Commentary Magazine


Topic: Zacarias Moussaoui

Not the Most Transparent Administration Ever: The Fort Hood Stonewall

Sens. Joe Lieberman and Susan Collins, the chair and ranking minority leader on the Homeland Security and Governmental Affairs Committee, have been stymied in their effort to investigate the Fort Hood terrorist attack. They’ve been forced to now subpoena the records they are seeking, for it seems that the administration adamantly refuses to have anyone look over its shoulder. The senators take to the pages of the Wall Street Journal to argue:

The rampage at Fort Hood, Texas, on Nov. 5, 2009 — after which U.S. Army Major Nidal Hasan was charged with 13 counts of murder and 32 counts of attempted murder — has been reviewed by the administration and its group of handpicked outsiders, who were all formerly with either the Department of Defense or the Department of Justice. But the administration continues to withhold much of the crucial information from the Homeland Security and Governmental Affairs Committee, of which we are chairman and ranking member.

This is just not good enough for the American people. There are too many questions that still demand answers. Whatever mistakes were made in the run-up to the Fort Hood shootings need to be uncovered, and an independent, bipartisan congressional investigation is the best way to do it.

As Lieberman makes clear, they aren’t seeking to investigate the shooting — it’s the Army they want to investigate. Specifically, the senators are concerned about the lack of attention which the FBI and Defense Department paid to Major Hassan’s radical behavior and to his e-mails with Anwar al-Awlaki. As they note, the Bush administration never tried this sort of stonewall. (“There is recent precedent for Congress to interview agents who may be prosecution witnesses. The Congressional Joint Inquiry into 9/11 interviewed FBI agents who were involved in arresting the so-called 20th hijacker, Zacarias Moussaoui, even though they were potential witnesses in that case.”)

It is hard to escape the conclusion that this administration simply doesn’t want to be second-guessed. We’ve already investigated ourselves, they declare. Not good enough. The senators should keep at it. And the administration should be on notice: should one or both of the Senate or House flip to Republican control, there is going to be a renewed appreciation of the importance of Congressional oversight.

Sens. Joe Lieberman and Susan Collins, the chair and ranking minority leader on the Homeland Security and Governmental Affairs Committee, have been stymied in their effort to investigate the Fort Hood terrorist attack. They’ve been forced to now subpoena the records they are seeking, for it seems that the administration adamantly refuses to have anyone look over its shoulder. The senators take to the pages of the Wall Street Journal to argue:

The rampage at Fort Hood, Texas, on Nov. 5, 2009 — after which U.S. Army Major Nidal Hasan was charged with 13 counts of murder and 32 counts of attempted murder — has been reviewed by the administration and its group of handpicked outsiders, who were all formerly with either the Department of Defense or the Department of Justice. But the administration continues to withhold much of the crucial information from the Homeland Security and Governmental Affairs Committee, of which we are chairman and ranking member.

This is just not good enough for the American people. There are too many questions that still demand answers. Whatever mistakes were made in the run-up to the Fort Hood shootings need to be uncovered, and an independent, bipartisan congressional investigation is the best way to do it.

As Lieberman makes clear, they aren’t seeking to investigate the shooting — it’s the Army they want to investigate. Specifically, the senators are concerned about the lack of attention which the FBI and Defense Department paid to Major Hassan’s radical behavior and to his e-mails with Anwar al-Awlaki. As they note, the Bush administration never tried this sort of stonewall. (“There is recent precedent for Congress to interview agents who may be prosecution witnesses. The Congressional Joint Inquiry into 9/11 interviewed FBI agents who were involved in arresting the so-called 20th hijacker, Zacarias Moussaoui, even though they were potential witnesses in that case.”)

It is hard to escape the conclusion that this administration simply doesn’t want to be second-guessed. We’ve already investigated ourselves, they declare. Not good enough. The senators should keep at it. And the administration should be on notice: should one or both of the Senate or House flip to Republican control, there is going to be a renewed appreciation of the importance of Congressional oversight.

