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TERRORIST LOOPHOLES: THE OBAMA WATCH, PART II

“GIRD YOUR LOINS” JOE BIDEN IN OCTOBER 2008

The Obama Watch continues. Some of our new president’s later supporters (the ones who were lured from the center or from the Hillary camp) have moved from attentive concern to gnawing concern.

Some have even arrived at worry.

One of them, a friend troubled by the President’s recent Guantanamo actions, told me privately: “If a big attack on us succeeds in the next four years, we can write off the democrats for the next twenty.”

The stakes are really that high.

We can still hope – without audacity – that President Obama’s penchant for the Grand Gesture will yet be tempered by sober reflection and a quiet return to Trumanesque toughness.

As an undergraduate historian who studied the Truman era before I later became an “outlawyer”, I have always had serious ‘toughness’ doubts about candidate Obama.

My national security concerns were partly allayed by Mr. Obama’s early staff choices (I’m thinking of Secretary Gates and chief of staff Emanuel), but all my doubts sharply resurfaced with the nomination of an underqualified politician (Leon Panetta) to run the CIA.

Now I am full on worried.

The Guantanamo mess, the “tough interrogation” debate and the “terror tribunals” flap are full of traps and snares. Getting just one part of this wrong from a national security perspective could prove fatal for thousands of Americans.

THE ONGOING BATTLE:

THE TOUGH AND THE IDEALISTS WILL ALWAYS BE WITH US.

For as long as we Americans have lived in the modern era, for as long as we have faced serial criminal, terrorist and military threats to our safety, two competing voices have vied for our ear. Neither of these two has quite gained a lasting hold on policy. These two threads are: (1) the generous-idealistic spirit (2) the tough-pragmatic approach. Americans tend to jettison the idealist spirit when it fails to protect us (and it eventually does fail), and they tend to reject the second when (as a majority of us eventually does) Americans just get tired. Keeping up the toughness in defense of liberty and security is hard to do, especially when it works for a long time. We love peace and security so much that we are willing to believe we are safe even when we are not.

In the exuberant sense of “change” following Mr. Obama’s election, one fact did not change. The country is still at grave risk from a resourceful and well funded terror jihad. But we are tired. The country teeters on the edge of abandoning pragmatic toughness in a time of war. That would be a first. We tend to slip into complacency and suicidal generosity towards predators only in a time of peace.

This yin and yang between tough and lax security can be tracked be examining two Supreme Court decisions, one act of congress and Mr. Obama’s recent executive orders.

THE EISENTRAGER CASE: SCORE ONE FOR THE TOUGH SIDE.

In 1950, the Supreme Court validated a practice of the Roosevelt Administration.

“Respondents, who are nonresident enemy aliens, were captured in China by the United States Army and tried and convicted in China by an American military commission for violations of the laws of war committed in China prior to their capture. They were transported to the American-occupied part of Germany and imprisoned there in the custody of the Army. At no time were they within the territorial jurisdiction of any American civil court. Claiming that their trial, conviction, and imprisonment violated Articles I and III, the Fifth Amendment, and other provisions of our Constitution, laws of the United States, and provisions of the Geneva Convention, they petitioned the District Court for the District of Columbia for a writ of habeas corpus directed to the Secretary of Defense, the Secretary of the Army, and several officers of the Army having directive power over their custodian.

Held: A nonresident enemy alien has no access to our courts in wartime.”

“We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who at no relevant time and in no stage of his captivity has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes. Absence of support from legislative or juridical sources is implicit in the statement of the court below that "The answers stem directly from fundamentals. They cannot be found by casual reference to statutes or cases."

“We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption, we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

“We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied 339 U. S. 778 protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.

“Another reason for a limited opening of our courts to resident aliens is that among them are many of friendly personal disposition to whom the status of enemy is only one imputed by law. But these prisoners were actual enemies, active in the hostile service of an enemy power. There is no fiction about their emnity. Y et the decision below confers upon them a right to use our courts, free even of the limitation we have imposed upon resident alien enemies, to whom we deny any use of our courts that would hamper our war effort or aid the enemy.”

Johnson v. Eisentrager, 339 U.S. 763 (1950) Justices Black, Douglas and Burton dissented. The case arose from acts by German nationals in WW II.

FLASH FORWARD TO 2006: THE HAMDAN CASE: SCORE ONE FOR THE IDEALISTS.

Hamdan v. Rumsfeld, secretary of defense, et al.

Certiorari to the united states court of appeals for the District of Columbia circuit

Argued March 28, 2006—Decided June 29, 2006. From the opinion:

“Pursuant to Congress’ Joint Resolution authorizing the President to ‘use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided’ the September 11, 2001, al Qaeda terrorist attacks (AUMF), U. S. Armed Forces invaded Afghanistan. During the hostilities, in 2001, militia forces captured petitioner Hamdan, a Yemeni national, and turned him over to the U. S. military, which, in 2002, transported him to prison in Guantanamo Bay, Cuba. Over a year later, the President deemed Hamdan eligible for trial by military commission for then-unspecified crimes. After another year, he was charged with conspiracy ‘to commit … offenses triable by military commission.’ In habeas and mandamus petitions, Hamdan asserted that the military commission lacks authority to try him because (1) neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, is not a violation of the law of war; and (2) the procedures adopted to try him violate basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.

