Recently in Terrorism Category

Boldly Tiptoeing on the Marathon Bomber

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Hillary Chabot has this column in the Boston Herald:

More pols are coming out in favor of U.S. Attorney General Eric Holder's decision to seek the death penalty against accused Boston Marathon bomber Dzhokhar Tsarnaev -- breaking with many of the Bay State's hand-wringing Democrats as Congress prepares to release an exhaustive report on the Boston Marathon bombings.

"He should get the death penalty if found guilty," former U.S. Sen. Scott Brown told the Herald yesterday. Brown joins Democratic U.S. Rep. Stephen Lynch and most of the voters in calling for Tsarnaev's life if he is convicted in the dual bloody bombings that killed three and injured hundreds, as well as the killing of a Massachusetts Institute of Technology police officer.

More on the Marathon Bomber

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Catherine Shoichet has this story for CNN on the decision to seek the death penalty for the Marathon Bomber.  Most interesting to me are the quotes from victims and their families:

For Liz Norden, it's one small step forward.

Her sons, JP and Paul, each lost a leg in the bombings, which killed three people and injured more than 250 at the April 15 race.

"I just am relieved that it's going forward in the right direction, one step forward in the recovery process, just that the option is out there on the table for the jurors, if that's the way it goes," she told CNN's The Situation Room.

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Attorney General Eric Hamlet Holder is apparently having a hard time deciding whether to seek the death penalty for the accused Boston Marathon bomber.  Pete Williams has this story for NBC.  He now says he will decide by the end of the month.  The answer, of course, is obvious:

"If you don't use it in this kind of case, where someone puts down bombs down in crowds, then in what kind of case do you use it?" asked Aitan Goelman, a former Justice Department lawyer who helped prosecute Oklahoma City bomber Timothy McVeigh.

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Michael Sullivan, a former U.S. Attorney in Boston, agrees. "A jury should have the opportunity to consider death. This is a horrific terrorist act that occurred on our soil."
For my entire blogging life, I've been angling for an excuse to say something, anything, about the Little Sisters of the Poor.  That's because, as a sports fan, I've spent years needling fans of opposing teams by snickering, "Sure you've got a winning record, but that's only because you play the Little Sisters of the Poor."

It seemed inconceivable that someone could actually target the Little Sisters of the Poor, but the Obama Administration remains full of surprises.  Teeth bared, it has taken the Sisters to court, and done so at exactly the time that it has released from prison the traitorous Lynne Stewart.  This is the Lynne Stewart who was convicted of abetting terrorism against the United States.

Ms. Stewart, a veteran criminal defense lawyer who initially sneered that she could serve her prison sentence "standing on my head," has recently been claiming that she has terminal cancer. I assume this is true, although one must wonder whether whether she has the same kind of "terminal cancer" suffered by Abdelbaset al-Megrahi, the bomber of Flight 103 over Lockerbie, Scotland (Abdelbaset al-Megrahi was likewise prematurely released, also ostensibly on "compassionate" grounds, but actually because of a crooked deal.  He lived the life of a celebrity/hero for three years after his release).

Having had, but miraculously survived, a cancer that is 96% terminal, I don't wish it on anyone, no matter how vile.  But the juxtaposition of the Administration's oozing compassion for Ms. Stewart (if compassion is what it is, which I doubt) with its snarling legal attack on the Little Sisters of the Poor, is just too much to pass without notice.  Paul Mirengoff has the story, from which the title of this post is taken.

Split of Authority on NSA Phone Program

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Jennifer Smith reports for the WSJ:

The National Security Agency's bulk collection of data from phone companies is legal, a federal judge has ruled, dismissing a significant court challenge to the practice and setting the stage for a bigger legal battle over secret surveillance programs.

U.S. District Judge WIlliam H. Pauley III in Manhattan sided with the government in his decision Friday, calling the collection program a "vital tool" to combat terrorism and deeming it "the Government's counter-punch."

The ruling stands in conflict with a decision issued earlier this month in a separate case by a federal judge in the District of Columbia who said the program "almost certainly" violated the Constitution.

Making the Simple Complicated

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Kevin Johnson has this story in USA Today, titled "Death penalty for Boston bomber a complicated question."  Huh?  What's complicated about it?

At the threshold, there are often complicated questions of federalism in a decision to prosecute a murder in federal court rather than state court.  Does federal jurisdiction extend to this case under the statute and within the limits of the Constitution?  If so, is this a case that should be prosecuted in federal court as a matter of policy?

