Friday, May 01, 2009
ANDREW McCARTHY EXPOSES OBAMA'S "DETENTION POLICY" INSANITY
Andrew McCarthy's Letter To Attorney General Holder
UPDATED BELOW
May 1, 2009
By email (to the Counterterrorism Division) and by regular mail:
The Honorable Eric H. Holder, Jr.
Attorney General of the United States
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001
Dear Attorney General Holder:
This letter is respectfully submitted to inform you that I must decline the invitation to participate in the May 4 roundtable meeting the President’s Task Force on Detention Policy is convening with current and former prosecutors involved in international terrorism cases. An invitation was extended to me by trial lawyers from the Counterterrorism Section, who are members of the Task Force, which you are leading.
The invitation email (of April 14) indicates that the meeting is part of an ongoing effort to identify lawful policies on the detention and disposition of alien enemy combatants—or what the Department now calls “individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.” I admire the lawyers of the Counterterrorism Division, and I do not question their good faith. Nevertheless, it is quite clear—most recently, from your provocative remarks on Wednesday in Germany—that the Obama administration has already settled on a policy of releasing trained jihadists (including releasing some of them into the United States). Whatever the good intentions of the organizers, the meeting will obviously be used by the administration to claim that its policy was arrived at in consultation with current and former government officials experienced in terrorism cases and national security issues. I deeply disagree with this policy, which I believe is a violation of federal law and a betrayal of the president’s first obligation to protect the American people. Under the circumstances, I think the better course is to register my dissent, rather than be used as a prop.
Moreover, in light of public statements by both you and the President, it is dismayingly clear that, under your leadership, the Justice Department takes the position that a lawyer who in good faith offers legal advice to government policy makers—like the government lawyers who offered good faith advice on interrogation policy—may be subject to investigation and prosecution for the content of that advice, in addition to empty but professionally damaging accusations of ethical misconduct. Given that stance, any prudent lawyer would have to hesitate before offering advice to the government.
Beyond that, as elucidated in my writing (including my proposal for a new national security court, which I understand the Task Force has perused), I believe alien enemy combatants should be detained at Guantanamo Bay (or a facility like it) until the conclusion of hostilities. This national defense measure is deeply rooted in the venerable laws of war and was reaffirmed by the Supreme Court in the 2004 Hamdi case. Yet, as recently as Wednesday, you asserted that, in your considered judgment, such notions violate America’s “commitment to the rule of law.” Indeed, you elaborated, “Nothing symbolizes our [adminstration’s] new course more than our decision to close the prison at Guantanamo Bay…. President Obama believes, and I strongly agree, that Guantanamo has come to represent a time and an approach that we want to put behind us: a disregard for our centuries-long respect for the rule of law[.]” (Emphasis added.)
Given your policy of conducting ruinous criminal and ethics investigations of lawyers over the advice they offer the government, and your specific position that the wartime detention I would endorse is tantamount to a violation of law, it makes little sense for me to attend the Task Force meeting. After all, my choice would be to remain silent or risk jeopardizing myself.
For what it may be worth, I will say this much. For eight years, we have had a robust debate in the United States about how to handle alien terrorists captured during a defensive war authorized by Congress after nearly 3000 of our fellow Americans were annihilated. Essentially, there have been two camps. One calls for prosecution in the civilian criminal justice system, the strategy used throughout the 1990s. The other calls for a military justice approach of combatant detention and war-crimes prosecutions by military commission. Because each theory has its downsides, many commentators, myself included, have proposed a third way: a hybrid system, designed for the realities of modern international terrorism—a new system that would address the needs to protect our classified defense secrets and to assure Americans, as well as our allies, that we are detaining the right people.
There are differences in these various proposals. But their proponents, and adherents to both the military and civilian justice approaches, have all agreed on at least one thing: Foreign terrorists trained to execute mass-murder attacks cannot simply be released while the war ensues and Americans are still being targeted. We have already released too many jihadists who, as night follows day, have resumed plotting to kill Americans. Indeed, according to recent reports, a released Guantanamodetainee is now leading Taliban combat operations in Afghanistan, where President Obama has just sent additional American forces.