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Re: Not in Virginia

Gov. Bob McDonnell wants there to be no doubt about his views. He has released the following statement on the KSM trial:

Virginia Governor Bob McDonnell today reiterated his longstanding opposition to the detention or trial of any Guantanamo Bay detainee, including Khalid Sheikh Mohammad, taking place in the Commonwealth of Virginia. He also noted his agreement with Congressional leaders from both parties that all Guantanamo Bay detainees be put before military tribunals, rather than civilian courts as outlined by the United States Department of Justice. Virginia has several locations, including Alexandria and Newport News, that have been suggested as possible civilian trial locations.

Speaking about the issue Governor McDonnell noted, “Officials in New York City have made clear they do not want a disruptive civilian trial of 9-11 mastermind Khalid Sheikh Mohammad taking place in that city. As they are appropriately acting in the best interests of their citizens, today I am doing the same for the citizens of the Commonwealth of Virginia. The Commonwealth has been the site of previous terrorism trials, most recently the 2006 trial of Zacarias Moussaoui at the federal courthouse in Alexandria. That trial led to ongoing significant disruptions and potential threats for the citizens of that Virginia community, and local leaders have made clear they do not want to host such a trial again.  I strongly oppose any Guantanamo Bay detainees being either held or tried in Virginia.”

Now the question becomes, what other governors will step forward? Is there any state willing to take on the financial burden and security risk of the Obami’s grand experiment? I think it unlikely.

Gov. Bob McDonnell wants there to be no doubt about his views. He has released the following statement on the KSM trial:

Virginia Governor Bob McDonnell today reiterated his longstanding opposition to the detention or trial of any Guantanamo Bay detainee, including Khalid Sheikh Mohammad, taking place in the Commonwealth of Virginia. He also noted his agreement with Congressional leaders from both parties that all Guantanamo Bay detainees be put before military tribunals, rather than civilian courts as outlined by the United States Department of Justice. Virginia has several locations, including Alexandria and Newport News, that have been suggested as possible civilian trial locations.

Speaking about the issue Governor McDonnell noted, “Officials in New York City have made clear they do not want a disruptive civilian trial of 9-11 mastermind Khalid Sheikh Mohammad taking place in that city. As they are appropriately acting in the best interests of their citizens, today I am doing the same for the citizens of the Commonwealth of Virginia. The Commonwealth has been the site of previous terrorism trials, most recently the 2006 trial of Zacarias Moussaoui at the federal courthouse in Alexandria. That trial led to ongoing significant disruptions and potential threats for the citizens of that Virginia community, and local leaders have made clear they do not want to host such a trial again.  I strongly oppose any Guantanamo Bay detainees being either held or tried in Virginia.”

Now the question becomes, what other governors will step forward? Is there any state willing to take on the financial burden and security risk of the Obami’s grand experiment? I think it unlikely.

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Not in Virginia

With the apparent decision by the Obama administration to throw in the towel on a New York trial for KSM, speculation has turned to what other locales might take on the burden of a public trial for the world’s most notorious jihadist. One suggestion has been Alexandria, Virginia, where the 2006 death-penalty trial of Zacarias Moussaoui was held. However, Gov. Bob McDonnell is having none of that. His spokesman, Tucker Martin, had this to say on the subject when I inquired as to the possibility of a trial in the federal court in Alexandria:

The governor is adamantly opposed to that trial taking place in Virginia. He has been unequivocal in his opposition to any trials of Guantanamo Bay detainees taking place in the Commonwealth. He will continue to make his strong opposition clear, and will work with Virginia’s congressional delegation to prevent any Guantanamo Bay detainees from setting foot in Virginia.