The policy question was easy in this case.  This was an act of terrorism directed at the United States as a nation.  In any event, we are past the threshold jurisdiction issue, and that is not what the article claims is complicated.

Given that this is a federal case in which death is an available punishment, should the prosecution seek it?  Of course!  That is not complicated at all.  Death should be sought in cases at the upper end of the heinousness scale, and this case pegs the meter.  It was a terrible crime against a great many victims, and no substantial mitigation has come to light.  The mere possibility that the younger brother was influenced by the older is not remotely close to outweighing the extremely aggravated circumstances of the crime, and any claim of actual duress is conclusively refuted by the perpetrator's scrawling in the boat after his brother's death.

The ridiculously long time that federal courts are taking to resolve capital appeals is not a complication of the decision to seek the death penalty.  It is a failure of the Administration to put the priority on these cases that they deserve.  For the collateral reviews, Congress has mandated that "any motion under section 2255 by a person under sentence of death, shall be given priority by the district court and by the court of appeals over all noncapital matters."  See 28 U.S.C. ยง2266(a).  The courts are ignoring this law, and the Administration is not pressing them on it.

Let's Talk About Something Else

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Last spring, a Jihadist mass killer, Dzohhar Tsarnaev, and his older brother (now deceased after a gun battle with police) planted two bombs near the finish line of the Boston Marathon, killing three people, including an eight year-old boy, and wounding more than 260 others.  

To my knowledge, no sensate person doubts that Tsarnaev did the deed, did it intentionally out of hatred for the West and America in particular, and was of sound mind (at least to the extent anyone can be of sound mind and still decide to kill complete strangers).

So in a rational world, this should be an easy case, right?  We know we have the right guy, and we know he was sane.

However, we no longer live in a rational world, at least as respects capital cases (Eric Holder has not yet indicated he will seek the death penalty, although most informed people believe he will).

The killer's multiple lawyers, taking full advantage of our loss of rationality, want to change the focus of the case to talk about something else.  This is the latest:

Miranda for Terror Suspects?

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Kent and I have blogged a number of times about the Administration's missteps in dealing with captured terror suspects and, in particular, whether and at what point they should be advised of Miranda rights  --  advice that is likely to bring to a halt whatever cooperation they might have been giving.

The Administration seems to have gone through fits and starts on this question, seemingly never able to reconcile (1) its ill-advised determination to view terrorism as a matter for standard civilian trials and the accompanying rules of domestic criminal procedure, with (2) the unwelcome but central fact that terrorism is the front line in a war, and captives we take are less criminals violating our law than enemies aiming to replace it.

A week ago today, I had the privilege of talking through this question with a large and eclectic audience at a Federalist Society event at Columbia Law School in Manhattan.  The conversation was not recorded, by my opening remarks are set forth after the break.

Is Conspiracy a War Crime?

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Jess Bravin reports in the WSJ (subscription required):

The Obama administration on Monday pressed a federal appeals court to rule that the U.S. can prosecute foreigners before military commissions for conspiracy even though international law doesn't consider the offense a war crime.

Seeking a reversal of earlier court rulings that threw out convictions at the U.S. military base at Guantanamo Bay, Cuba, the government argued that under an "American common law of war" the military could try defendants for conspiracy.

The Real Heroes Are Dead

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Twelve years ago our country suffered the largest mass murder in its history.  In any sane discussion, that would have put an end to the view that there is never a case that warrants the death penalty.  Of course that hasn't happened because, among other things, a sane discussion is not all that often to be had with those who believe that America (or "Amerika") brought it upon itself, that cold-eyed killers are really victims, and all the rest of the swill that passes in academia, among numerous other places, as high-mindedness.

It's easy to despair of the degraded culture that is the Petri dish for this kind of thinking. And there's no use in denying that the culture we have now has slid a long, long way down the hill.  Cynicism, deceit and racial huckstering from the Attorney General himself are only a microscopic part of it, as bad as they are. 

But there is still room for hope.  The culture still produces heroes.  Not phony "heroes" of the kind we hear about all the time.  Real heroes.

Scott Johnson at Powerline tells the story of one of them today, the anniversary of his death. 

Correct Sentence for Hasan

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We've had several items on this blog lately about inadequate sentences.  Here is a refreshing change.  Billy Kenber reports in the WaPo:

Nidal Malik Hasan was sentenced to death Wednesday for killing 13 people and wounding 32 others in a 2009 shooting spree at Fort Hood, Tex., the worst mass murder at a military installation in U.S. history.