The Obama campaign smeared Guantanamo Bay as a human rights blight. Consistent with that hyperbolic rhetoric, the President began his administration by promising to close the detention camp within a year. The President did this even though he and you (a) agree Gitmo is a top-flight prison facility, (b) acknowledge that our nation is still at war, and (c) concede that many Gitmo detainees are extremely dangerous terrorists who cannot be tried under civilian court rules. Patently, the commitment to close Guantanamo Bay within a year was made without a plan for what to do with these detainees who cannot be tried. Consequently, the Detention Policy Task Force is not an effort to arrive at the best policy. It is an effort to justify a bad policy that has already been adopted: to wit, the Obama administration policy to release trained terrorists outright if that’s what it takes to close Gitmo by January.
Obviously, I am powerless to stop the administration from releasing top al Qaeda operatives who planned mass-murder attacks against American cities—like Binyam Mohammed (the accomplice of “Dirty Bomber” Jose Padilla) whom the administration recently transferred to Britain, where he is now at liberty and living on public assistance. I am similarly powerless to stop the administration from admitting into the United States such alien jihadists as the 17 remaining Uighur detainees. According to National Intelligence Director Dennis Blair, the Uighurs will apparently live freely, on American taxpayer assistance, despite the facts that they are affiliated with a terrorist organization and have received terrorist paramilitary training. Under federal immigration law (the 2005 REAL ID Act), those facts render them excludable from theUnited States. The Uighurs’ impending release is thus a remarkable development given the Obama administration’s propensity to deride its predecessor’s purported insensitivity to the rule of law.
I am, in addition, powerless to stop the President, as he takes these reckless steps, from touting his Detention Policy Task Force as a demonstration of his national security seriousness. But I can decline to participate in the charade.
Finally, let me repeat that I respect and admire the dedication of Justice Department lawyers, whom I have tirelessly defended since I retired in 2003 as a chief assistant U.S. attorney in the Southern District of New York. It was a unique honor to serve for nearly twenty years as a federal prosecutor, under administrations of both parties. It was as proud a day as I have ever had when the trial team I led was awarded the Attorney General’s Exceptional Service Award in 1996, after we secured the convictions of Sheikh Omar Abdel Rahman and his underlings for waging a terrorist war against the United States. I particularly appreciated receiving the award from Attorney General Reno—as I recounted in Willful Blindness, my book about the case, without her steadfastness against opposition from short-sighted government officials who wanted to release him, the “blind sheikh” would never have been indicted, much less convicted and so deservedly sentenced to life-imprisonment. In any event, I’ve always believed defending our nation is a duty of citizenship, not ideology. Thus, my conservative political views aside, I’ve made myself available to liberal and conservative groups, to Democrats and Republicans, who’ve thought tapping my experience would be beneficial. It pains me to decline your invitation, but the attendant circumstances leave no other option.
Very truly yours,
/S/
Andrew C. McCarthy
cc: Sylvia T. Kaser and John DePue
National Security Division, Counterterrorism Section
UPDATE
Saying No to Justice
Why I declined to meet with the President’s Detention Policy Task Force.
By Andrew C. McCarthy
I did something today that I’ve never done before. The Department of Justice, which I proudly served for a quarter century as an assistant U.S. attorney and a deputy U.S. marshal, asked me for help, and I declined. Actually, what I declined to do was attend a meeting. My hope is that the dissent I am registering — to the administration’s disastrous policies of releasing trained terrorists and threatening prosecution against government lawyers — will help the department and the Obama administration, even if they don’t want to hear it.
At the start of his term, President Obama directed Attorney General Eric Holder to head up the President’s Detention Policy Task Force to study detention, trial, and other issues relating to alien enemy combatants — though that venerable law-of-war term has been purged in favor of “individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.” The attorney general has assigned lawyers in the department’s Counterterrorism Division to organize the effort. Those lawyers invited me, among other former and current prosecutors experienced in terrorism and national-security matters, to attend a roundtable session next week, to sort through the vexing legal challenges of modern international terrorism.
I’ve declined the invitation. It pained me to do it. I’ve always believed enforcing our laws and defending our nation are duties of citizenship, not ideology. My conservative political views aside, I regularly make myself available to liberal and conservative groups, to Democrats and Republicans, if they think tapping my national-security or law-enforcement experience would be beneficial.
This time, though, I had to say no. As I explain to Attorney General Holder in a letter, which was posted this morning on the website of the National Review Institute, I declined for two reasons.
First, President Obama and Attorney General Holder have created an untenable situation for lawyers asked to advise the government on policy matters.