Martin referred me to McDonnell’s multiple statements on the topic during the campaign last year when, at one time, Virginia Congressman James Moran evidenced enthusiasm about hosting Guantanamo trials and accepting released detainees in his district. Back in May of 2009, when rumors circulated that the Uighurs might be coming to Virginia, McDonnell declared support for the “Keep Terrorists Out of America Act,” which would have required the president to certify that the detainee did not pose a security risk and to inform Congress as to why a specific location had been chosen. Again in August, then candidate McDonnell released a statement declaring:

I strongly oppose the trials of any Guantanamo Bay detainees being conducted in Alexandria, or anywhere in the Commonwealth of Virginia. The federal courthouse in Alexandria is located just feet from hotels, shops and apartment buildings. In 2006 the Alexandria trial of terrorist Zacarias Moussaoui demonstrated firsthand the tremendous burden such events place on the community.

The bottom line: if the Obami intend to relocate the KSM trial to Virginia, they will get quite a fight from the governor and, I suspect, other elected officials. And frankly, any governor of another state who takes a less adamant stance on the topic is likely to encounter a storm of criticism.

Perhaps it is time to return KSM and his associates to a secure, offshore location where he can be tried before a military tribunal with no risk or further financial burden on the American people. We have one built specifically for that purpose: Guantanamo Bay.

With the apparent decision by the Obama administration to throw in the towel on a New York trial for KSM, speculation has turned to what other locales might take on the burden of a public trial for the world’s most notorious jihadist. One suggestion has been Alexandria, Virginia, where the 2006 death-penalty trial of Zacarias Moussaoui was held. However, Gov. Bob McDonnell is having none of that. His spokesman, Tucker Martin, had this to say on the subject when I inquired as to the possibility of a trial in the federal court in Alexandria:

The governor is adamantly opposed to that trial taking place in Virginia. He has been unequivocal in his opposition to any trials of Guantanamo Bay detainees taking place in the Commonwealth. He will continue to make his strong opposition clear, and will work with Virginia’s congressional delegation to prevent any Guantanamo Bay detainees from setting foot in Virginia.

Martin referred me to McDonnell’s multiple statements on the topic during the campaign last year when, at one time, Virginia Congressman James Moran evidenced enthusiasm about hosting Guantanamo trials and accepting released detainees in his district. Back in May of 2009, when rumors circulated that the Uighurs might be coming to Virginia, McDonnell declared support for the “Keep Terrorists Out of America Act,” which would have required the president to certify that the detainee did not pose a security risk and to inform Congress as to why a specific location had been chosen. Again in August, then candidate McDonnell released a statement declaring:

I strongly oppose the trials of any Guantanamo Bay detainees being conducted in Alexandria, or anywhere in the Commonwealth of Virginia. The federal courthouse in Alexandria is located just feet from hotels, shops and apartment buildings. In 2006 the Alexandria trial of terrorist Zacarias Moussaoui demonstrated firsthand the tremendous burden such events place on the community.

The bottom line: if the Obami intend to relocate the KSM trial to Virginia, they will get quite a fight from the governor and, I suspect, other elected officials. And frankly, any governor of another state who takes a less adamant stance on the topic is likely to encounter a storm of criticism.

Perhaps it is time to return KSM and his associates to a secure, offshore location where he can be tried before a military tribunal with no risk or further financial burden on the American people. We have one built specifically for that purpose: Guantanamo Bay.

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But Isn’t There a Downside?

This is an instructive exchange on Fox News Sunday between Obama’s counterterrorism advisor, John Brennan, and Chris Wallace, on the subject of treating the Christmas Day bomber as a criminal defendant. Why do this?

BRENNAN: Well, we have an array of tools that we will use, and we want to make sure we maintain flexibility as far as how we deal with these individuals.

Now, let’s get the facts on the table. He was arrested on U.S. soil on a plane on — in the Detroit airplane. He was, in fact, talking to people who were detaining him.

There were people who were arrested during the previous administration — Richard Reid, the shoe bomber; Zacarias Moussaoui; Padilla; Iyman Faris; others — all were charged and tried in criminal court and sentenced, some cases to life imprisonment.

