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Terrorists Win, Freedom Loses Part II

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Kyle Smith from the New York Post puts it aptly:

Freedom, you were a nice idea, but anonymous hackers with a strange fondness for North Korea don't like you. So I guess you'll have to go.

After a single random online threat from an anonymous source the Department of Homeland Security finds not particularly credible -- a source that, for all we know, could be a group of basement-dwelling pranksters trying to sound like North Koreans -- Sony pulled "The Interview."

If someone purporting to be from the KKK calls the Weinstein Co. to order it to pull "Django Unchained" from any further distribution, will Harvey say, "Of course. We wouldn't want to offend you nice people"? Can the American Nazi party stop Universal Pictures from airing "The Blues Brothers" on TV by issuing an especially forceful tweet?

As an arts and entertainment company, Sony Pictures has better reason than most to understand the importance of creative freedom, especially when that creation carries a political character. The same is true of the theater chains. Their chicken-hearted response to the threats is a warning to everyone who works in the arts that controversy is best avoided. 

Bill Kristol from the Weekly Standard also makes some excellent points.

Interrogation and the Law

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Former Attorney General Michael Mukasey has this op-ed in the WSJ:

Considering that the now-abolished Central Intelligence Agency interrogation program adopted in the wake of 9/11 was intended to protect the U.S. from another deadly attack, it is stunning to hear those now criticizing the program issue the solemn reminder that "we are a nation of laws"--while devoting little attention to what was actually in those laws. Odder still, among the critics those who wrote the laws seem to devote the least attention to them.

Take, for example, Sen. Dianne Feinstein, the prime mover behind last week's release of a more than 500-page " Executive Summary " of the report by Democrats on the Senate Select Committee on Intelligence. She attaches her own six-page foreword, beginning with the dutiful assurance on the first page that the "horror" of the television footage of the 9/11 attacks "will remain with me for the rest of my life." Thus credentialed, Sen. Feinstein proceeds to the task at hand: CIA personnel "decided to initiate a program" of "brutal interrogation techniques in violation of U.S. law, treaty obligations, and our values." Setting aside for a moment the reference to "our values," that statement is demonstrably false.
The statement is false, he goes on to demonstrate, because the enhanced interrogation techniques used were not torture as defined in the law.

Terror Around the Globe

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It's a grim day in the news today.  Here are several articles from the WSJ:

Qasim Nauman, Safdar Dawar, and Saeed Shah report on the horrifying story of the Taliban in Pakistan taking over a school and methodically shooting schoolchildren in the head, killing 141 people.  That anyone with any political or religious cause, however fanatical, could deliberately and specifically target children for mass murder staggers the imagination.

Rebecca Thurlow and Lucy Cramer report from Sydney on the rememberance of the deceased hostages Katrina Dawson and Tori Johnson.  Mr. Johnson, the cafe manager, grabbed the perpetrator's gun when he saw an opportunity, beginning the termination of the siege and the freeing of all but himself and Ms. Dawson.  There is also a report that "Ms. Dawson was shielding her pregnant friend from gunfire."

Sony Pictures has received threats of terrorist attacks on showings of its comedy film "The Interview," which paints an unflattering portrait of North Korea's leader (who does such a good job of self-parody, he really doesn't need any help from Sony).  Ben Fritz, Danny Yadron, and Erich Schwartzel have this story.  Although the threats are "viewed as far-fetched by U.S. officials," they can't be taken lightly given the Aurora massacre.

The Abbottabad Letters

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Here's an interesting development in the case of United States v. Khaled Al Fawwaz and Anas Al Liby in U.S. District Court in Manhattan. The court entered a scheduling order on motions regarding admissibility at trial of "documents recovered during the May 2, 2011 raid of Usama bin Laden's Abbottabad, Pakistan compound."  The text of the order follows the break.

I have the government's motion but not al Fawwaz's motion.  That is probably one of the many sealed documents not available to the public.  The government's motion says,

The Abbottabad Letters--including two authored by the defendant, himself--reflect his continued active participation in al Qaeda following eight years of incarceration in Iran. The Letters constitute powerful, direct, proof of al Qaeda's conspiracies to bomb and kill Americans, as well as Anas al Liby's knowing and intentional participation in them. Indeed, one can scarcely conceive of more powerful uncharged-acts proof than recent correspondence among bin Laden, his chief deputy, and the defendant about the defendant's continued participation in al Qaeda--including a 2010 letter from the defendant to bin Laden in which the defendant "ask[s] God to reunite me with you soon under the banner of Islam and the Islamic state and the banner of jihad." That is particularly true where, as here, the defendant's state of mind will be a central issue in dispute.
The legal argument relates to admissibility of "other acts" evidence under Federal Rule of Evidence 404(b).  The background paragraph begins with this statement:

On May 2, 2011, U.S. forces conducted an operation that resulted in the death of al Qaeda leader, and (formerly) charged co-defendant, Usama bin Laden.
I like that "(formerly)."  This is technically known in the trade as "mootness."
A:  Not a whole lot.

The country seems to have figured out that the adult answer to the moral questions about aggressive interrogation is that, when thousands of innocent lives are at risk from an enemy who has shown he regards snuffing them out as the pathway to heaven, you do what you need to.  As today's Washington Post reports:

A new poll from the Pew Research Center is the first to gauge reactions to last week's big CIA report on "enhanced interrogation techniques" -- what agency critics call torture.

And the reaction is pretty muted.

The poll shows people says 51-29 percent than the CIA's methods were justified and 56-28 percent that the information gleaned helped prevent terror attacks.

The WSJ has this response to the Senate Intelligence Committee report on interrogation, by former CIA Directors George J. Tenet, Porter J. Goss and Michael V. Hayden (a retired Air Force general), and former CIA Deputy Directors John E. McLaughlin, Albert M. Calland (a retired Navy vice admiral) and Stephen R. Kappes.

They dispute just about all the major conclusions.  They also have some telling comments on the way the report was prepared.

The Senate Intelligence Committee's report on Central Intelligence Agency detention and interrogation of terrorists, prepared only by the Democratic majority staff, is a missed opportunity to deliver a serious and balanced study of an important public policy question. The committee has given us instead a one-sided study marred by errors of fact and interpretation--essentially a poorly done and partisan attack on the agency that has done the most to protect America after the 9/11 attacks.
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How did the committee report get these things so wrong? Astonishingly, the staff avoided interviewing any of us who had been involved in establishing or running the program, the first time a supposedly comprehensive Senate Select Committee on Intelligence study has been carried out in this way.

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.

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