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Why the Snail's Pace Justice for 9/11?

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After 9/11, 13 years ago today, military commissions were supposed to be a way to achieve swift justice for those perpetrators whom we were able to capture and bring back alive.  They were in World War II, after all.  See this post from two years ago.

Immediately upon their capture, the perpetrators had intelligence value that overrode the retribution interest in giving them their deserved punishment quickly.  That day is long since past.  That day had already passed before Barack Obama became President.  Is he actually going to leave office after two full terms without executing KSM or any of the other top leaders of this atrocity?

Attorney General Holder once said on this matter that "failure is not an option."  At this point it looks like failure is a near certainty.

Terrorist Horror, Then Golf

The title of this entry is taken from yesterday's headline in that right wing rag, the New York Times.  It refers, of course, to President Obama's ostensibly somber and angry news conference about the videotaped beheading of an American citizen by Islamic butchers, followed forthwith by a few rounds on the links.

As the Times points out, the contrast was a bit much even for the President's usual allies:
I previously noted how frivolity beat sobriety in deciding to treat the terrorist murderer in the Benghazi case, Ahmed Abu Khattala, as a defendant to be tried in civilian court rather than as an enemy combatant.  But it's worse than I thought. Andy McCarthy, the former AUSA who convicted the Blind Sheikh, explains why as only a sharp-eyed and experienced prosecutor could.  The basic problem is that  -- for reasons that cannot be other than political  --  the indictment omits essential background information needed to get the whole truth before the jury:

Khatallah has been identified by the State Department as a "senior leader" of Ansar al-Sharia, one of the al-Qaeda-tied franchises in Libya. Yet there is no mention of Ansar al-Sharia in the indictment, much less of al-Qaeda or the Islamic-supremacist ideology that ties jihadist affiliates together. In fact, the indictment does not even accuse Khatallah of being a terrorist.


Nothing about a long-running, ongoing jihadist war against the United States.

Instead, the indictment is written to portray a sudden, spontaneous eruption of violence, without much planning or warning, in which Khatallah -- who knows . . . perhaps inspired by a video -- abruptly joined a disgruntled group of protesters that turned out to include some shady terrorists motivated by . . . well, who can really say? All we know is the violence started without warning and, before you could scramble a fighter-jet or fuel up Air Force One for a Vegas campaign junket, it was all over.

There are a lot of downsides to giving enemy-combatant terrorists all the majesty of American due process. But at least it used to mean that, by the end, you'd have the truth, the whole truth, and nothing but the truth. Now, it's starting to look like what you get on the Sunday shows.

My friend Paul Mirengoff was a star student at Stanford Law and is even better now. See, e.g., his entry today on the civilian trial of terrorist warrior Ahmed Abu Khattala:

According to this report:

The Justice Department says its case against [Ahmed Abu Khattala], accused in the 2012 attacks on a U.S. diplomatic compound in Benghazi, Libya, is unusually complex and involves "novel questions of fact and law."

In a Washington, D.C., federal courtroom Tuesday, Assistant U.S. Attorney Michael DiLorenzo said the government had already begun sharing sensitive documents with defense attorneys. But many of the hundreds of people interviewed by the FBI remain overseas, and many documents are either top secret or in Arabic, or both. . . .

Fantastic! Lawyers live to try cases involving novel questions of fact and law, and judges live to try them. A good time will be had by all.

The terrorist defendant might even be convicted -- I assume he probably will be, complex though the case may be. At that point, the trial judge can lecture the defendant about the virtues of our system of justice and its ability to withstand terrorism. The defendant, and terrorists in general, will be unimpressed, but that's okay. The judge will get plenty of good press and liberals will feel good about themselves for a day.

The question whether the President could lawfully release five Taliban commanders without notifying Congress continues to roil legal academia.  In previous posts, here and here, I have chimed in, and have noted the views of others, including Prof. John Yoo of Berkeley and Prof. David Pozen of Columbia, who support my view that the President acted unlawfully.  Taking the other side in two compelling notes in the comments section to the former post, is my wife, former Scalia clerk and Associate White House Counsel, now Adjunct Professor of Law at Georgetown, Lee Liberman Otis.  Lee notes in particular the very broad Constitutional powers the President is given as commander-in-chief.

Today, another quite apt attorney, Visiting Professor Louis Fisher of the College of William and Mary Marshall-Wythe Law School, also argues that the President acted unlawfully (and hypocritically).  As he notes in his National Law Journal article:

In 2009, the Office of Legal Counsel found [Bush White House claims about the President's commander-in-chief powers] inconsistent with constitutional text. Because Article 1 grants significant war powers to Congress, legal opinions that categorically preclude Congress from enacting legislation concerning the detention, interrogation, prosecution and transfer of enemy combatants "are not sustainable," the office found. The office shared its analysis with the U.S. attorney general, the White House counsel, the legal adviser to the National Security Council, the principal deputy general counsel of the Department of Defense and several offices within the Justice Department.