Just because somebody is going to be put into the criminal legal process does not mean that they’re — we don’t have other opportunities to get information from them.

WALLACE: But wait, wait. Let me ask you specifically. After Abdulmutallab got lawyered up, did he stop cooperating with authorities? Did he stop talking?

BRENNAN: I’m not going to address exactly what he did before or after he was — talked with his lawyer. We got information. We continue to have opportunities to do that.

As you talk with the lawyers and you talk with the individuals, as they recognize what they’re facing as far as the charges, conviction and possible sentence, there are opportunities to continue to talk about it.

FBI has some of the best interrogators and debriefers in the world, and so I’m confident that we’re going to continue to be able to work this system and see whether or not…

WALLACE: But once he gets his Miranda rights, he doesn’t have to speak at all.

BRENNAN: He doesn’t have to, but he knows that there are certain things that are on the table, and if he wants to, in fact, engage with us in a productive manner, there are ways that he can do that.

WALLACE: But why not treat him — you certainly had the right — have — had — still have the right to treat him as an enemy combatant. Why not do that?

If he has more actionable intelligence about future attacks, and you say there’s a real possibility of that, doesn’t the president have a responsibility to do everything legal he can to get that information?

BRENNAN: And the president has that responsibility, and the Department of Justice makes these determinations about what’s the best tool to use. And in this instance, we felt as though it was the best way to address Mr. Abdulmutallab’s case.

We’ll continue to look at each of the cases individually and proceed accordingly.

WALLACE: Just briefly, what’s the downside of treating him as an enemy combatant?

BRENNAN: There’s — there are no downsides or upsides in particular cases. What we’re trying to do is to make sure we apply the right tool in the right instance. In this case, we made a determination that he should be tried in U.S. criminal court.

If you missed the coherent explanation for why they are doing this — other than the fact that the lefty lawyers in the Justice Department told them to — you are not alone. The lack of thoughtful analysis as to the national-security implications of treating Abdulmutallab as a criminal rather than as an enemy combatant is somewhat stunning. Yes, the terrorist doesn’t have to talk to us, but we have “certain things on the table.” What — we are already plea bargaining with an al-Qaeda trained terrorist? It is startling, but it is also the natural result of what comes from putting the criminal-justice model into place. Oh, he’s arrested here? So Mirandize him, call the FBI, and yes, I suppose, permit him to take the 5th. And when Brennan says that there is “no downsides or upsides in particular cases,” one has to wonder what in the world he is talking about. Of course there is a downside to allowing Abdulmutallab to clam up. Just as there would have been a downside had we allowed KSM to clam up. We lose potentially life-saving information when we stand quietly by.

The difference is that the Bush administration wasn’t willing to play Russian roulette with Americans lives or hope that detainees would eventually change their minds and co-operate. The Obama administration is. And that should be deeply disturbing to all of us.

This is an instructive exchange on Fox News Sunday between Obama’s counterterrorism advisor, John Brennan, and Chris Wallace, on the subject of treating the Christmas Day bomber as a criminal defendant. Why do this?

BRENNAN: Well, we have an array of tools that we will use, and we want to make sure we maintain flexibility as far as how we deal with these individuals.

Now, let’s get the facts on the table. He was arrested on U.S. soil on a plane on — in the Detroit airplane. He was, in fact, talking to people who were detaining him.

There were people who were arrested during the previous administration — Richard Reid, the shoe bomber; Zacarias Moussaoui; Padilla; Iyman Faris; others — all were charged and tried in criminal court and sentenced, some cases to life imprisonment.

Just because somebody is going to be put into the criminal legal process does not mean that they’re — we don’t have other opportunities to get information from them.

WALLACE: But wait, wait. Let me ask you specifically. After Abdulmutallab got lawyered up, did he stop cooperating with authorities? Did he stop talking?

BRENNAN: I’m not going to address exactly what he did before or after he was — talked with his lawyer. We got information. We continue to have opportunities to do that.

