun debates on the KSM trial.

Another inconvenient poll: “With world leaders debating how to address climate change in Copenhagen and the U.S. Senate poised to take up a climate bill in the coming months, a new CBS News/New York Times poll finds that just 37 percent of Americans believe the issue should be a priority for government leaders. That’s a significant drop from April of 2007, when 52 percent of those surveyed said the issue should be a high priority.” Apparently, these people want jobs and economic prosperity: “A clear majority – 61 percent – say stimulating the economy should come first. Only 29 percent say protecting the environment is more important.”

The Marx Brothers hold a climate-control conference.

And the scientific clown show continues: Al Gore’s prediction of an ice-free north polar cap in five years isn’t supported by any facts. “The climatologist whose work Mr Gore was relying upon dropped the former Vice-President in the water with an icy blast. ‘It’s unclear to me how this figure was arrived at,’ Dr. [Wieslav] Maslowski said. ‘I would never try to estimate likelihood at anything as exact as this.’ ” Gore says it’s close enough for made-up science — er — for scaring the public  — er — for what he’s doing.

“Cramdown” mortgage legislation is also going down for the count. Almost like there isn’t a majority for extreme antibusiness regulation.

Bill McGurn thinks actions count more than words: “In wartime, people soon tire of lofty words that do not seem borne out by events. In September 2001, with the twin towers still smoldering and the Pentagon wounded, President Bush delivered a war address to a joint session of Congress (which I had no part in, so am free to praise) that ranks with the best of FDR. Whether that speech ever receives its full due depends in part on how this war ends. The same goes for President Obama. At West Point and Oslo, he spoke to the challenge of defending our freedom against hard men with no moral limit on what they are willing to do to crush it. The irony is that whether these fine speeches are remembered by history depends on a word he didn’t use in either one: victory.”

Harry Reid seems to say, “Never mind”: “Senate Majority Leader Harry Reid (D-Nev.) is prepared to give in to demands from centrists in order to pass the health-care legislation before Christmas, senators say.Reid indicated at the Democratic Conference meeting on Monday that he would drop a controversial Medicare buy-in provision, which was offered as a replacement to the government-run health insurance option, to win the votes of Sens. Joe Lieberman (I-Conn.) and Ben Nelson (D-Neb.).” All that’s missing is what’s in the deal.

Seems like the public doesn’t want any kind of plan. The RealClearPolitics average shows that 38 percent approve of ObamaCare and 53.3 percent disapprove.

Tevi Troy pulls off a Chanukah miracle — getting the White House to cough up 150 more invites to the White House Chanukah party.

The New York Post (h/t Ben Smith) reports that “Marc Mukasey, the son of Bush administration Attorney General Michael Mukasey, is mulling mounting a challenge to Democratic Sen. Kirsten Gillibrand.” Bet we’d have some fun debates on the KSM trial.

Another inconvenient poll: “With world leaders debating how to address climate change in Copenhagen and the U.S. Senate poised to take up a climate bill in the coming months, a new CBS News/New York Times poll finds that just 37 percent of Americans believe the issue should be a priority for government leaders. That’s a significant drop from April of 2007, when 52 percent of those surveyed said the issue should be a high priority.” Apparently, these people want jobs and economic prosperity: “A clear majority – 61 percent – say stimulating the economy should come first. Only 29 percent say protecting the environment is more important.”

The Marx Brothers hold a climate-control conference.

And the scientific clown show continues: Al Gore’s prediction of an ice-free north polar cap in five years isn’t supported by any facts. “The climatologist whose work Mr Gore was relying upon dropped the former Vice-President in the water with an icy blast. ‘It’s unclear to me how this figure was arrived at,’ Dr. [Wieslav] Maslowski said. ‘I would never try to estimate likelihood at anything as exact as this.’ ” Gore says it’s close enough for made-up science — er — for scaring the public  — er — for what he’s doing.

“Cramdown” mortgage legislation is also going down for the count. Almost like there isn’t a majority for extreme antibusiness regulation.

Bill McGurn thinks actions count more than words: “In wartime, people soon tire of lofty words that do not seem borne out by events. In September 2001, with the twin towers still smoldering and the Pentagon wounded, President Bush delivered a war address to a joint session of Congress (which I had no part in, so am free to praise) that ranks with the best of FDR. Whether that speech ever receives its full due depends in part on how this war ends. The same goes for President Obama. At West Point and Oslo, he spoke to the challenge of defending our freedom against hard men with no moral limit on what they are willing to do to crush it. The irony is that whether these fine speeches are remembered by history depends on a word he didn’t use in either one: victory.”

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Why Are We Doing This?