Former Justice Department attorneys John Yoo (now a law professor at Berkeley) and Jay Bybee (now a federal appeals-court judge in California), as well as other government attorneys, were asked during the emergency conditions that followed the 9/11 attacks to advise Bush administration policymakers on U.S. interrogation law. They did that in good faith and, despite the fact that it’s now de rigueur to castigate them, quite reasonably (as I’ve argued in an online Federalist Society debate, see here). For their service to our country, they are now being tormented by the Obama administration with both a criminal investigation and an ethics inquiry by Justice’s Office of Professional Responsibility. (There have even been calls on the left for Judge Bybee’s impeachment, which — even if he had done something wrong years earlier as a Justice Department lawyer — would be absurd: The Constitution reserves judicial impeachment for misconduct committed during the judge’s tenure on the bench, and Bybee is an excellent judge.)
A little over a week ago, the Obama administration recklessly revealed publicly (i.e., to al-Qaeda) the details of enhanced interrogation tactics used by the CIA against top-tier terrorists. The decision to employ these tactics was not made by Yoo, Bybee, or other government lawyers. They did not look to press these practices on government agents. Rather, the CIA initiated the controversy by asking for clarification of its authority. President Bush and his top national-security officials, including CIA Director George Tenet, were responsible for making the policy. The attorneys merely gave their best legal advice — the policymakers didn’t have to follow it, and it was the CIA, not the lawyers, that conducted questioning and made judgments about how it was affecting the terrorists.
Yet President Obama’s antiwar base is in a froth — so much so that he has unleashed his Justice Department to criminalize political disputes after claiming for weeks that he did not want to do this. And the president is being a bully about it. He obviously doesn’t want to incur the wrath of leaking spooks, so he has said CIA agents won’t be investigated (the right result reached for self-interested reasons). He hasn’t worked up the nerve to go after his predecessor, who ordered the policy, and Tenet — a Democrat and one of Bush’s Clinton-holdovers — is another politically inconvenient target. That leaves the lawyers — relatively unknown and thus easily demonized — as the feast for the piranhas.
Any experienced prosecutor would know there is no criminal case here. And let’s assume you think the lawyers gave bad advice — as many say they do, particularly if they haven’t read the memos. Bad legal advice given in good faith is not an ethical violation. There’s not a lawyer in America who hasn’t given bad legal advice at some point — certainly not in the government. It is disgraceful to target these lawyers for this kind of persecution, to force them to retain counsel to defend their wartime service to the country, and to put them in fear of criminal, professional, and financial repercussions. It should be offensive to all people of good will, regardless of their politics or of where they come out on the explosive issue of coercive interrogation. We can arrive at a sound policy, or not, without demonizing our adversaries as crooks and cads.
But that’s not how the attorney general sees it. For all his confirmation-hearing talk about learning his lesson from the Marc Rich debacle and being strong enough to stand up to a president who tries to politicize the Justice Department, Holder took the buck that Obama decided stops at the Justice Department. The attorney general dutifully promised to “follow the evidence wherever it takes us.”
That puts every lawyer who is asked to advise the government on notice: If the Holder Justice Department decides your good-faith advice promoted what it considers illegal activity, you could face criminal prosecution or ruinous ethical charges. That turns out to be a problem for me.
The government has asked for my legal advice on detainees. And worse, I already know that Holder thinks the advice I would give counsels illegal activity. That is, I believe alien enemy combatants should be detained, until the conclusion of hostilities, at Guantanamo Bay (or someplace just like it). Yet, in a provocative speech in Germany on Wednesday, the attorney general framed that notion as a violation of “the rule of law.” Continuing the new administration’s unbecoming propensity to vilify its predecessor, Holder told his audience, “Nothing symbolizes our [adminstration’s] new course more than our decision to close the prison at Guantanamo Bay. . . . President Obama believes, and I strongly agree, that Guantanamo has come to represent a time and an approach that we want to put behind us: a disregard for our centuries-long respect for the rule of law.”
Was Holder just pandering, as he was when he called Americans “cowards” on the issue of race? Perhaps. From my perspective, though, I’m a lawyer who’s been asked to give advice to the government by an administration that says such advice could lead to criminal investigation and professional discipline. And although the advice I would give is firmly rooted in the laws of war, and was reaffirmed by the Supreme Court in the 2004 Hamdi decision, this administration regards such detention as running afoul of the rule of law. Thus, as I wrote to the attorney general:
For all their talk about “the rule of law,” President Obama and Attorney General Holder have to know this policy is illegal. In 2005, Congress provided in the REAL ID Act that aliens who’ve been affiliated with a terrorist organization or who’ve received paramilitary training (which has been a staple of virtually every jihadist plot against the United States) are excludable from the United States. Moreover, even if the administration were not riding roughshod over federal immigration law, it is endangering the American people. The sophistry required to believe that having people who want to kill us locked up is more perilous than loosing them on civilian populations is so absurd it nearly defies description.
