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Do Not Forget. Do Not Repeat.

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Fourteen years ago today, the worst crime in American history was committed.  For a time, we came together and realized that business as usual would not do.  Some people have very short memories, and many people have slipped back into the casual attitude toward national security that enabled Al Qaeda to perpetrate this crime.  Some contend that the Constitution requires us to dismantle the measures we put in place that successfully prevented a repeat of this crime.  It does not.

The great Justice Robert Jackson nailed it in 1949:  "The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

Add to this the famous saying of George Santayana:  "Those who cannot remember the past are condemned to repeat it."

We must not forget.  We must not repeat.

Homeless, Therefore Start Shooting

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While decent people are outraged by prosecutorial lying, no one even bats an eyelash when defense counsel spin their yarns.  It's what they do.  The basics are easy:  The client is almost always guilty; telling the truth is thus the fast road to jail; therefore make something up.  That's how it works.  Whether it should work that way is another matter, but that is for a different entry.

This is by way of introducing today's AP story about the Jihadist who attempted, but was foiled at, mass murder on a French train. Kent wrote about it here and here.  The would-be killer, Ayoub El-Khazzani, has now lawyered up.  Counsel's name is Sophie David, and this is what she has to say:

"He is dumbfounded that his action is being characterized as terrorism," said [Ms.] David, a lawyer in Arras, where the train was rerouted to arrest El-Khazzani -- now being questioned outside Paris by anti-terrorism police.
He described himself as homeless and David said she had "no doubt" this was true, saying he was "very, very thin" as if suffering from malnutrition and "with a very wild look in his eyes."

For sure.  When you're homeless, the thing to do is grab an assault rifle and go to town.  Why would anyone think otherwise?

But wait, there's more.

Update On French Train Story

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As often happens, the initial report on the attack on the French train was incorrect in a few particulars.  It looks like four people heroically stopped this apparently terrorist attack:  two American servicemen, one American civilian, and one Frenchman. Sam Schechner and Julian E. Barnes report for the WSJ:

Authorities praised two U.S. military members and their friend who tackled and subdued a man armed with guns and a box cutter on a Paris-bound train Friday as it sped through Belgium, breaking up what could have been a deadly terrorist attack.

The three Americans were seated on the train when they heard a gunshot and breaking glass, according to accounts from one of the men and a U.S. official briefed on the attack.

Crouching behind their seats, the Americans, who are childhood friends, decided they had to act. Airman First Class Spencer Stone, 23 years old, ran toward the gunman and tackled him.

"I told him to go, and he went," Alek Skarlatos, 22, a member of the Oregon National Guard who had been deployed in Afghanistan, said Saturday.

Darren Boyle has this story, with the above headline, in the Daily Mail of London.

Two unarmed US Marines on board a high-speed train between Amsterdam and Paris foiled a terrorist attack after a gunman opened fire with an assault rifle, wounding three people.

The 26-year-old Moroccan national, who was known to security services, came out of the toilet brandishing the gun and opened fire. Fortunately, two US Marines were nearby and overpowered him before he could massacre passengers.

The suspected terrorist had at least nine full magazines of ammunition holding almost 300 rounds. He was also carrying a knife.

Unfortunately, one of the Marines was shot and is believed to be in a critical condition. It is feared that he was shot in the neck by the gunman.
Two unarmed Marines took down a guy with a Kalashnikov, saving God knows how many lives.  Now there is a profile in courage.  Let us pray for the wounded hero.

Update:   The headline now reads, "Unarmed US Marines foil suspected terrorist attack onboard high-speed train between Amsterdam and Paris after they take down Kalashnikov-wielding Moroccan gunman known to intelligence services"

Update 2:  Turns out they aren't Marines, but the essential parts of the story are correct.  See next post.

Church Bombings in New Mexico

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Walter Rubel reports for the Las Cruces Sun-News:

Explosions about a half hour apart shattered the serenity of morning services at two Las Cruces churches Sunday, but caused no injuries and only minor damage, police said.

The explosions happened at Calvary Baptist Church, 1800 S. Locust, shortly after 8 a.m. and Holy Cross Catholic Church, 1327 N. Miranda, about a half hour later. The explosion at Holy Cross took place in a trash can just outside the entrance of the church as services for the 8 a.m. Mass were taking place.

*                                              *                                           *

At a press conference Sunday night, Gov. Susana Martinez said that only a "coward" would place an explosive device in a church. She vowed that the person responsible would be caught, and urged people to continue to attend church services.

"Whoever did this will feel the full pressure of the law," she said. "If your intention was to bring fear to those who worship, you have failed."