Former Attorney General Michael Mukasey had tough words for the mind-numbingly misguided decision to move KSM to New York for trial. For starters, he thinks Obama has increased the danger of a terror incident in New York:

“The question is not whether they’re going to escape. The question is whether, not only that particular facility, but the city [at] large, will then become the focus for mischief in the form of murder by adherents of Khalid Sheikh Mohammed — whether this raises the odds that it will. I would suggest to you that it raises them very high.”

And as for the rationale for moving the 9/11 mastermind to a civilian court, Mukasey explains:

“The plan seems to be to abandon the view that we’re in a war,” Mukasey said. “I can’t see anything good coming out of this. I certainly can’t see anything good coming out of it very quickly. And it think it would have been far preferable to try these case[s] in the venue that Congress created for trying and where they were about to be tried.”

Mukasey, a former federal judge who oversaw cases relating to the 1993 World Trade Center attacks, warned that a civilian court trial for the Sept. 11 plotters could produce “a cornucopia of information for those still at large and a circus for those still in custody.”

Mukasey is no political partisan. What he is, however, is the most experienced and knowledgeable judge in America on trying terrorists in civilian court. Perhaps the Obami should have sought out and listened to his counsel. Instead, they’ve come to believe the claptrap of the ACLU and the leftist lawyers who now populate the Justice Department.

They are out to prove a point about our traditions or legal system, or something. But wait. We didn’t try German soldiers in federal court, nor combatants in any other war. And our legal system currently provides for military tribunals, where the U.S.S. Cole terrorists will be tried. So what exactly is the reason for all this? When he returns from bowing to the emperor of Japan, the president, we suppose, can opine on American traditions and historical precedent.

Former Attorney General Michael Mukasey had tough words for the mind-numbingly misguided decision to move KSM to New York for trial. For starters, he thinks Obama has increased the danger of a terror incident in New York:

“The question is not whether they’re going to escape. The question is whether, not only that particular facility, but the city [at] large, will then become the focus for mischief in the form of murder by adherents of Khalid Sheikh Mohammed — whether this raises the odds that it will. I would suggest to you that it raises them very high.”

And as for the rationale for moving the 9/11 mastermind to a civilian court, Mukasey explains:

“The plan seems to be to abandon the view that we’re in a war,” Mukasey said. “I can’t see anything good coming out of this. I certainly can’t see anything good coming out of it very quickly. And it think it would have been far preferable to try these case[s] in the venue that Congress created for trying and where they were about to be tried.”

Mukasey, a former federal judge who oversaw cases relating to the 1993 World Trade Center attacks, warned that a civilian court trial for the Sept. 11 plotters could produce “a cornucopia of information for those still at large and a circus for those still in custody.”

Mukasey is no political partisan. What he is, however, is the most experienced and knowledgeable judge in America on trying terrorists in civilian court. Perhaps the Obami should have sought out and listened to his counsel. Instead, they’ve come to believe the claptrap of the ACLU and the leftist lawyers who now populate the Justice Department.

They are out to prove a point about our traditions or legal system, or something. But wait. We didn’t try German soldiers in federal court, nor combatants in any other war. And our legal system currently provides for military tribunals, where the U.S.S. Cole terrorists will be tried. So what exactly is the reason for all this? When he returns from bowing to the emperor of Japan, the president, we suppose, can opine on American traditions and historical precedent.

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Here’s A Good Example

Barack Obama was one of 29 U.S. Senators who opposed cloture on a key Foreign Intelligence Surveillance Act (FISA) vote today. The specific issue: whether to extend immunity to telecommunications companies that assisted the government in terrorist surveillance. John McCain voted in favor of cloture and for immunity along with all other Republicans (Lindsey Graham was absent), the increasingly sensible Dianne Feinstein (she voted to confirm Attorney General Michael Mukasey and Fifth Circuit Judge Leslie Southwick despite the protestations of the civil rights lobby), and a number of Red (e.g. Bayh, Johnson, McCaskill, Webb) and Blue (e.g. Mikulski, Casey) state Democrats. But not Obama. Doesn’t this say something about his noncentrist views on national security? To whom was he “reaching out” on this vote and what new type of politics was he practicing? Or was he voting with the most extreme elements of his party? And what precisely is the rationale for denying immunity to companies which in good faith aided in national security endeavors? This might be a fruitful line of inquiry for the soon to be Republican nominee. (Oh, and Hillary Clinton? She did not vote.)