Dressed in Army fatigues, Hasan, who turns 43 next month, listened impassively as the death penalty was handed down by a panel of 13 senior military officers in a unanimous decision. If even a single panel member had objected, Hasan would instead have been sentenced to life in prison.

The jury deliberated for a little more than two hours.

Two hours strikes me as rather short for a penalty phase deliberation, but folks who do capital trial work and are more knowledgeable about that are invited to comment.

The New Normal: Flagrant Lying

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Kent posted here about what he correctly called a "bald-faced lie" in a Huffington Post entry attacking the death penalty.  Unfortunately, lying has become all the rage in current debates affecting criminal law and terrorism.  Victor Davis Hanson brings home the point in his NRO piece today, which notes, among many other things:

Attorney General Eric Holder -- who had already been held in contempt by he House of Representatives for declining to turn over internal Justice Department documents in the earlier Fast and Furious scandal -- swore to Congress that he had no knowledge of any effort to go after individual reporters. But according to an official Justice Department statement, Holder had in fact signed off on the search warrant to monitor the communications of Fox News reporter James Rosen. In other words, the attorney general of the United States under oath misled -- or lied to -- Congress.

Director of National Intelligence James Clapper was recently asked by Senator Ron Wyden (D., Ore.) whether the National Security Agency collected the phone and e-mail records of millions of ordinary Americans. Clapper said that it did not. That, too, was an untruth. Clapper's supporters argued that Wyden should not have asked in public a sensitive question that threatened the needed secrecy of the program. But Clapper did not demur or request a closed session. He instead found it easier to deceive, later dubbing his response the "least utruthful" answer possible.

I have explained, here and here, why Holder's testimony was untruthful, and won't repeat it.  Hanson is on the mark in going after Clapper as well, although it seems to my friend Paul Mirengoff, and to me, that Clapper was put in a nearly impossible position by a grossly irresponsible question from Sen. Wyden.

The End of Civilization

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I wish my title were hyperbolic or intended as humor.  It isn't.

I said in my CNN discussion with Prof. Alan Dershowitz that a blood-spewing terrorist attack on peaceable civilians in broad daylight is an assault on the fundamentals of civilized life.  A challenge of that sort calls for an unambiguous response, a response rooted in the moral confidence that our way of life is worth defending without apology, hesitation or remorse.  It is worth defending, that is to say, by seizing the terrorist and putting him to death.

This week, we saw in England what it looks like to hand civilization to barbarians.  A British soldier was attacked by Jihadists in a busy part of London in mid-day, half-beheaded and left for dead (which he was).  Although several British police were nearby, they did nothing, being unarmed.  The only people who even attempted to intervene were three women bystanders who, in a surreal exercise of bravery, engaged the killers in a conversation to keep them from being on their way to murder again.

But there has been a law enforcement response.  A few people writing on Twitter have been arrested for making offensive remarks about the attackers.  Can't be down on Islam, dontcha know!

John Hinderaker on Powerline gives a preview of our final descent.

The Case of the Classified Corpse

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The DC Circuit today issued a per curiam decision in Judicial Watch v. Department of Defense, No. 12-5137:

Judicial Watch filed a Freedom of Information Act request seeking disclosure by the Central Intelligence Agency of 52 post-mortem images of Osama bin Laden. The agency refused on the ground that the images were classified Top Secret. Judicial Watch sued, and the district court granted summary judgment for the agency. We affirm because the images were properly classified and hence are exempt from disclosure under the Act.

Mr. Nicey Has a Message for America

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It didn't take defense-oriented types long to come up with the theory that Dzhokhar Tsarnaev was merely the teenage tag-along to his charismatic older brother when he planted the Boston Marathon bomb.  He wasn't really a Muslim radical, you see, just a fun-loving, impressionable kid.

That was then.  Today comes news that Dzhokhar scrawled a note inside the boat where he hid out.  Here's the ABC News headline:  

"F*** America, Boston Marathon Suspect Wrote in Boat."

The story begins:

As police searched for him, and as he lay bleeding in his boat hideout, Boston Marathon bombing suspect Dzhokhar Tsarnaev wrote "F*** America" on the side panel of the boat, police in Massachusetts told ABC News.

Officers said they also discovered the phrase "Praise Allah" on the boat's side panels and several anti-American screeds, including references to Iraq, Afghanistan and "the infidels."

A story notes that Dzhokhar referred to the victims, including an eight-year old boy, as "collateral damage," echoing Timothy McVeigh's famous phrase.  

With any luck, Dzhokhar will be joining Timmy real soon.

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