French Surveillance Law Upheld

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Sam Schechner and Matthew Dalton report in the WSJ:

PARIS--France's top constitutional court mostly upheld a new French surveillance law that would give intelligence services broad new powers to spy in France and abroad.

The court-backed provisions of the law allow a wide range of new surveillance techniques meant for the Internet age, including the collection of "metadata" about online traffic and the use of software that can monitor every keystroke on a computer. The court said intelligence services can use these tools without approval of a judge, though the government must still seek permission from an independent body created to oversee surveillance activities.

The court, known as the Constitutional Council, did strike down a provision of the law that would allow emergency surveillance without the approval of the prime minister or another minister in the government.
Congress is presently debating whether and to what extent to re-authorize bulk collection of telephone records, a key provision set forth in Section 215 of the Patriot Act.  My friend Rachel Brand, a former Assistant Attorney General for the Office of Legal Policy, writes an informative piece about it in the Christian Science Monitor. She notes, among other things:

[T]he question before Congress is not whether to reauthorize or prohibit the bulk telephone records program that has garnered so much attention. It is whether to reauthorize Section 215 itself. This authority was enacted after 9/11 to remedy the problem that officers conducting foreign intelligence investigations of international terrorism and espionage did not have a basic investigative tool available even in ordinary criminal investigations. The telephone records program conducted by the NSA is only one application of that authority. If Congress allows Section 215 to expire, it will not just eliminate that program; it will do away entirely with an essential investigative tool.
Punishment for crime involves both judicial and executive discretion.  The sentence in years (or life) is imposed by the trial court, but where the convict actually is in those years is typically an executive decision.  That may involve which prison he is sent to, whether he is inside or outside prison (i.e., parole), or even which country he is in.

Khalid Al Fawwaz was sentenced today for his part in the 1998 Embassy Bombing plot.  He received three life sentences and a ten-year sentence, concurrent.  And Judge Kaplan added this:

The Court makes the following recommendation to the Department of Justice: The Court is mindful of the fact that defendant may have the ability to apply to the U.S. Department of Justice under the international prisoner transfer program to be allowed to serve some or all of his sentence in another nation. Although a decision on any such application, if one is made, would be up to the Department of Justice, the Court strongly recommends that any such application be denied. The defendant has been convicted of very serious crimes against American citizens. His punishment ought to be served in, and more particularly, always remain under the control of the United States of America.
Now that's refreshing to hear from a federal judge.
Denise Lavoie reports for Associated Press:

[Defense attorney David] Bruck urged the jury to sentence the defendant [Dzhokhar Tsarnaev] to life in prison without the possibility of ever being released.

"His legal case will be over for good, and no martyrdom, just years and years of punishment," the lawyer said. "All the while, society is protected."

I am reluctant to call anyone a liar based on a press report, as I have been quoted out of context a time or three myself, but if this report is accurate and in context then Bruck told the jury a bald-faced lie in open court.

Bruck knows, I know, and everyone knowledgeable in the field knows that if the jury returns a life verdict then Tsarnaev will have a right to appeal and then a right to file a motion to vacate his sentence under 28 U.S.C. ยง2255.  By no stretch of the imagination will "his legal case be over for good."  That is absolutely false.

Tsarnaev, Silence, and Remorse, Part II

Kent has noted that, on the current uncertain state of the law, prosecutors would be taking a risk if they use Tsarnaev's (presumed) silence as evidence of lack of remorse.  I concur.  But there's more to this story.

At first, I agreed with the conventional wisdom that defense counsel would not call their client to the stand.  Now, I have my doubts.  The government's evidence of the savagery and cruelty of this crime in my view makes the death penalty likely unless the defense can move the ball.

I think their best shot to avoid lethal injection is to call Tsarnaev and have him show remorse.  If he does so, and makes a convincing showing, I think he lives. It would help if he broke down in tears of grief in a way that struck the jury as sincere, and not a coached performance.

And there's the rub.  I have seen not a lick of evidence that Tsarnaev actually feels any differently than he did the day of his capture.  That afternoon, he scribbled a note to the effect that he was in a Holy War against the United States, and if there was "collateral damage," in the phrase made immortal by his fellow butcher Timothy McVeigh, well......tough.

My guess is that it will depend on defense counsel's assessment whether Tsarnaev can pull it off, and that he won't break out in an anti-American diatribe during cross-examination.  Having to make judgments like that is one of many reasons I'm happy I did not become a defense lawyer.

20 Years Ago and Today


It was 20 years ago today that a domestic terrorist murdered 168 people in Oklahoma City, setting off a vehicle bomb in front of the federal building.  In this famous photograph by Charles Porter IV, fireman Chris Fields cradles infant Baylee Almon, who did not survive.