Five years later, the Obama administration decided it could send five senior members of the Afghan Taliban from Guantánamo to Qatar in exchange for Sgt. Bowe Bergdahl, held by the Taliban. The administration said it did not have to comply with a statute requiring the administration to give Congress 30 days notice before transferring detainees. Before making the transfer, the Defense Department sought guidance from the Justice Department, but no one in the DOJ, including the Office of Legal Counsel, has issued a legal memo to justify these transfers.

The Seventh Circuit has its own view, reported on here.  The text of the opinion, per Judge Posner, is here.
Last week, a particularly interesting dialogue developed here between a former Scalia clerk and yours truly on whether the President broke the law in releasing the Taliban All-Terror Team without giving the required 30 days' notice to Congress.  The former Scalia clerk, Prof. Lee Otis, thought not; I disagreed.

Now comes Prof. David Pozen at Columbia, a former Stevens clerk, with another take on it.  Prof. Pozen's piece begins:

Section 1035(d) provides--without exception--that the Secretary of Defense "shall notify the appropriate committees of Congress of a determination" to transfer or release an individual detained at Guantanamo "not later than 30 days before the transfer or release of the individual."  The Secretary of Defense did not give advance notice in this case.  And yet, rather than argue that Section 1035(d) is unconstitutional as applied to the Bergdahl matter, the Administration has (as I understand it) invoked the absurd-results canon and argued that Section 1035(d) "should be construed not to apply to this unique set of circumstances."  We are asked to read the NDAA as if it exempts a sensitive prisoner swap from its congressional notification scheme, when the plain text of the statute does no such thing.

There are various frames through which this episode might be viewed:  as a dispute about the President's power over prisoners of war, the winding down of Guantanamo, or the "unique set of circumstances" behind the Bergdahl exchange.  I want to place the episode in a different and broader context, involving the Obama Administration's efforts to cope with congressional obstreperousness more generally.  Across a range of areas, this Administration has responded to perceived legislative misconduct by interpreting away legal limits that might have seemed to stand in its way.  Interpretation has been a tool of constitutional adaptation and retaliation.
At the proverbial end of the day, the moral engine of the argument for President Obama's action is that, in the United States, we do what is necessary to bring our soldiers home.  See, e.g., David Brooks's piece today in the NYT.

I agree with this.  Sgt. Bowe is/was an American soldier.  He was almost certainly a deserter, although under what circumstances remains in some doubt.  He might conceivably have been a collaborator, although much of the evidence being used to make that argument derives from his actions while with the Taliban.  Without knowing more about whether he was their comrade or their captive, such evidence is so inherently unreliable that it must be discounted.

So, yes, he was an American soldier, and for that reason alone was worth bringing home no matter what else he is, including a deserter or worse than that.

Where Obama and his apologists err is in thinking that this ends the argument.  
Among preparing for the Over-Criminalization Task Force hearing, following the fabricated waiting list scandal at the VA, and now trying to keep up with the numerous lies being peddled about the release of the Taliban All-Terror Team, I've neglected to mention one quite important story.  It's the kind of story that, in days of yore (to wit, during George Bush's presidency) was the focus of a great deal of outrage in the press, an extensive grand jury investigation, and eventually the conviction of the Vice President's chief of staff.

The current story is of the White House's leaking the name of the Afghanistan CIA station chief.  The Administration's version is that it was "inadvertent," and I lack any evidence to say otherwise.  Still, it's odd that this gross security breach is being investigated by  --  no, not the FBI  --  Obama's hand-picked in-house Counsel.

The CIA's Afghanistan station chief is in the middle of a war zone and is, to say the least, a juicy target for the Taliban.  By contrast, when Richard Armitage leaked the name of Valarie Plame, a CIA desk jockey sitting in her plush office in Langley, Virginia, the MSM went berserk.  Armitage was never indicted, but Scooter Libby was.  Libby was convicted and sentenced to a stiff fine and jail. President Bush commuted the jail term, however, after an op-ed in the Washington Post argued that this was the just outcome.

Without saying more for the moment, I cannot help but be amazed by the forgiving, if not dismissive, attitude the press has taken toward the more recent and very dangerous CIA outing, compared with the savage attitude it took toward the comparatively inconsequential Valarie Plame case.

The President has justified the deal that released five top Taliban commanders, and his refusal to notify Congress of the release in advance (as required by statute), principally on two theories.

As to the refusal of notification, the Administration has said that the President's signing statement accompanying the statute gave him authority to undertake the release in emergency circumstances without telling Congress.