Barack Obama was one of 29 U.S. Senators who opposed cloture on a key Foreign Intelligence Surveillance Act (FISA) vote today. The specific issue: whether to extend immunity to telecommunications companies that assisted the government in terrorist surveillance. John McCain voted in favor of cloture and for immunity along with all other Republicans (Lindsey Graham was absent), the increasingly sensible Dianne Feinstein (she voted to confirm Attorney General Michael Mukasey and Fifth Circuit Judge Leslie Southwick despite the protestations of the civil rights lobby), and a number of Red (e.g. Bayh, Johnson, McCaskill, Webb) and Blue (e.g. Mikulski, Casey) state Democrats. But not Obama. Doesn’t this say something about his noncentrist views on national security? To whom was he “reaching out” on this vote and what new type of politics was he practicing? Or was he voting with the most extreme elements of his party? And what precisely is the rationale for denying immunity to companies which in good faith aided in national security endeavors? This might be a fruitful line of inquiry for the soon to be Republican nominee. (Oh, and Hillary Clinton? She did not vote.)

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James Risen in Chains

Is the Justice Department subpoena to James Risen of the New York Times a threat to the rule of law? Or, as I argue in the latest Weekly Standard, is the subpoena amply justified?

Liberals and the Left have been surprisingly mute about the issue of leaks of classified information and the Justice Department’s response. A recent exception comes from Glenn Greenwald of Salon, who is highly alarmed by the DOJ’s action:

Grand Jury Subpoenas such as the one issued to Risen have as their principal purpose shutting off that avenue of learning about government wrongdoing — the sole remaining avenue for a country plagued by a supine, slothful, vapid press and an indescribably submissive Congress.

Greenwald’s analysis is worth reading in full. He offers some interesting speculation about why this issue is coming to the fore now, most of it centering on the appointment of Michael Mukasey as Attorney General. But I found the most fascinating portion of his column to be the blank spot in its very center.

Greenwald is a constitutional lawyer, but he offers not a word of discussion about the legal and constitutional issues involved in the publication of classified information by journalists. This left me curious to know several things:

1.  Could it ever be a crime, in his view, for a “whistleblower” to disclose classified information?

2.  Could there ever be a legitimate reason for the Justice Department to issue a subpoena to a journalist (even the shield law making its way through Congress has a national-security exception, too narrowly drawn in my view, but an exception all the same)?

3.  Could there ever be a legitimate reason, in his view, for the Justice Department to prosecute a journalist who publishes classified information?

Perhaps Greenwald will come up with some answers at Salon and we will see the beginnings of a proper debate.

Is the Justice Department subpoena to James Risen of the New York Times a threat to the rule of law? Or, as I argue in the latest Weekly Standard, is the subpoena amply justified?

Liberals and the Left have been surprisingly mute about the issue of leaks of classified information and the Justice Department’s response. A recent exception comes from Glenn Greenwald of Salon, who is highly alarmed by the DOJ’s action:

Grand Jury Subpoenas such as the one issued to Risen have as their principal purpose shutting off that avenue of learning about government wrongdoing — the sole remaining avenue for a country plagued by a supine, slothful, vapid press and an indescribably submissive Congress.

Greenwald’s analysis is worth reading in full. He offers some interesting speculation about why this issue is coming to the fore now, most of it centering on the appointment of Michael Mukasey as Attorney General. But I found the most fascinating portion of his column to be the blank spot in its very center.

Greenwald is a constitutional lawyer, but he offers not a word of discussion about the legal and constitutional issues involved in the publication of classified information by journalists. This left me curious to know several things:

1.  Could it ever be a crime, in his view, for a “whistleblower” to disclose classified information?

2.  Could there ever be a legitimate reason for the Justice Department to issue a subpoena to a journalist (even the shield law making its way through Congress has a national-security exception, too narrowly drawn in my view, but an exception all the same)?

3.  Could there ever be a legitimate reason, in his view, for the Justice Department to prosecute a journalist who publishes classified information?

Perhaps Greenwald will come up with some answers at Salon and we will see the beginnings of a proper debate.

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Loose Lips Sink Newspapers

Finally, action. A federal prosecutor has issued a subpoena to James Risen of the New York Times, one of two reporters at the paper who compromised the National Security Agency’s (NSA) Terrorist Surveillance Program in December 2005.

Risen himself does not appear to be under investigation. Indeed, prosecutors do not appear to be investigating the NSA leak at this moment. Rather, they are seeking the confidential sources that led to the disclosure of an entirely different secret, one that did not appear in Risen’s newspaper, but only in a chapter of Risen’s book, State of War. It reported that the CIA had attempted to infiltrate Iran’s nuclear program and described a number of other highly classified details about covert efforts in that area.

Why is this investigation proceeding now? Connecting the Dots has no inside information. But Connecting the Dots was seated at the same table as Michael Mukasey and his wife at two dinners in the last three years, back when the future Attorney General was still a mere federal judge. The leaks in the New York Times did not come up for discussion, but Mukasey made plain he was a close reader of COMMENTARY.