Timothy McVeigh was sentenced to death for this crime on August 14, 1997.  He was executed June 11, 2001, less than four years later.  Why so quickly?  What lesson is there for those seeking justice in the present day?

Guilty as Hell

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Dzhokhar Tsarnaev has been convicted on all 30 charges against him, including 17 punishable by death. 

The sentencing phase will begin soon, at which the abolitionist crowd, regardless of the horrifying facts of this case, will be rooting for the defense side.  How anyone can root for this defendant at any point and in any form or fashion just mystifies me.

The CNN story reports that, "Tsarnaev stood with his head bowed and his hands clasped as the verdicts were read."  I congratulate counsel on a good job of coaching.  Tsarnaev's scribbled note inside the boat where he was captured gave the unscrubbed version of his degree of contrition, to wit, none.  Whether counsel will be able to persuade him to continue occasionally faking contrition is an open question.

I'll bet $100 here and now, however, that he will not take the stand.  Under cross examination, there's too much chance his hatred for infidels, and the United States generally, will come out, thus tanking his it-was-all-my-brother's-idea theory of "mitigation."
The WSJ discusses the prosecution of Sgt. Bowe Bergdahl, illustrating why the pardon I predict (at a politically convenient moment for the Commander-in-Chief) will be a betrayal of duty and honor by the President even more stunning than Bergdahl's embrace of Jihad:

[T]he bigger story [in the Bergdahl case] is the extravagant price the U.S. has paid because President Obama wanted to score political points.

Readers will recall that then-Private First Class Bergdahl went missing from his post in Paktika province in eastern Afghanistan in June 2009. Fellow soldiers suspected desertion, though the Army conducted a risky manhunt to recover him...

The Associated Press has reported that an internal Pentagon investigation in 2010 found "incontrovertible" evidence that he had walked away from his post. Journalists also uncovered an exchange of letters in which the soldier wrote to his father "the title of U.S. soldier is just the lie of fools," that he was "ashamed to even be american," and that "the future is too good to waste on lies." Replied father Robert: "OBEY YOUR CONSCIENCE!"

All of this would have been known to President Obama and National Security AdviserSusan Rice when the Administration decided to swap Sgt. Bergdahl for five Guantanamo Bay detainees--all top Taliban leaders--in May 2014. Mr. Obama even invited Sgt. Bergdahl's parents to a [chipper  --  ed. addition] Rose Garden ceremony to announce the swap, while Ms. Rice declared on a Sunday talk show that the soldier had served his country with "honor and distinction."

Serving with "Honor and Distinction"

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Those are the words the President's National Security Advisor, Susan Rice, used to characterize Sgt. Bowe Bergdahl.  It was politically necessary for Ms. Rice to praise Bergdahl in order to defend her boss from criticism that he had swapped five high value Taliban commanders for one traitor.

Today, Mr. Honor and Distinction was formally charged with desertion in battle and (in effect) cooperating with the enemy.

Confession #1:  I previously, and it now turns out wrongly, predicted that the Administration would just let the whole mess disappear into the fog, because it has no heart for prosecuting a "misguided youth."

Confession #2:  I also predicted, also wrongly, that if perchance the Administration allowed the Army's investigation to proceed at all, it would be cut short by a preemptive pardon, which I wrote here.

Prediction:  In light of my record of fumbling, I could scarcely blame readers for discounting my next prediction, but here it is anyway.  There won't be a Bergdahl pardon until roughly 21 months from now, after the 2016 election, and "in the spirit of Christmas."  Marc Rich, call your office.
My friend Prof. Greg Dolin of the University of Baltimore Law School writes, "When Barack Obama ran for President, he argued that terrorism should be primarily a law enforcement rather than a military issue. Now he apparently thinks that it's primarily a labor and human services and not a law enforcement issue."

The source of Greg's remark is the following story, which I post with only the observation that this Administration's delusional thinking about terrorism has gone past the point of parody.  

White House Press Secretary Josh Earnest said Friday that FBI Director James Comey was not invited to the White House Summit to Counter Violent Extremism, because they didn't want the perception that the conference "was overly focused on law enforcement tactics...."

"Certainly law enforcement is a very important role to play. That's why we had the nation's top law enforcement official in attendance," Earnest said.

"That's why we had police chiefs and other law enforcement officials from communities across the country in attendance, but the focus here is on the broader set of tools that are available to communities all across the country to protect vulnerable people who could be susceptible to violent extremist ideology that's propagated on social media," he added.

That's it, ladies and gentleman.  We plan to fight Jihadist decapitation with Facebook posts about how to moderate the inequities of capitalism.  If you gave me a thousand years, I could not come up with this stuff.

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