As to the release itself  --  which was the price for the return of the allegedly captive Sgt. Bowe Bergdahl  --  the White House's answer (per Jay Carney) has been, "He was a prisoner in an armed conflict, a member of the military, and in that situation the United States does not leave its men and women behind."

Neither statement is true.
It's difficult to imagine an episode in which the President's disregard of a major national security law he signed last year is the least important part of the story, but Obama has pulled it off in his terror-abetting deal that will bring home Sgt. Bergdahl.

Paul Mirengoff leaves nothing to the imagination in his Powerline piece, in which he notes, inter alia:

Nearly all of the exceptional elements of Obamaism are present. The president appeases a deadly enemy (recall his statement that he hopes through the exchange to gain the trust of the Taliban); makes life more dangerous for an ally we are about to abandon (Afghanistan will bear the brunt of the terrorism unleashed by the five Taliban commanders); and disregards American law (which required him to consult with Congress). Moreover, he does all of this on behalf of an anti-American deserter and his jihadist-sympathizing father.

You couldn't make this up.

At the end of the piece, Paul quotes me asking what more Obama can do to damage the country.  Of course I don't know exactly, but there are those thousands of heroin pushers yet to get their promised clemency....

Pop quiz, class.  Who said this while getting his campaign underway in 2007:

I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation. 

Right you are!  No wonder President Obama plans to release thousands of calculating law breakers!  He can sympathize with them, being one.  His Administration cited the White House's signing statement to justify his point-blank violation of a statute enacted just last year.  The statute explicitly bars the President from releasing Gitmo prisoners without 30 days' notice to Congress.

Hey, well, look, that was then.  When a pretext must be found for returning five Jihadist generals to the field to kill more Americans, a pretext will be found.

And in case you think I'm being a rabid partisan in calling Obama a "law breaker," let me introduce you to Jeffrey Toobin of CNN.

Terrorist Convicted in NYC

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A federal jury convicted  Mustafa Kamel Mustafa this afternoon of providing material support to terrorism.  The story is here.

This is not the time to debate whether the trial should have been before a military tribunal; instead, it's the time to congratulate the US Attorney's Office for putting this menace away.  He will never see daylight again.

It is the time, however, to anticipate the defense bar's wailing that his conviction reflects erosion of the First Amendment, American paranoia after 9-11, and Islamophobia.  And no, I'm not saying he had no right to a defense; of course he had that right.  What I'm saying is that the rest of us have at least an equal right to criticize pure baloney, especially when we're paying for it.  The First Amendment exists for more than just Jihadists.

America's Political Prisoner

I wrote earlier about how the Administration's on-the-fly (and false) explanation of the Benghazi murders led to the imprisonment  --  on a "parole violation"  -- of Nakoula Nakoula.  Mr. Nakoula had the misfortune of having produced the snarky Internet video, the "Innocence of Muslims," that got dragooned as the State Department's excuse for the attack on our embassy.  The video whipped up a spontaneous mob, so the tale would be told.

Only it was a classic Inside-the-Beltway cover story.  There never was a spontaneous mob.  There was a planned terror attack, one the embassy was ill-equipped to repel because the State Department for months had been turning a deaf ear to requests for more security.

That would have made a really, really bad story for an Administration that's been telling us al Qaeda is on the run, and an even worse story for the head of the bungling, distracted State Department, a lady rumored to have political ambitions.

What to do?  What else  --  create a fall guy!!!  And who better than a shady swindler with a funny name like "Nakoula Nakoula."  Put it on him and take him off to the slammer.

The only real problem is that America, up to now, doesn't have much of a tradition of taking political prisoners.
The President has nominated for a seat on the First Circuit the ghost of America's worst federal circuit judge, Stephen Reinhardt.  Indeed, the nominee, Harvard law professor David Barron, is worse than merely Reinhardt's ghost; he's Reinhardt's ex-clerk.  I guess if you're going to learn pro-criminal extremism, you might as well learn from its Number One judicial practitioner.

But even with a Senate dominated by the President's party, Barron seems to be in trouble. As the Hill reports, Sen. Rand Paul has placed a hold on the nomination:

Sen. Rand Paul has warned Senate Majority Leader Harry Reid (D-Nev.) that he will place a hold on one of President Obama's appellate court nominees because of his role in crafting the legal basis for Obama's drone policy.

Paul, the junior Republican senator from Kentucky, has informed Reid he will object to David Barron's nomination to the 1st Circuit Court of Appeals, unless the Justice Department makes public the memos he authored justifying the killing of an American citizen in Yemen.

Talk about a conundrum!  On the face of it, Barron seems like a nominee it's worth pulling out all the stops to oppose.  But with enemies like Patrick Leahy and the ACLU (see below), should we have second thoughts?

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