“... the President’s authority to establish military commissions extends only to offenders or offenses triable by such a commission under the law of war.”

The Supreme Court ordered the military tribunals dismantled.

THE MILITARY COMMISSIONS ACT OF 2006: SCORE ONE FOR TOUGHNESS.

The Congress acted swiftly to repair the damage done by the Supreme Court

The Military Commissions Act of 2006 was enacted on September 29, 2006. The Senate vote was crucial. It passed 65 to 43.

The act effectively repealed Hamdan v. Rumsfeld before it could effectively invalidate the system of military tribunals for foreign terrorist detainees. Congress disallowed the writ of habeas corpus for these detainees and allowed hearsay evidence against the defendants, designated by the president as “unlawful enemy combatants.”

Eleven Democrats voted for, along with 54 Republicans. Among those voting against were Senators Biden, Obama and Clinton.

SCORE ONE FOR THE IDEALISTS: LAST YEAR, SCOTUS REVERSED CONGRESS.

Boumediene et al. v. Bush, June 12, 2008

“In a stinging defeat for the Bush administration, the Supreme Court ruled today that detainees held at Guantanamo Bay, Cuba, have a constitutional right to challenge their detentions in federal court and that congressional legislation has failed to provide a reasonable substitute for such a hearing.”

The ruling invalidates portions of the Military Commissions Act of 2006, which created military tribunals to hear the cases of those held at Guantanamo. The decision was 5-4, with Justice Anthony Kennedy joining the four liberal justices on the court.” ABC News, June 12, 2008 - Jan Crawford Greenburg & Ariane De Vogue.

In a five to four decision – Justice Kennedy voting with the majority – the U.S. Supreme Court simply changed the rules that had been in effect from the civil War through World War II. The linchpin of the decision was to undo the denial of writ of habeas corpus to foreign terror combatants at the U. S. Guantanamo Bay detention facility in Cuba.

No one seriously disputed that Guantanamo is outside the United States.

As Justice Scalia tersely put it:

[T]oday’s opinion … will make the war harder on us. It will almost certainly cause more Americans to be killed."

As the high court admitted:

“[We] recognize, as the Court did in Eisentrager [The court’s earlier precedent denying the extra-territorial use of habeas], that there are costs to holding the Suspension Clause applicable in a case of military detention abroad. Habeas corpus proceedings may....divert the attention of military personnel from other pressing tasks. While we are sensitive to these concerns, [they don’t affect our decision.]

As Justice Roberts summed it up:

“Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law's operation. And to what effect? The majority merely replaces a review system designed by the people's representatives with a set of shapeless procedures to be defined by federal courts at some future date.”

Naïve idealism, like all human actions and stances, inevitably produces its own set of consequences.

SCORE ONE FOR THE GRAND LIBERAL GESTURE:

So far, this year:

Immediately on taking office President Obama ordered the facility at Guantanamo closed (within the year) and directed that all of the current terrorist prosecutions under the Military commissions Act be immediately halted, pending a review by his office.

What this means:

No one needs to be reminded that on September 11, 2001 about three thousand innocent people were murdered on American soil in a brutal terror-attack, the most overt and brazen phase of the jihad against “the Great Satan” since its beginning in the early 1990’s. I remember this event with particular vividness. I was on scene within a safe walking distance of Ground Zero. I smelled the dust. I saw the grief stricken faces with my own eyes. I cheered with other Americans when our fighter jets flew over our Manhattan skyscrapers. I understand ‘never again’ deep in my bones. I fear that our new president might not.

We do need to notice that the new president has ordered a large set of active federal terrorist prosecutions stayed, including that against September 11’s architect, Khalid Sheikh Mohammed, and three of his co-defendants – the same group who recently stated they wanted to plead guilty.

These and the other Guantanamo cases had been proceeding in special tribunals established by congress after a divided supreme court had invalidated the Bush administration’s decision to proceed with military court proceedings, relying on the World War II practice of the FDR administration.

We might also recall that the 9-11 attacks were prefigured by an attack on a US Naval vessel.

“Seventeen US sailors died on 12 October 2000 when al-Qaida suicide bombers steered an explosives-laden boat into the Cole, a guided-missile destroyer, as it sat in a Yemen port. The Pentagon charged Nashiri, a Saudi Arabian, last summer with directing the bombing and was asking for the death penalty. The military prosecution of the suspected al-Qaida bomber Abd al-Rahim al-Nashiri, believed to be instrumental in the bombing of the USS Cole in 2000.” [from one of several news reports]

Are we not entitled to be troubled troubled, that this prosecution, too, was ordered suspended by the new president?