To satisfy his antiwar base and to put paid to commitments offered by his top campaign advisers (like Eric Holder), President Obama promised to close Guantanamo Bay within a year, despite having no plan for what to do about the terrorists there, many of whom cannot be tried under the standards of the civilian justice system. Military proceedings are anathema to the administration — many of whose lawyers either represented the Gitmo detainees or come from firms that did. (Holder’s former firm, for example, brags on its website that it represents detainees in their wartime lawsuits against the American people.) And the administration is evidently not very interested in exploring novel systems of preventive detention, such as my proposal for a “national security court,” which would require extensive legislative work. Instead, the Obama policy is simply to release our enemies — knowing many are certain to return to the jihad — if that’s what it takes to comply with the president’s promise to close Gitmo by January.
Consequently, the President’s Detention Policy Task Force is not an effort to arrive at the best counterterrorism policy. It is an effort to justify a bad policy that has already been made — to be able to tell the American people that this suicidal approach was arrived at in consultation with experienced terrorism prosecutors and national-security officials.
As I told the attorney general in my letter, “I am powerless to stop the president, as he takes these reckless steps, from touting his Detention Policy Task Force as a demonstration of his national security seriousness. But I can decline to participate in the charade.”
— National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).
"The sophistry required to believe that having people who want to kill us locked up is more perilous than loosing them on civilian populations is so absurd it nearly defies description."
UPDATED BELOW
May 1, 2009
By email (to the Counterterrorism Division) and by regular mail:
The Honorable Eric H. Holder, Jr.
Attorney General of the United States
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001
Dear Attorney General Holder:
This letter is respectfully submitted to inform you that I must decline the invitation to participate in the May 4 roundtable meeting the President’s Task Force on Detention Policy is convening with current and former prosecutors involved in international terrorism cases. An invitation was extended to me by trial lawyers from the Counterterrorism Section, who are members of the Task Force, which you are leading.
The invitation email (of April 14) indicates that the meeting is part of an ongoing effort to identify lawful policies on the detention and disposition of alien enemy combatants—or what the Department now calls “individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.” I admire the lawyers of the Counterterrorism Division, and I do not question their good faith. Nevertheless, it is quite clear—most recently, from your provocative remarks on Wednesday in Germany—that the Obama administration has already settled on a policy of releasing trained jihadists (including releasing some of them into the United States). Whatever the good intentions of the organizers, the meeting will obviously be used by the administration to claim that its policy was arrived at in consultation with current and former government officials experienced in terrorism cases and national security issues. I deeply disagree with this policy, which I believe is a violation of federal law and a betrayal of the president’s first obligation to protect the American people. Under the circumstances, I think the better course is to register my dissent, rather than be used as a prop.
Moreover, in light of public statements by both you and the President, it is dismayingly clear that, under your leadership, the Justice Department takes the position that a lawyer who in good faith offers legal advice to government policy makers—like the government lawyers who offered good faith advice on interrogation policy—may be subject to investigation and prosecution for the content of that advice, in addition to empty but professionally damaging accusations of ethical misconduct. Given that stance, any prudent lawyer would have to hesitate before offering advice to the government.
Beyond that, as elucidated in my writing (including my proposal for a new national security court, which I understand the Task Force has perused), I believe alien enemy combatants should be detained at Guantanamo Bay (or a facility like it) until the conclusion of hostilities. This national defense measure is deeply rooted in the venerable laws of war and was reaffirmed by the Supreme Court in the 2004 Hamdi case. Yet, as recently as Wednesday, you asserted that, in your considered judgment, such notions violate America’s “commitment to the rule of law.” Indeed, you elaborated, “Nothing symbolizes our [adminstration’s] new course more than our decision to close the prison at Guantanamo Bay…. President Obama believes, and I strongly agree, that Guantanamo has come to represent a time and an approach that we want to put behind us: a disregard for our centuries-long respect for the rule of law[.]” (Emphasis added.)