Did he read a certain article in COMMENTARY entitled Has the New York Times Violated the Espionage Act? That’s a question James Risen — and Bill Keller, too — should be thinking about.

Finally, action. A federal prosecutor has issued a subpoena to James Risen of the New York Times, one of two reporters at the paper who compromised the National Security Agency’s (NSA) Terrorist Surveillance Program in December 2005.

Risen himself does not appear to be under investigation. Indeed, prosecutors do not appear to be investigating the NSA leak at this moment. Rather, they are seeking the confidential sources that led to the disclosure of an entirely different secret, one that did not appear in Risen’s newspaper, but only in a chapter of Risen’s book, State of War. It reported that the CIA had attempted to infiltrate Iran’s nuclear program and described a number of other highly classified details about covert efforts in that area.

Why is this investigation proceeding now? Connecting the Dots has no inside information. But Connecting the Dots was seated at the same table as Michael Mukasey and his wife at two dinners in the last three years, back when the future Attorney General was still a mere federal judge. The leaks in the New York Times did not come up for discussion, but Mukasey made plain he was a close reader of COMMENTARY.

Did he read a certain article in COMMENTARY entitled Has the New York Times Violated the Espionage Act? That’s a question James Risen — and Bill Keller, too — should be thinking about.

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Michael Scheuer Watch #10: The Cheese Danish Affair and Ron Paul

Our hero has surfaced. As I predicted, he has been compelled to move from the mainstream to the margins. The latest sighting has occurred not in one of the mass-media outlets where until recently he had regularly appeared, but on a website called The Jingoist: When the Righteous Make the Wicked Quake. (The post has evidently been removed but is available here.) 

Recent articles on The Jingoist bear such titles as:

Zionists Using Holocaust to Silence People – about how the “Chief Rabbi of the Orthodox Jewish Community in Austria, Moishe Arye Friedman, believes that the ‘Zionist regime is using the Holocaust concept as a tool and weapon to silence people.’”

French President Accused of Working for Israeli Intelligence – about how  “Sarco the Sayan” (Hebrew for helper) is “one of the thousands of Jewish citizens of countries other than Israel who cooperate with [Mossad case-officers].”

New AG Nominee: Zionist Dream Come True – about how Michael Mukasey, once confirmed as Attorney General, will work “with his buds in the Senate, Schumer, Feinstein and Specter . . . to smother any attempts to seek the truth on the actual perpetrators behind 9/11” and is likely to “take his oath of office with his hand on the Torah and not the KJV Bible.”

Now that we illuminati have illuminated the stage from which our hero wishes to speak, let us turn to the substance of his comments.

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Our hero has surfaced. As I predicted, he has been compelled to move from the mainstream to the margins. The latest sighting has occurred not in one of the mass-media outlets where until recently he had regularly appeared, but on a website called The Jingoist: When the Righteous Make the Wicked Quake. (The post has evidently been removed but is available here.) 

Recent articles on The Jingoist bear such titles as:

Zionists Using Holocaust to Silence People – about how the “Chief Rabbi of the Orthodox Jewish Community in Austria, Moishe Arye Friedman, believes that the ‘Zionist regime is using the Holocaust concept as a tool and weapon to silence people.’”

French President Accused of Working for Israeli Intelligence – about how  “Sarco the Sayan” (Hebrew for helper) is “one of the thousands of Jewish citizens of countries other than Israel who cooperate with [Mossad case-officers].”

New AG Nominee: Zionist Dream Come True – about how Michael Mukasey, once confirmed as Attorney General, will work “with his buds in the Senate, Schumer, Feinstein and Specter . . . to smother any attempts to seek the truth on the actual perpetrators behind 9/11” and is likely to “take his oath of office with his hand on the Torah and not the KJV Bible.”

Now that we illuminati have illuminated the stage from which our hero wishes to speak, let us turn to the substance of his comments.

Based upon a story in the Danish paper Politiken, I had raised questions about Scheuer’s role in igniting a political firestorm recently in Denmark by “disclosing” – my word – information about the CIA’s extraordinary rendition of Talat Fouad Qassem, an Egyptian extremist, who had been granted political asylum in Denmark, but was seized by the CIA while visiting Croatia, shipped to Egypt, and executed.

Among the questions I asked were whether the information involved was classified and, if it was classified, how such disclosures differed from leaks in the past by renegade CIA agent Philip Agee, and more recently, by Larry Franklin, who pleaded guilty to violations of statutes governing the improper disclosure of classified information.

On The Jingoist, our hero points out that the information in question was not classified; indeed, he shows that there had been a number of press reports detailing this episode in the past, one of them appearing in the Associated Press as far back as 1995.

