Tuesday, February 16, 2010

Eric Holder, American Justice, and the Rule of Law

Let me start with a disclaimer: I personally know and like Eric Holder. He was my boss for three-and-a-half years in the 1990’s when I was an Assistant United States Attorney in Washington, D.C. Before that, he was a well-respected D.C. Superior Court Judge in whose courtroom I appeared on several occasions. He is extremely smart, funny, personable, and sincere. Anyone who has ever worked for him knows first-hand of his public-spirited desire to do what is right and just, consistent with the rule of law and the Constitution.

Holder is under attack by conservative politicians and media pundits for three principled, but controversial decisions. In August, he appointed a special counsel to review whether CIA operatives violated any laws in approving or implementing torture during interrogations of military detainees. In November, he ordered that Khalid Sheikh Mohammed (and four others) be tried in federal court, rather than before a military tribunal, for the terrorist attacks of September 11, 2001. And in December, he decided to charge criminally, rather than treat as an enemy combatant, Umar Farouk Abdulmutallab, the alleged “Christmas Day bomber,” who was apprehended after his failed attempt to detonate a bomb in a plane over Detroit.

Charles Krauthammer has declared Holder’s actions “almost criminal.” Senator Lamar Alexander called for Holder to “step down” for failing to distinguish between “terrorists who are flying into Detroit, blowing up planes, and American citizens who are committing a crime.” Rudy Giuliani, who like Holder is a former U.S. Attorney (and should therefore know better), has ridiculed Holder’s decisions to allow Mohammed a fair trial and Abdulmutallab an opportunity to consult with counsel. Dick Cheney has accused Holder of giving “aid and comfort to the enemy.” The list goes on.

It requires only a basic understanding of the facts and of U.S. and international law to realize that Holder’s decisions were correct and that the criticisms against him are nothing but shameful political grandstanding of the most dangerous kind. First, Holder’s decision to treat Abdulmutallab as a criminal suspect had the consent of the FBI, the CIA, and the Pentagon, and the government's handling of the case is consistent with every previous case involving a suspected terrorist apprehended inside the United States. Krauthammer’s fantasies notwithstanding, no law authorizes the U.S. military to seize criminal suspects inside this country and hold them without charge at a military detention camp. Every person arrested in the United States, citizen or non-citizen, whether here legally or illegally, and whether charged with shoplifting, murder, terrorism, or espionage, is entitled to the protections of the U.S. Constitution. It is what makes America a shining example of freedom and democracy to the world.

That the Bush Administration handled two terrorism cases (Jose Padilla and Ali Saleh ahlah al-Mari) differently than Holder handled the Abdulmutallab case, proves that Holder made the right call. Padilla and al-Mari had been arrested in the United States by law enforcement officials and criminally indicted. Both men were subsequently declared “enemy combatants” by President Bush and transferred into military custody, where they were detained without trial and held for long periods of interrogation. Following legal challenges, U.S. courts in both cases found that the government had exceeded its lawful authority. Bush subsequently relented and returned Padilla and al-Mari to federal court, where they were convicted and sentenced.

Ironically, no useful intelligence was gained from either Padilla or al-Mari while held in military detention. By contrast, Abdulmutallab immediately confessed and provided useful intelligence to FBI agents who questioned him for fifty minutes under the “public safety exception” to the right to remain silent. He is now cooperating extensively with the government in the course of his criminal case. That he was Mirandized and provided with counsel has not prevented him from further cooperating. In federal criminal cases, defendants routinely cooperate in the hope of obtaining a more lenient sentence. A carrot often carries more weight than a stick.

Holder’s decision to try Khalid Sheikh Mohammed in federal court on the 9/11 terrorism charges is no different than how U.S. administrations from Reagan onward have treated most such cases for nearly thirty years. The official policy of the Reagan administration, which contended with numerous terrorist acts in the 1980’s (e.g., the bombings of the Marine barracks in Beirut and of U.S. Embassies in Beirut and Kuwait; the bombing of Pan American Flight 103; the hijacking of Achille Lauro) was explained by L. Paul Bremer III, Reagan’s Ambassador-at-Large for Counter-Terrorism, during a speech before the Council of Foreign Relations in November 1987:

Another important measure . . . in our overall strategy is applying the rule of law to terrorists. Terrorists are criminals. They commit criminal actions like murder, kidnapping, and arson, and countries have laws to punish criminals. So a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are -- criminals -- and to use democracy’s most potent tool, the rule of law against them.
The Reagan administration got it right. All of these miscreants – Mohammed, Abdulmutallab, Zacarias Moussaoui, Richard Reid (the “shoe bomber”) – are nothing but common criminals. They deserve to be treated like any other criminal (albeit with added security measures and certain case-specific protective orders). They deserve a fair trial and, once the evidence proves them guilty, to be imprisoned or sentenced to death. Elevating them to a special status adds only to their mystique and gives them the status of hero and martyr among their fellow jihadists.

Circumventing the rule of law, or treating suspected terrorists as “enemy combatants,” holding them without charge, denying them a trial, or not allowing them to consult with counsel serves only to undermine the Constitution and the very foundations upon which our democracy rests. In 2006, the U.S. Supreme Court ruled in Hamden v. Rumsfeld that the Bush administration’s makeshift military commissions were illegal. These specially created tribunals permitted military judges to exclude detainees and their civilian counsel from major portions of their trials, and to prohibit them from ever learning of the evidence against them during those portions. The rules also allowed military prosecutors essentially to offer any evidence in support of the charges, including hearsay, unsworn statements, and coerced confessions. In a decision by Justice Stevens, the Supreme Court held that the commissions violated the American common law of war, the Uniform Code of Military Justice, the “rules and precepts of the law of nations,” and the Geneva Conventions. By so deviating from past practices, and by not trusting our system of laws and justice, President Bush greatly damaged our credibility and standing in the world.