As you talk with the lawyers and you talk with the individuals, as they recognize what they’re facing as far as the charges, conviction and possible sentence, there are opportunities to continue to talk about it.

FBI has some of the best interrogators and debriefers in the world, and so I’m confident that we’re going to continue to be able to work this system and see whether or not…

WALLACE: But once he gets his Miranda rights, he doesn’t have to speak at all.

BRENNAN: He doesn’t have to, but he knows that there are certain things that are on the table, and if he wants to, in fact, engage with us in a productive manner, there are ways that he can do that.

WALLACE: But why not treat him — you certainly had the right — have — had — still have the right to treat him as an enemy combatant. Why not do that?

If he has more actionable intelligence about future attacks, and you say there’s a real possibility of that, doesn’t the president have a responsibility to do everything legal he can to get that information?

BRENNAN: And the president has that responsibility, and the Department of Justice makes these determinations about what’s the best tool to use. And in this instance, we felt as though it was the best way to address Mr. Abdulmutallab’s case.

We’ll continue to look at each of the cases individually and proceed accordingly.

WALLACE: Just briefly, what’s the downside of treating him as an enemy combatant?

BRENNAN: There’s — there are no downsides or upsides in particular cases. What we’re trying to do is to make sure we apply the right tool in the right instance. In this case, we made a determination that he should be tried in U.S. criminal court.

If you missed the coherent explanation for why they are doing this — other than the fact that the lefty lawyers in the Justice Department told them to — you are not alone. The lack of thoughtful analysis as to the national-security implications of treating Abdulmutallab as a criminal rather than as an enemy combatant is somewhat stunning. Yes, the terrorist doesn’t have to talk to us, but we have “certain things on the table.” What — we are already plea bargaining with an al-Qaeda trained terrorist? It is startling, but it is also the natural result of what comes from putting the criminal-justice model into place. Oh, he’s arrested here? So Mirandize him, call the FBI, and yes, I suppose, permit him to take the 5th. And when Brennan says that there is “no downsides or upsides in particular cases,” one has to wonder what in the world he is talking about. Of course there is a downside to allowing Abdulmutallab to clam up. Just as there would have been a downside had we allowed KSM to clam up. We lose potentially life-saving information when we stand quietly by.

The difference is that the Bush administration wasn’t willing to play Russian roulette with Americans lives or hope that detainees would eventually change their minds and co-operate. The Obama administration is. And that should be deeply disturbing to all of us.

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Is This Really Worth It?

Former Justice Department lawyer John Yoo writes:

Trying KSM in civilian court will be an intelligence bonanza for al Qaeda and the hostile nations that will view the U.S. intelligence methods and sources that such a trial will reveal. The proceedings will tie up judges for years on issues best left to the president and Congress.

Whether a jury ultimately convicts KSM and his fellows, or sentences them to death, is beside the point. The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war.

Yoo was the object of much ire from the Obami and their supporters. As one author of the Bush-era interrogation memos, he was accused of promoting “torture” — an assertion that now will be wielded like a sword by KSM’s lawyers as they try to put the U.S. on trial. And what will Eric Holder’s Justice Department say — no, it wasn’t torture after all? No, none of the information derived from the enhanced interrogations was used for the “prosecution”? It will be only one aspect of a multi-ring circus.

And as Yoo explains, the danger to the U.S. is great, as we will be “forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives.” Aside from blowing the “cover” of personnel and plans known to us, we will be taking an unmistakable step toward criminalizing the battlefield:

Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights? Will they have to secure the “crime scene” under battlefield conditions? Will they have to take statements from nearby “witnesses”? Will they have to gather evidence and secure its chain of custody for transport all the way back to New York? All of this while intelligence officers and soldiers operate in a war zone, trying to stay alive, and working to complete their mission and get out without casualties.