Connecting the Dots, which seeks to construct as accurate as possible a picture of matters pertaining to intelligence (and other issues), will happily acknowledge that it was remiss in having raised a question about our hero to which the answer turned out to be readily available in the public domain.  Let us give Scheuer his due. He is right about this matter and Connecting the Dots was wrong in suggesting that he had done something wrong and/or illegal with regard to the Danish affair. 

But Connecting the Dots was not wrong in one thing: namely, predicting that no matter what the issue under discussion, be it Denmark or cheese Danish, our hero would inevitably bring it around to his true obsession, the state of Israel and American Jews who support the state of Israel.

On The Jingoist, he has done precisely that by arguing that I, along with “Goebbels-wannabes at the National Review, the American Thinker, and other organs of the Israel-first media” are guilty of promulgating a “Big Lie.” He goes on to explain:

Their tarting-up of the [Talat] rendition operation . . . is just part of their ongoing attempt to discredit the case and to try to convince Americans that U.S. and Israeli interests are identical, and so spying on America for Israel – and suborning American citizens to commit treason – is really an okay and even admirable activity.

In response to my suggestion that he has a habit of casting aspersions on American Jews, Scheuer responds:

I do not cast aspersions, I forthrightly damn, and pray that God damns, any American – Jew, Catholic, Evangelical, Irish, German, Hindu, hermaphrodite, thespian, or otherwise – who flogs the insane idea that American and Israeli interests are one and the same.

Let us continue connecting the dots. A man who speaks in this language, and who does so on a flagrantly anti-Semitic crackpot website, was in charge of the CIA’s efforts to counter Osama bin Laden. More recently, Scheuer has been involved with the presidential campaign of maverick Republican Ron Paul. Back in May they appeared together at the podium of the National Press Club in an event billed as an opportunity to “educate former New York Mayor Rudy Giuliani on foreign policy.”

Here are several more dots to connect:

1. What does Michael Scheuer’s posting on The Jingoist tell us about him? 

2. What does it tell us about the officials at the CIA who put him in charge of countering Osama bin Laden?

3. What does it tell us about the television networks that continue to employ him as an expert consultant?

4. Is Scheuer currently an official or unofficial adviser to Ron Paul?

5. If elected, would President Paul appoint Scheuer to run the CIA?

A complete guide to other items in this Michael Scheuer Watch series can be found here

 

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Sullivan’s Garbles

Andrew Sullivan accuses me of “astonishing ignorance” because in an earlier post on waterboarding I said that “as universally understood, torture is the infliction of physical injury through the application of physical force.” He quotes the phrase “severe mental or physical pain or suffering” from U.S. law to prove me ignorant. Once again, as ever, Sullivan asserts that what he believes is law when it is, in fact, nothing of the kind. Here is the applicable language under U.S. statute:

“Severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

It is true that the law speaks of the “threatened infliction” of “severe physical pain and suffering.” But this is an extraordinarily broad phrase that could indicate that a nine-year-old bully who terrifies another kid on the playground by threatening to rip his arm off is guilty of torture.

Such statute language does not clarify; it muddies, as legal language often muddies. If someone says, “I am going to kill you,” and by so doing causes fear in the person to whom he says it, is that torture? Clearly not, though the fear experienced by the person might be severe.

The question is whether the panic induced by waterboarding rises to the level of lawlessness as defined by that statute and by international law. And though Sullivan refuses to acknowledge this, that is a debatable proposition, as demonstrated by the simple fact that many people of good will (like Michael Mukasey) are unable to come to a conclusion about it as definitive (and definitively self-righteous) as Sullivan’s.

What is not debatable, however, is what everyone, even those of us whom Sullivan feels free to liken to Nazis who make the “arguments of the Gestapo,” knows to be torture without question, which is doing physical injury to someone without an ability to defend himself in any way, or mental injury so severe as to cause impairment.

Andrew Sullivan accuses me of “astonishing ignorance” because in an earlier post on waterboarding I said that “as universally understood, torture is the infliction of physical injury through the application of physical force.” He quotes the phrase “severe mental or physical pain or suffering” from U.S. law to prove me ignorant. Once again, as ever, Sullivan asserts that what he believes is law when it is, in fact, nothing of the kind. Here is the applicable language under U.S. statute:

“Severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

It is true that the law speaks of the “threatened infliction” of “severe physical pain and suffering.” But this is an extraordinarily broad phrase that could indicate that a nine-year-old bully who terrifies another kid on the playground by threatening to rip his arm off is guilty of torture.

Such statute language does not clarify; it muddies, as legal language often muddies. If someone says, “I am going to kill you,” and by so doing causes fear in the person to whom he says it, is that torture? Clearly not, though the fear experienced by the person might be severe.