Given your policy of conducting ruinous criminal and ethics investigations of lawyers over the advice they offer the government, and your specific position that the wartime detention I would endorse is tantamount to a violation of law, it makes little sense for me to attend the Task Force meeting. After all, my choice would be to remain silent or risk jeopardizing myself.
For what it may be worth, I will say this much. For eight years, we have had a robust debate in the United States about how to handle alien terrorists captured during a defensive war authorized by Congress after nearly 3000 of our fellow Americans were annihilated. Essentially, there have been two camps. One calls for prosecution in the civilian criminal justice system, the strategy used throughout the 1990s. The other calls for a military justice approach of combatant detention and war-crimes prosecutions by military commission. Because each theory has its downsides, many commentators, myself included, have proposed a third way: a hybrid system, designed for the realities of modern international terrorism—a new system that would address the needs to protect our classified defense secrets and to assure Americans, as well as our allies, that we are detaining the right people.
There are differences in these various proposals. But their proponents, and adherents to both the military and civilian justice approaches, have all agreed on at least one thing: Foreign terrorists trained to execute mass-murder attacks cannot simply be released while the war ensues and Americans are still being targeted. We have already released too many jihadists who, as night follows day, have resumed plotting to kill Americans. Indeed, according to recent reports, a released Guantanamodetainee is now leading Taliban combat operations in Afghanistan, where President Obama has just sent additional American forces.
The Obama campaign smeared Guantanamo Bay as a human rights blight. Consistent with that hyperbolic rhetoric, the President began his administration by promising to close the detention camp within a year. The President did this even though he and you (a) agree Gitmo is a top-flight prison facility, (b) acknowledge that our nation is still at war, and (c) concede that many Gitmo detainees are extremely dangerous terrorists who cannot be tried under civilian court rules. Patently, the commitment to close Guantanamo Bay within a year was made without a plan for what to do with these detainees who cannot be tried. Consequently, the Detention Policy Task Force is not an effort to arrive at the best policy. It is an effort to justify a bad policy that has already been adopted: to wit, the Obama administration policy to release trained terrorists outright if that’s what it takes to close Gitmo by January.
Obviously, I am powerless to stop the administration from releasing top al Qaeda operatives who planned mass-murder attacks against American cities—like Binyam Mohammed (the accomplice of “Dirty Bomber” Jose Padilla) whom the administration recently transferred to Britain, where he is now at liberty and living on public assistance. I am similarly powerless to stop the administration from admitting into the United States such alien jihadists as the 17 remaining Uighur detainees. According to National Intelligence Director Dennis Blair, the Uighurs will apparently live freely, on American taxpayer assistance, despite the facts that they are affiliated with a terrorist organization and have received terrorist paramilitary training. Under federal immigration law (the 2005 REAL ID Act), those facts render them excludable from theUnited States. The Uighurs’ impending release is thus a remarkable development given the Obama administration’s propensity to deride its predecessor’s purported insensitivity to the rule of law.
I am, in addition, powerless to stop the President, as he takes these reckless steps, from touting his Detention Policy Task Force as a demonstration of his national security seriousness. But I can decline to participate in the charade.
Finally, let me repeat that I respect and admire the dedication of Justice Department lawyers, whom I have tirelessly defended since I retired in 2003 as a chief assistant U.S. attorney in the Southern District of New York. It was a unique honor to serve for nearly twenty years as a federal prosecutor, under administrations of both parties. It was as proud a day as I have ever had when the trial team I led was awarded the Attorney General’s Exceptional Service Award in 1996, after we secured the convictions of Sheikh Omar Abdel Rahman and his underlings for waging a terrorist war against the United States. I particularly appreciated receiving the award from Attorney General Reno—as I recounted in Willful Blindness, my book about the case, without her steadfastness against opposition from short-sighted government officials who wanted to release him, the “blind sheikh” would never have been indicted, much less convicted and so deservedly sentenced to life-imprisonment. In any event, I’ve always believed defending our nation is a duty of citizenship, not ideology. Thus, my conservative political views aside, I’ve made myself available to liberal and conservative groups, to Democrats and Republicans, who’ve thought tapping my experience would be beneficial. It pains me to decline your invitation, but the attendant circumstances leave no other option.
Very truly yours,
/S/
Andrew C. McCarthy
cc: Sylvia T. Kaser and John DePue
National Security Division, Counterterrorism Section
UPDATE
Saying No to Justice
Why I declined to meet with the President’s Detention Policy Task Force.