Mr. Obama has met with the families of Cole bombing & September 11 victims. It was an appropriate gesture for the president to meet with them. After all, he had just halted the prosecutions against the “mastermind of the 911 attacks and his cohorts” and that of Al-Nashiri who has confessed to helping plot the Cole and now alleges that he was tortured by US interrogators.

Mr. Obama told the families that he wants “swift and certain justice”.

I am tempted to point out that 2000 and 2001 are more than eight years ago. I think the “swift justice” train long ago left the station.

Mr. Obama will continue a “dialogue with the families”. He promised to name a staff member as a “point of contact”.

[][][]

“WHAT, ME WORRY”?

As I wrote here in January:

“I am an expert criminal defense attorney, but I am also a concerned patriot. I can promise you that the last thing Americans want to see is the specter of a legal defense team for someone like Khalid Sheikh Mohammed showing up in a traditional courtroom armed all of the same tools, protections and legal maneuvering room that the generous American courts would give, say, a contemporary O. J. Simpson.

“Minimal due process is sufficient for terror cases against foreign combatants. Under battlefield conditions and in terror enclaves overseas, there should no exclusionary rule for excessive force; no throwing out a case because the soldiers did not get a warrant; and no technical objections to reasonably reliable incriminating evidence. We are entitled to expect good faith efforts in the prosecution and adjudication, but not perfection. The proceedings need to be – and until now have been - aimed at getting expeditiously at the truth of the matter, using common sense rules appropriate to battlefield conditions abroad where many witnesses are no longer available and reliable hearsay must be admitted when necessary.”

Let me amplify.

We invaded Afghanistan to seize the plotters. Remarkably, US forces succeeded brilliantly in gathering evidence and rolling up the key bad guys under chaotic wartime conditions.

It is patently absurd to expect soldiers operating in combat conditions to perform like a roving CSI team, gathering forensic evidence with Q tips under fire, conducting office interviews of potential witnesses, issuing subpoenas and “call me back when you think of something cards”. Under those challenging conditions you collect the best evidence you can, scooping up computers and notes in green garbage bags, grabbing the miscreants and hauling everything back to base. In wartime, most witnesses are dead. The rest are unavailable. You rely on reliable hearsay or the miscreants walk. It really is that simple.

The prospect of letting American criminal defense lawyers attack these cases, with all of the forensic tools, tricks and maneuvers available in civilian courts, is like inviting sharks to a preschool swimming party. The result will be the release of obviously guilty foreign combatants in a suicidal exercise of misplaced virtue.

Fortunately we have a preview example:

“RIYADH, Saudi Arabia.

“Eleven Saudis released from Guantanamo Bay, Cuba, are on a list of 85 wanted terrorism suspects made public by the Saudi Interior Ministry.

“Saudi officials said the 11 former Guantanamo Bay detainees underwent a Saudi rehabilitation program for former jihadists and are thought to have fled the country, joining terrorist groups elsewhere, The New York Times reported Wednesday.

“The 11 former detainees include two already identified as members of a Yemeni terrorist group.

The 85-name list made public Tuesday is the largest list Saudi officials have released yet, the Times said. All but two of the wanted suspects are Saudis. Officials also appealed for the men to turn themselves into authorities.

“’They will, of course, be interviewed and investigated and prosecuted for any crimes they may have committed,’ said Gen. Mansour al-Turki, an interior ministry spokesman. But by turning themselves in before committing any crime, they will have a better chance to be returned to their families.’

“Unclear was whether any of the 11 former Guantanamo Bay detainees participated in terrorist attacks, the Times said. U.S. counterterrorism officials have confirmed that Said Ali al-Shihri, a Saudi released from Guantanamo in November 2007, was the deputy leader of the Yemeni branch of al-Qaida and suspected of being involved in a deadly attack ...”

CONCLUSION

Gesture politics has its limits. I am inclined to agree with my friend, a Hillary voter, who said: “If anything big happens to Americans in the next four years, we can write off the democrats for the next twenty.”

And I am now reminded painfully of Mr. Biden’s campaign “gaffe” in Seattle, October 19, 2008:

“Mark my words. Mark my words. It will not be six months before the world tests Barack Obama like they did John Kennedy. The world is looking. We're about to elect a brilliant 47-year old senator president of the United States of America. Remember I said it standing here if you don't remember anything else I said. Watch, we're gonna have an international crisis, a generated crisis, to test the mettle of this guy. And he's gonna have to make some really tough - I don't know what the decision's gonna be, but I promise you it will occur. As a student of history and having served with seven presidents, I guarantee you it's gonna happen. I can give you at least four or five scenarios from where it might originate. And he's gonna need help. And the kind of help he's gonna need is, he's gonna need you, not financially to help him, we're gonna need you to use your influence, your influence within the community, to stand with him. Because it's not gonna be apparent initially, it's not gonna be apparent that we're right.”

"Only thing I'm asking you is, you know, gird your loins.”

Here’s the dirty little secret: This was not one of Joe Biden’s gaffes.

JBG