The question is whether the panic induced by waterboarding rises to the level of lawlessness as defined by that statute and by international law. And though Sullivan refuses to acknowledge this, that is a debatable proposition, as demonstrated by the simple fact that many people of good will (like Michael Mukasey) are unable to come to a conclusion about it as definitive (and definitively self-righteous) as Sullivan’s.

What is not debatable, however, is what everyone, even those of us whom Sullivan feels free to liken to Nazis who make the “arguments of the Gestapo,” knows to be torture without question, which is doing physical injury to someone without an ability to defend himself in any way, or mental injury so severe as to cause impairment.

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Waterboarding, Elsewhere

My friend Bing West, a former Marine and assistant secretary of defense who currently writes for The Atlantic, makes some important points in the Small Wars Journal regarding the contentious issue of waterboarding.

Much of the debate so far has focused on whether American interrogators should use harsh techniques such as waterboarding on high-level terrorist detainees. Michael Mukasey’s failure to flatly state that such practices are illegal has put his bid to be attorney general in serious jeopardy. Whatever you think of waterboarding and the like, there is another side to this issue which isn’t getting much attention, one that involves the actions of our allies.

West notes that when he was an adviser in South Vietnam in 1966 he saw a village police chief named Thanh using “what is now called waterboarding, rubbing lye soap into a wet cloth and placing it across the face of the prisoner. I never saw a prisoner die or not be able to walk out of that room. But they talked. I reported it and our orders were to keep the Marines in our Combined Action Platoon out of that room.”

Our advisers in Iraq don’t have the same option of turning a blind eye. As West notes: “Today, 40 years later, the order would be for the American adviser to physically stop Thanh and to bring him up on charges.” As West notes, that is a misguided attempt to impose our cultural norms elsewhere—you might even call it “cultural imperialism.”

“Neither our advisers nor our military units are involved in waterboarding or other such techniques, be they labeled ‘torture’, or ‘harsh interrogation’ or whatever the vernacular,” he notes. But we should be more tolerant if our allies, who are fighting for their lives and that of their families, practice a harsher brand of counterinsurgency than we’re comfortable with.

My friend Bing West, a former Marine and assistant secretary of defense who currently writes for The Atlantic, makes some important points in the Small Wars Journal regarding the contentious issue of waterboarding.

Much of the debate so far has focused on whether American interrogators should use harsh techniques such as waterboarding on high-level terrorist detainees. Michael Mukasey’s failure to flatly state that such practices are illegal has put his bid to be attorney general in serious jeopardy. Whatever you think of waterboarding and the like, there is another side to this issue which isn’t getting much attention, one that involves the actions of our allies.

West notes that when he was an adviser in South Vietnam in 1966 he saw a village police chief named Thanh using “what is now called waterboarding, rubbing lye soap into a wet cloth and placing it across the face of the prisoner. I never saw a prisoner die or not be able to walk out of that room. But they talked. I reported it and our orders were to keep the Marines in our Combined Action Platoon out of that room.”

Our advisers in Iraq don’t have the same option of turning a blind eye. As West notes: “Today, 40 years later, the order would be for the American adviser to physically stop Thanh and to bring him up on charges.” As West notes, that is a misguided attempt to impose our cultural norms elsewhere—you might even call it “cultural imperialism.”

“Neither our advisers nor our military units are involved in waterboarding or other such techniques, be they labeled ‘torture’, or ‘harsh interrogation’ or whatever the vernacular,” he notes. But we should be more tolerant if our allies, who are fighting for their lives and that of their families, practice a harsher brand of counterinsurgency than we’re comfortable with.

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Victims of Our Own Success

It is rare that an article in one part of the newspaper refutes another article just a few pages later, but that’s the case with the New York Times today. The op-ed page features this essay by federal Judge John C. Coughenour criticizing Attorney General nominee Michael Mukasey for arguing that the ordinary criminal legal system is not up to the challenge of handling terrorism prosecutions. “Courts,” Coughenour writes, “are equipped to meet this challenge.”

That’s not the impression you get from page A3 of the Times, which features this article on the trial of the suspects behind the terrible Madrid train bombing that killed 191 people and wounded another 1,800 in 2004. Three defendants were convicted of murder, but seven others were acquitted and eighteen others were found guilty of lesser charges. Spaniards were shocked that those who were viewed as the masterminds of this attack got off so lightly. The following passages from reporter Victoria Burnett’s dispatch stand in stark counterpart to Judge Coughenour’s contentions:

The counterterrorism experts said the verdicts reflected the challenges faced by police forces and judges as they seek to imprison those accused of international terrorism: the preponderance of circumstantial evidence rather than concrete proof; problems with evidence translated from Arabic and with evidence collected by other countries; unreliable witnesses; and the absence of confessions — none of the 28 defendants confessed.