By Andrew C. McCarthy
I did something today that I’ve never done before. The Department of Justice, which I proudly served for a quarter century as an assistant U.S. attorney and a deputy U.S. marshal, asked me for help, and I declined. Actually, what I declined to do was attend a meeting. My hope is that the dissent I am registering — to the administration’s disastrous policies of releasing trained terrorists and threatening prosecution against government lawyers — will help the department and the Obama administration, even if they don’t want to hear it.
At the start of his term, President Obama directed Attorney General Eric Holder to head up the President’s Detention Policy Task Force to study detention, trial, and other issues relating to alien enemy combatants — though that venerable law-of-war term has been purged in favor of “individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.” The attorney general has assigned lawyers in the department’s Counterterrorism Division to organize the effort. Those lawyers invited me, among other former and current prosecutors experienced in terrorism and national-security matters, to attend a roundtable session next week, to sort through the vexing legal challenges of modern international terrorism.
I’ve declined the invitation. It pained me to do it. I’ve always believed enforcing our laws and defending our nation are duties of citizenship, not ideology. My conservative political views aside, I regularly make myself available to liberal and conservative groups, to Democrats and Republicans, if they think tapping my national-security or law-enforcement experience would be beneficial.
This time, though, I had to say no. As I explain to Attorney General Holder in a letter, which was posted this morning on the website of the National Review Institute, I declined for two reasons.
First, President Obama and Attorney General Holder have created an untenable situation for lawyers asked to advise the government on policy matters.
Former Justice Department attorneys John Yoo (now a law professor at Berkeley) and Jay Bybee (now a federal appeals-court judge in California), as well as other government attorneys, were asked during the emergency conditions that followed the 9/11 attacks to advise Bush administration policymakers on U.S. interrogation law. They did that in good faith and, despite the fact that it’s now de rigueur to castigate them, quite reasonably (as I’ve argued in an online Federalist Society debate, see here). For their service to our country, they are now being tormented by the Obama administration with both a criminal investigation and an ethics inquiry by Justice’s Office of Professional Responsibility. (There have even been calls on the left for Judge Bybee’s impeachment, which — even if he had done something wrong years earlier as a Justice Department lawyer — would be absurd: The Constitution reserves judicial impeachment for misconduct committed during the judge’s tenure on the bench, and Bybee is an excellent judge.)
A little over a week ago, the Obama administration recklessly revealed publicly (i.e., to al-Qaeda) the details of enhanced interrogation tactics used by the CIA against top-tier terrorists. The decision to employ these tactics was not made by Yoo, Bybee, or other government lawyers. They did not look to press these practices on government agents. Rather, the CIA initiated the controversy by asking for clarification of its authority. President Bush and his top national-security officials, including CIA Director George Tenet, were responsible for making the policy. The attorneys merely gave their best legal advice — the policymakers didn’t have to follow it, and it was the CIA, not the lawyers, that conducted questioning and made judgments about how it was affecting the terrorists.
Yet President Obama’s antiwar base is in a froth — so much so that he has unleashed his Justice Department to criminalize political disputes after claiming for weeks that he did not want to do this. And the president is being a bully about it. He obviously doesn’t want to incur the wrath of leaking spooks, so he has said CIA agents won’t be investigated (the right result reached for self-interested reasons). He hasn’t worked up the nerve to go after his predecessor, who ordered the policy, and Tenet — a Democrat and one of Bush’s Clinton-holdovers — is another politically inconvenient target. That leaves the lawyers — relatively unknown and thus easily demonized — as the feast for the piranhas.
Any experienced prosecutor would know there is no criminal case here. And let’s assume you think the lawyers gave bad advice — as many say they do, particularly if they haven’t read the memos. Bad legal advice given in good faith is not an ethical violation. There’s not a lawyer in America who hasn’t given bad legal advice at some point — certainly not in the government. It is disgraceful to target these lawyers for this kind of persecution, to force them to retain counsel to defend their wartime service to the country, and to put them in fear of criminal, professional, and financial repercussions. It should be offensive to all people of good will, regardless of their politics or of where they come out on the explosive issue of coercive interrogation. We can arrive at a sound policy, or not, without demonizing our adversaries as crooks and cads.
But that’s not how the attorney general sees it. For all his confirmation-hearing talk about learning his lesson from the Marc Rich debacle and being strong enough to stand up to a president who tries to politicize the Justice Department, Holder took the buck that Obama decided stops at the Justice Department. The attorney general dutifully promised to “follow the evidence wherever it takes us.”
