Hold the champagne on military tribunals...It's a head fake

The Washington Post is reporting that President Obama will reverse Attorney General Eric Holder's decision to try 9/11 mastermind, Khalid Sheikh Mohammed, in federal court:

President Obama's advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.'s plan to try him in civilian court in New York City.

The president's advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some terrorism suspects in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.

If Obama accepts the likely recommendation of his advisers, the White House may be able to secure from Congress the funding and legal authority it needs to close the U.S. military prison at Guantanamo Bay, Cuba, and replace it with a facility within the United States. The administration has failed to meet a self-imposed one-year deadline to close Guantanamo.

Andy McCarthy warns us not to celebrate the move, calling it a head fake:

The Washington Post article that Dan posted about last night is a head fake. President Obama is not caving on military commissions. He has already caved on them: He failed (thankfully) to abolish them, Congress enacted legislation endorsing them again in 2009, and the administration has already directed a commission trial for the Cole bombers.

The real agenda here is to close Gitmo. That’s the ball to keep your eye on. The Post is trying to soften the opposition to shuttering the detention camp by portraying beleaguered, reasonable Obama as making a great compromise that will exasperate the Left. The idea is to strengthen Sen. Lindsey Graham’s hand in seeking reciprocal compromise from our side.

This, however, is a matter of national security, not horse-trading over a highway bill. You don’t agree to do a stupid thing that endangers the country just because your opposition has magnanimously come off its insistence that you do two stupid things that endanger the country.

If a deal to grant military commissions in exchange for closing Gitmo happens, it is a major win for the Obama Left and an enormous loss for public safety.

McCarthy's insights are spot on.  Read the whole thing.

Bush administration lawyers vindicated in Holder witchhunt

On Friday, the senior ethicist in the Obama/Holder Justice Department concluded that Bush administration lawyers did not commit professional misconduct in their advisement to the President in the chaotic days after 9/11.  From the Wall Street Journal:

So after five years of investigation, partisan accusations and unethical media leaks, the Justice Department's senior ethicist has concluded that Bush Administration lawyers John Yoo and Jay Bybee committed no professional misconduct. The issue now is whether the protégés of Attorney General Eric Holder who led this exercise at Justice's Office of Professional Responsibility (OPR) should themselves be in the dock.

That's our reading of the analysis by Associate Deputy Attorney General David Margolis, a career official who reviewed both the Bush-era legal memos on interrogating terror suspects and their review by the lawyers at OPR. Remarkably, his report is far more scathing about OPR than it is about Messrs. Yoo and Bybee, who he says made legal errors but did so in good faith, out of honest legal analysis, and in the ethical service of their clients in the executive branch at a time of war.

Mr. Margolis's review overrules both a draft OPR report whose contents were leaked to the media last year and a final OPR report that was released along with the Margolis review late Friday. Those OPR reports recommended disciplinary action and potential disbarment for Messrs. Bybee and Yoo for their advice while working in the Office of Legal Counsel in the frantic months after September 11. The leaks were themselves an unethical attempt to smear the reputations of the lawyers while they were under a gag order and unable to reply.

Read the whole article if you want a complete picture of the incompetence of the Justice Department's Office of Professional Responsibility (and specifically its head, Mary Patrice Brown).

In a somewhat ironic opinion, Mr. Yoo explains in the Wall Street Journal why his fight to clear his name was really a fight for President Obama:

Why bother fighting off an administration hell-bent on finding scapegoats for its policy disagreements with the last president? I could have easily decided to hide out, as others have. Instead, I wrote numerous articles (several published in this newspaper) and three books explaining and defending presidential control of national security policy. I gave dozens of speeches and media appearances, where I confronted critics of the administration's terrorism policies. And, most importantly, I was lucky to receive the outstanding legal counsel of Miguel Estrada, one of the nation's finest defense attorneys, to attack head-on and without reservation, each and every one of OPR's mistakes, misdeeds and acts of malfeasance.

I did not do this to win any popularity contests, least of all those held in the faculty lounge. I did it to help our president—President Obama, not Bush. Mr. Obama is fighting three wars simultaneously in Iraq, Afghanistan, and against al Qaeda. He will call upon the men and women serving under his command to make choices as hard as the ones we faced. They cannot meet those challenges with clear minds if they believe that a bevy of prosecutors, congressional committees and media critics await them when they return from the battlefield.

Who will serve our President and our Nation in the future with uncensored, considered legal advice; unafraid devotion to mission; and unwavering bravery in defense of our country with the ever-looming threat of personal legal prosecution?

I applaud Deputy A.G. David Margolis for what may have been a career-ending act of patriotism.

Attorney General Eric Holder has failed America

Yesterday the U.S. top intelligence leaders suggested that FBI agents on the scene in Detroit made the decision to treat the underwear bomber as a criminal suspect.  I and most thinking Americans were skeptical.  Today Wendell Goler from the Fox News Channel asked the question of Obama press secretary Robert Gibbs:

Q … who made the decision to try Abdulmutallab in federal court? Was the president aware of this decision when he began being processed in the legal system?



MR. GIBBS: Well, again, understand that the decision to try him was handed down in an indictment that I think took place many days afterward. So, yes, all the team was involved in that.