“It is a point of pride to be able to try people in a courtroom, with full constitutional guarantees,” Fernando Reinares, an expert in international terrorism at the Royal Elcano Institute, said. “But in Spain there is space for debate about whether we need to adapt our judicial legislation and culture to confront international Islamist terrorism.”

Roland Jacquard, head of the International Observatory on Terrorism in Paris, said prosecutors had encountered similar difficulties in countries like Germany, where people accused of complicity in the Sept. 11, 2001, attacks on the United States were acquitted for lack of evidence.

He said: “We need to find a legal formula that would give evidence of the masterminds’ responsibility, and not only of the responsibility of the operatives. It is always easier to arrest someone who has imprints of explosives on his hands.”

So even Europeans are waking up to the fact that they need a new “legal formula” and that they have to “adapt [their] judicial legislation and culture to confront international Islamist terrorism.” If this is becoming obvious in Europe, why is it so many Americans are missing the point?

The only answer I can think of is complacency: We have become victims of our own success in the war on terrorism. Let us hope it doesn’t take another September 11 to awaken us to the urgency of the threat we face and the inadequacy of normal law enforcement procedures for dealing with it.

It is rare that an article in one part of the newspaper refutes another article just a few pages later, but that’s the case with the New York Times today. The op-ed page features this essay by federal Judge John C. Coughenour criticizing Attorney General nominee Michael Mukasey for arguing that the ordinary criminal legal system is not up to the challenge of handling terrorism prosecutions. “Courts,” Coughenour writes, “are equipped to meet this challenge.”

That’s not the impression you get from page A3 of the Times, which features this article on the trial of the suspects behind the terrible Madrid train bombing that killed 191 people and wounded another 1,800 in 2004. Three defendants were convicted of murder, but seven others were acquitted and eighteen others were found guilty of lesser charges. Spaniards were shocked that those who were viewed as the masterminds of this attack got off so lightly. The following passages from reporter Victoria Burnett’s dispatch stand in stark counterpart to Judge Coughenour’s contentions:

The counterterrorism experts said the verdicts reflected the challenges faced by police forces and judges as they seek to imprison those accused of international terrorism: the preponderance of circumstantial evidence rather than concrete proof; problems with evidence translated from Arabic and with evidence collected by other countries; unreliable witnesses; and the absence of confessions — none of the 28 defendants confessed.

“It is a point of pride to be able to try people in a courtroom, with full constitutional guarantees,” Fernando Reinares, an expert in international terrorism at the Royal Elcano Institute, said. “But in Spain there is space for debate about whether we need to adapt our judicial legislation and culture to confront international Islamist terrorism.”

Roland Jacquard, head of the International Observatory on Terrorism in Paris, said prosecutors had encountered similar difficulties in countries like Germany, where people accused of complicity in the Sept. 11, 2001, attacks on the United States were acquitted for lack of evidence.

He said: “We need to find a legal formula that would give evidence of the masterminds’ responsibility, and not only of the responsibility of the operatives. It is always easier to arrest someone who has imprints of explosives on his hands.”

So even Europeans are waking up to the fact that they need a new “legal formula” and that they have to “adapt [their] judicial legislation and culture to confront international Islamist terrorism.” If this is becoming obvious in Europe, why is it so many Americans are missing the point?

The only answer I can think of is complacency: We have become victims of our own success in the war on terrorism. Let us hope it doesn’t take another September 11 to awaken us to the urgency of the threat we face and the inadequacy of normal law enforcement procedures for dealing with it.

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Michael Scheuer Watch #4: The Danish Affair

An entry here entitled Michael Scheuer: Innocent Until Proven Guilty seems to have rattled the former CIA official’s cage. He has posted three separate comments in reply.

Herewith some comments about his comments.

In his 2004 book, Imperial Hubris, Scheuer made a point of stressing how vital it was for CIA analysts like himself always to “check the checkables”—a phrase he used incessantly in that volume. In writing about Imperial Hubris in COMMENTARY, I noted then that he himself had a very hard time with the checkables, not least in the realm of spelling. L. Paul Bremer III was rendered in the book as Paul Bremmer, General Curtis LeMay as General Lemay, the foreign-policy analysts Edward Luttwak and Adam Garfinkle as Lutwack and Garfinckle, etc.

In his comments posted here on Connecting the Dots, Scheuer still has trouble with the same class of checkables. And, along with misspellings, he does some far more noteworthy things.

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An entry here entitled Michael Scheuer: Innocent Until Proven Guilty seems to have rattled the former CIA official’s cage. He has posted three separate comments in reply.

Herewith some comments about his comments.