That puts every lawyer who is asked to advise the government on notice: If the Holder Justice Department decides your good-faith advice promoted what it considers illegal activity, you could face criminal prosecution or ruinous ethical charges. That turns out to be a problem for me.
The government has asked for my legal advice on detainees. And worse, I already know that Holder thinks the advice I would give counsels illegal activity. That is, I believe alien enemy combatants should be detained, until the conclusion of hostilities, at Guantanamo Bay (or someplace just like it). Yet, in a provocative speech in Germany on Wednesday, the attorney general framed that notion as a violation of “the rule of law.” Continuing the new administration’s unbecoming propensity to vilify its predecessor, Holder told his audience, “Nothing symbolizes our [adminstration’s] new course more than our decision to close the prison at Guantanamo Bay. . . . President Obama believes, and I strongly agree, that Guantanamo has come to represent a time and an approach that we want to put behind us: a disregard for our centuries-long respect for the rule of law.”
Was Holder just pandering, as he was when he called Americans “cowards” on the issue of race? Perhaps. From my perspective, though, I’m a lawyer who’s been asked to give advice to the government by an administration that says such advice could lead to criminal investigation and professional discipline. And although the advice I would give is firmly rooted in the laws of war, and was reaffirmed by the Supreme Court in the 2004 Hamdi decision, this administration regards such detention as running afoul of the rule of law. Thus, as I wrote to the attorney general:
Given your policy of conducting ruinous criminal and ethics investigations of lawyers over the advice they offer the government, and your specific position that the wartime detention I would endorse is tantamount to a violation of law, it makes little sense for me to attend the Task Force meeting. After all, my choice would be to remain silent or risk jeopardizing myself.The second reason for declining the Justice Department’s request is that the exercise known as the “President’s Detention Policy Task Force” is a farce. The administration has already settled on a detainee policy: It is simply going to release trained jihadists. Holder said as much in his Germany speech. In the irrational world he inhabits, the existence of Guantanamo Bay, where dangerous terrorists cannot harm anyone, is more of a security threat than jihadists roaming free, plotting to menace and murder us. That’s why the administration just released Binyam Mohammed, who conspired with Khalid Sheikh Mohammed and “Dirty Bomber” Jose Padilla to execute post-9/11 bombings in American cities. That’s why Holder will soon announce (perhaps as early as today) that the Chinese Uighur detainees — who’ve been affiliated with a designated terrorist organization and who’ve received paramilitary training at al-Qaeda camps — will not only be set free in the United States but will, according to National Intelligence Director Dennis Blair, subsist on the support of the American taxpayer.
For all their talk about “the rule of law,” President Obama and Attorney General Holder have to know this policy is illegal. In 2005, Congress provided in the REAL ID Act that aliens who’ve been affiliated with a terrorist organization or who’ve received paramilitary training (which has been a staple of virtually every jihadist plot against the United States) are excludable from the United States. Moreover, even if the administration were not riding roughshod over federal immigration law, it is endangering the American people. The sophistry required to believe that having people who want to kill us locked up is more perilous than loosing them on civilian populations is so absurd it nearly defies description.
To satisfy his antiwar base and to put paid to commitments offered by his top campaign advisers (like Eric Holder), President Obama promised to close Guantanamo Bay within a year, despite having no plan for what to do about the terrorists there, many of whom cannot be tried under the standards of the civilian justice system. Military proceedings are anathema to the administration — many of whose lawyers either represented the Gitmo detainees or come from firms that did. (Holder’s former firm, for example, brags on its website that it represents detainees in their wartime lawsuits against the American people.) And the administration is evidently not very interested in exploring novel systems of preventive detention, such as my proposal for a “national security court,” which would require extensive legislative work. Instead, the Obama policy is simply to release our enemies — knowing many are certain to return to the jihad — if that’s what it takes to comply with the president’s promise to close Gitmo by January.
Consequently, the President’s Detention Policy Task Force is not an effort to arrive at the best counterterrorism policy. It is an effort to justify a bad policy that has already been made — to be able to tell the American people that this suicidal approach was arrived at in consultation with experienced terrorism prosecutors and national-security officials.
As I told the attorney general in my letter, “I am powerless to stop the president, as he takes these reckless steps, from touting his Detention Policy Task Force as a demonstration of his national security seriousness. But I can decline to participate in the charade.”
— National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).