Q So the decision was made over a period of days. I mean, there was a time between which he was taken into custody on Christmas Day and a time in which the decision was made that –


MR. GIBBS: Well, understand this, there was a period of time in which he was taken into custody, a period of time in which experienced FBI agents interrogated him, received valuable intelligence from him. He was arraigned at a later period of time, and later than that was indicted.


Q And who made the decision to try him in federal court? Did the president make that call?


MR. GIBBS: I believe that decision is made by the Attorney General.

The despicable truth is, no one at the press briefing at the White House, nor arguably anyone in the television viewing audience was really surprised by the answer, despite the fact that its revelation took almost a month.  It is crystal clear from recent events (e.g., the firing of Americorps Inspector General Gerald Walpin; the dismissal of a default judgment against the New Black Panthers for voter intimidation at a voting precinct in Philadelphia in November, 2008; the subsequent reassignment of Christopher Coates, the veteran Justice Department voting-rights section chief  who signed off on that AG-dismissed complaint against the Black Panthers to South Carolina; the decision to try 9/11 mastermind terrorist Khalid Sheik Mohammed in criminal court in NYC; just to name a few) that Attorney General Eric Holder is running the national security show.

It's an unacceptable, terrifying and outrageous truth.  I believe Attorney General Holder must go.

Could the CIA attack in Afghanistan have been prevented?

We will never know what information we might have gleaned from a thorough interrogation of Flight 253 terrorist Umar Farouk Abdulmutallab.  Instead, as Charles Krauthammer so aptly put it, "We are now forced to purchase information from this attempted terrorist in the coin of leniency. Absurdly, Abdulmutallab is now in control."

Andy McCarthy lays bare the costs of Eric Holder's rush to indict Abdulmutallab at National Review Online:  

Eric Holder’s Justice Department rushed to file an indictment Wednesday against Flight 253 terrorist Umar Farouk Abdulmutallab. The telling document is a monument to lost opportunity. Come hell or high water, the Obama administration will press ahead with its commitment to treat al-Qaeda’s war against the United States as a crime wave best managed by the federal courts.



“Al-Qaeda,” in fact, is a term you will not find in the bare-bones, seven-page charging instrument. Nor will you encounter such words as “Yemen,” “jihad,” “terrorism” — neither “Islamic” or “Islamist.” And if you’re looking for the names of any co-conspirators — such as the al-Qaeda satellite (al-Qaeda in the Arabian Peninsula) that has publicly claimed credit for the attempted Christmas Day atrocity, or the enemy combatants who’ve been running that outfit since their improvident release from Gitmo — you’d best look elsewhere. [snip]

He’d been training with al-Qaeda for weeks in Yemen, now one of the hottest hubs of terror plotting. He was undoubtedly in a position to identify who had recruited him, who had dispatched him on his mission, and who had trained him in fashioning and detonating chemical explosives. He was in a position to tell us what al-Qaeda knows, that Janet Napolitano apparently doesn’t, about our porous airline-security system. He was, moreover, almost certainly in a position to pinpoint paramilitary training facilities, to tell us about other al-Qaeda trainees being taught to do what he was trying to do, and to fill many gaps in our knowledge of the terror network’s hierarchy, routines, and governmental connections in Yemen.

And guess who lives in Yemen.  According to the Washington Post, Yemen is crawling with "former" colleagues of Osama Bin Laden.  Take for instance, his former bodyguard:

When he served in the Afghan mountains as Osama bin Laden's bodyguard, Nasser al-Bahri said, he was known as "The Killer." Today, Bahri is a business consultant in Yemen who favors Western-style pinstriped shirts, crisp slacks and black loafers. But his ideas are still radical: Ask him whether jihadists should kill Americans on U.S. soil and he replies without hesitation, "America is a legitimate target."

His former spiritual adviser and his former personal secretary are also there:

Abdul Majid al-Zindani, bin Laden's former spiritual adviser, whom the United States has classified as a terrorist, is the most powerful religious figure here today. Senior Yemeni officials both fear him and seek his support. Nasser al-Wuhayshi -- bin Laden's former personal secretary -- is the leader of al-Qaeda in the Arabian Peninsula, which U.S. officials believe trained Abdulmutallab and equipped him with chemical explosives.

U.S. intelligence sources believe that the December 30th attack that killed seven CIA officers in Afghanistan was planned by Osama Bin Laden's inner circle.  The question that has been nagging at my heart all week is this:  If Abdulmutallab had been rigorously interrogated or even waterboarded before sundown on Christmas day, could that attack have possibly been prevented? We will never know that either.

McCarthy points out that it is not too late for the President to reconsider his position and possibly thwart the next attack:

President Obama could have designated Abdulmutallab an enemy combatant, detained him as a war prisoner, denied him counsel, and had him interrogated until we’d exhausted his reservoir of information. Indeed, the president could still do that. He could direct the attorney general to table the indictment. Then, some time down the road, he could hand Abdulmutallab back to the Justice Department for prosecution. No, we wouldn’t be able to use the fruits of his military interrogation against him. But as the indictment filed Wednesday shows, we don’t need those statements to convict him. We could convict him now.



To protect the United States, though, we don’t need Abdulmutallab’s conviction. We need his information. Wednesday’s indictment demonstrates what two weeks of Obama’s amateur-hour performance have suggested all along: We don’t have it.