The mind reels as one considers the multiple ways in which the decision to extract KSM from the military-tribunal system and plop him down into a Manhattan courtroom will harm our national security. And will it really stay in Manhattan, in such close proximity to Ground Zero, or should I say, “the crime scene”? Certainly a change of venue motion will be forthcoming among the hundreds, if not thousands, of motions that will flow from the defendant — oh yes, that’s defendant KSM, now entitled to the presumption of innocence — and his stable of lawyers.

If you think Yoo or Obama’s critics are exaggerating, Yoo reminds us of Zacarias Moussaoui, the so-called 20th hijacker: “His trial never made it to a jury. Moussaoui’s lawyers tied the court up in knots. All they had to do was demand that the government hand over all its intelligence on him. The case became a four-year circus, giving Moussaoui a platform to air his anti-American tirades.”

The president would have us believe that this is all Holder’s doing. Obama wasn’t even in the country when the announcement was made. If true, Obama has abandoned his obligation to make key decisions affecting national security. But who really believes that? No, this is the president’s call. KSM is landing in a civilian courtroom because Obama wants him there. Whatever flows from that, whatever damage is done to our national security, is his responsibility. And frankly, whatever anguish is experienced by the victims’ families, who will now hear KSM proclaim the virtue of his cause, is also Obama’s. He should have had the decency and the courage to tell them and the American people why he thought this was necessary.

Former Justice Department lawyer John Yoo writes:

Trying KSM in civilian court will be an intelligence bonanza for al Qaeda and the hostile nations that will view the U.S. intelligence methods and sources that such a trial will reveal. The proceedings will tie up judges for years on issues best left to the president and Congress.

Whether a jury ultimately convicts KSM and his fellows, or sentences them to death, is beside the point. The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war.

Yoo was the object of much ire from the Obami and their supporters. As one author of the Bush-era interrogation memos, he was accused of promoting “torture” — an assertion that now will be wielded like a sword by KSM’s lawyers as they try to put the U.S. on trial. And what will Eric Holder’s Justice Department say — no, it wasn’t torture after all? No, none of the information derived from the enhanced interrogations was used for the “prosecution”? It will be only one aspect of a multi-ring circus.

And as Yoo explains, the danger to the U.S. is great, as we will be “forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives.” Aside from blowing the “cover” of personnel and plans known to us, we will be taking an unmistakable step toward criminalizing the battlefield:

Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights? Will they have to secure the “crime scene” under battlefield conditions? Will they have to take statements from nearby “witnesses”? Will they have to gather evidence and secure its chain of custody for transport all the way back to New York? All of this while intelligence officers and soldiers operate in a war zone, trying to stay alive, and working to complete their mission and get out without casualties.

The mind reels as one considers the multiple ways in which the decision to extract KSM from the military-tribunal system and plop him down into a Manhattan courtroom will harm our national security. And will it really stay in Manhattan, in such close proximity to Ground Zero, or should I say, “the crime scene”? Certainly a change of venue motion will be forthcoming among the hundreds, if not thousands, of motions that will flow from the defendant — oh yes, that’s defendant KSM, now entitled to the presumption of innocence — and his stable of lawyers.

If you think Yoo or Obama’s critics are exaggerating, Yoo reminds us of Zacarias Moussaoui, the so-called 20th hijacker: “His trial never made it to a jury. Moussaoui’s lawyers tied the court up in knots. All they had to do was demand that the government hand over all its intelligence on him. The case became a four-year circus, giving Moussaoui a platform to air his anti-American tirades.”

The president would have us believe that this is all Holder’s doing. Obama wasn’t even in the country when the announcement was made. If true, Obama has abandoned his obligation to make key decisions affecting national security. But who really believes that? No, this is the president’s call. KSM is landing in a civilian courtroom because Obama wants him there. Whatever flows from that, whatever damage is done to our national security, is his responsibility. And frankly, whatever anguish is experienced by the victims’ families, who will now hear KSM proclaim the virtue of his cause, is also Obama’s. He should have had the decency and the courage to tell them and the American people why he thought this was necessary.

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