In his 2004 book, Imperial Hubris, Scheuer made a point of stressing how vital it was for CIA analysts like himself always to “check the checkables”—a phrase he used incessantly in that volume. In writing about Imperial Hubris in COMMENTARY, I noted then that he himself had a very hard time with the checkables, not least in the realm of spelling. L. Paul Bremer III was rendered in the book as Paul Bremmer, General Curtis LeMay as General Lemay, the foreign-policy analysts Edward Luttwak and Adam Garfinkle as Lutwack and Garfinckle, etc.

In his comments posted here on Connecting the Dots, Scheuer still has trouble with the same class of checkables. And, along with misspellings, he does some far more noteworthy things.

Thus, in one of his three replies, Scheuer suggests that I am disloyal to the United States: “only a small part of Mr. Scheonfeld [sic]…may be American.” He suggests that, along with me, Norman Podhoretz, Max Boot, James Woolsley [sic], someone simply identified as “Pipes” (Richard or Daniel?), and someone simply identified as “Horowitz,” have pushed the United States into wasting American “treasure” and getting our “soldier-children killed in fighting other peoples’ wars, especially other peoples’ religious wars.”

Presumably, in referring to “religious wars,” Scheuer has in mind, as so often in the past, Israel’s conflicts with its neighbors. But my post had nothing to do with Israel. Nor were the names Podhoretz, Boot, Woolsey, Pipes, or Horowitz mentioned in it. The imputation that these individuals, including a former director of the CIA, are disloyal to the United States is naked bigotry (although I cannot of course defend “Horowitz” from Scheuer’s accusation, since I do not know who he is). 

I was writing not about religious wars but about Scheuer’s disclosure of information to the Danish newspaper Politiken concerning the extraordinary rendition to Egypt in 1995 of a terrorist plotter by the name of Abu Talal. Scheuer does comment on that episode, but in a way completely irrelevant to my charges. He says:

The CIA’s rendition program—which I helped author, and then managed for almost four years—continues to be the U.S. government’s single most successful, perhaps only sucessful [sic] counterterrorism program, and Americans are very much safer with the likes of Abu Talal off the street.

But the issue is not whether extraordinary renditions were successful, or whether Americans are safer because of them. I will stipulate for the sake of argument that he is right about both those things.

I was raising a different issue, concerning the U.S. laws governing leaks, and I raised five questions about whether the Politiken story indicates that these laws may have been broken:

1. Is the story accurate?

2. Assuming it is accurate, was the information about the rendition of Abu Talal classified?

3. Assuming it was classified, and that Scheuer was the primary source, did he have the CIA’s permission to talk about it?

4. Assuming he was the primary source and he did not have CIA permission, and that the two preceding questions are answered in the affirmative, was a crime committed here?

5. If the elements of a crime are in place, will be there an investigation? And is anyone at the CIA or the Department of Justice or in Congress paying attention?

It is notable that in his three responses, Scheuer does not address or answer even one of these five questions.

The CIA does things in secret for a number of very good reasons. One of them is to accomplish U.S. security objectives without creating political firestorms in friendly countries. But a firestorm has now been ignited in Denmark as a result of Scheuer’s leak.

All the opposition parties in the Danish parliament are demanding an investigation into whether the authorities cooperated with the CIA in the extradition. Amnesty International has joined the choir: “It should be clarified whether Denmark indirectly participated in the CIA’s prisoner program and therefore in the violation of human rights,” says Lars Norman Jorgensen, who heads the organization’s Danish branch.

Meanwhile, even as the Danish foreign minister, Per Stig Moller, is denying that he was ever informed that “any unlawful acts” had taken place on Danish territory, Michael Scheuer has been pouring more fuel on the fire. He has told Politiken that the Danish intelligence agency, the DSIS, must have known about the rendition program; he says, “I can’t imagine any situation where we would not have told Denmark this.”

In short, not only does Scheuer appear to be the source of a damaging leak, he appears to be intent on maximizing the damage.

Here are some more dots that I’m still trying to connect:

CIA officers have been indicted in Italy for taking part in extraordinary renditions there. Will Denmark now initiate a similar legal process?

How does Scheuer’s activity differ from the deliberate leaking of classified information by the renegade CIA agent Philip Agee, whose passport was revoked in 1979 and is now a fugitive living in Cuba?

What is the Justice Department doing about the disclosure? I predict that the incoming Attorney General, Michael Mukasey, will prove far more energetic in investigating and prosecuting leaks than was the feckless Alberto Gonzalez. I hope I’m right.

What does Scheuer have to say about any of this? I predict that, at this point, he will answer with either a telling silence or with even more telling and more irrelevant evasions.

A complete guide to other items in this Michael Scheuer Watch series can be found here.

 

 

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