The federal court system is simply better equipped, in most cases, to handle these trials. It has been the venue for international terrorism cases since President Reagan authorized them in the 1980’s, and for other terrorist cases long before that. Federal prosecutors have at their disposal a wide array of criminal statutes, all with very clear sentencing guidelines, which can reach not just the terrorists themselves, but anyone who provides material support for, or who aids and abets, the terrorists. According to a study by NYU Law School, since 2001 U.S. criminal courts have convicted over 150 suspects on terrorism charges, while Bush’s military commissions have convicted just three, two of whom were since released and returned to their native countries while Bush was still president. Ali Hamza al-Bahlul, a former al-Qaeda propaganda chief, received a life sentence after he boycotted his military commission trial. The other two, Salim Hamdan, Osama bin-Laden’s former driver and confidante, and David Hicks, an Australian who joined al-Qaeda, served sentences of six months and nine months, respectively (over the time already served in custody), before being returned to their native countries. (For a terrific article on these matters, see Jane Mayer’s recent piece in The New Yorker.)

Two cases in particular show the distinctions between the federal criminal system of justice and that of military commissions – John Walker Lindh and Yaser Hamdi. Lindh, known as the American Taliban, and Hamdi, a Saudi-American, were both captured in Afghanistan in 2001. Lindh was charged criminally and pleaded guilty in federal court. He is now serving twenty years in prison. Hamdi was declared an enemy combatant and was held in military detention without charge. After a court challenge, in 2004 he was released, and he is now living in Saudi Arabia.

Holder has been the subject of right-wing attacks ever since he authorized a special counsel to review cases of torture committed by CIA operatives to determine if any U.S. laws were violated. Yet it was Ronald Reagan who signed the Convention Against Torture in 1988, which not only declared that there exists "no exceptional circumstances whatsoever" justifying torture, but also required all signatory countries to "ensure that all acts of torture are offenses under its criminal law." Reagan wanted each signatory country "either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution." As Glenn Greenwald of Salon.com explains, the policies of Ronald Reagan no longer pass muster with today's conservative critics:

The express policies of the right-wing Ronald Reagan -- "applying the rule of law to terrorists"; delegitimizing Terrorists by treating them as "criminals"; and compelling the criminal prosecution of those who authorize torture -- are now considered on the Leftist fringe. Merely advocating what Reagan explicitly adopted as his policy -- "to use democracy’s most potent tool, the rule of law against" Terrorists -- is now the exclusive province of civil liberties extremists. In those rare cases when Obama does what Reagan's policy demanded in all instances and what even Bush did at times -- namely, trials and due process for accused Terrorists -- he is attacked as being "Soft on Terror" by Democrats and Republicans alike. And the mere notion that we should prosecute torturers (as Reagan bound the U.S. to do) -- or even hold them accountable in ways short of criminal proceedings -- is now the hallmark of a Far Leftist Purist. That's how far we've fallen, how extremist our political consensus has become.

Holder is hardly an ACLU activist. To the disappointment of many civil libertarians, Holder has not ruled out the use of military commissions (which have been reformed with added procedural and evidentiary protections). Indeed, the same day Holder announced that Mohammed and four others were to be tried in federal court for the 9/11 attacks, he also announced that five detainees would be tried before a military commission for the U.S.S. Cole bombings off the coast of Yemen in 2000. Holder deemed it important that “we be able to use every forum possible to hold terrorists accountable for their actions.” He explained that whether to proceed in federal court or before a military commission in a particular case is to be determined based on protocols established by the Departments of Justice and Defense, which look at “the nature of the offense, the location in which the offense occurred, the identity of the victims, and the manner in which the case was investigated.”

Holder has appropriately balanced the Constitution, the rule of law, and our nation’s security. He recognizes that not every case fits within the four corners of the traditional federal criminal case, but he properly insists that we proceed in every case with a fair, just, and effective mechanism for charging and trying all who wind up in U.S. custody. As Ali Soufan, a former FBI special agent who specialized in terrorism cases, said recently in the New York Times:

Military commissions do serve an important purpose. We are at war, and for Qaeda terrorists caught on the battlefield who did not commit crimes inside the United States, or who killed American civilians abroad, military commissions are appropriate. But for terrorists like Khalid Shaikh Mohammed, who plotted to murder the innocent on United States soil, federal courts are not only more suitable, they’re our best chance at getting the strongest conviction possible.

Critics suggest that trying suspected terrorists in federal court will provide an “intelligence bonanza” to al-Qaeda, because criminal trials require that the government disclose its evidence to the defense and present it in open court. This concern is unfounded. The Classified Information Procedures Act, passed by Congress in 1980, allows the government, with the court’s consent, to withhold classified information, produce summaries or redacted versions, and disclose such information only to defense lawyers with high-level security clearances. Prosecutors routinely invoke this law during terrorism and espionage trials.

Critics also contend that, particularly in Mohammed’s case, a trial will allow terrorism defendants the ability to stand on a soapbox and spread jihadist propaganda. This concern is misplaced. First, federal courts do not permit photography, live broadcasts, or video recordings, so the circus-like atmosphere of an O.J. Simpson trial simply does not occur in federal court. Second, like military judges, federal judges have the authority to gag or remove defendants who attempt to disrupt the trial. Third, and most importantly, a public trial allows the world to see American justice at its best, to the great detriment of the terrorists. As Steven Simon of the Council of Foreign Relations put it in a November 2009 op-ed in the New York Times:

…Instead of Khalid Shaikh Mohammed making his case, we will see the full measure of the horror of 9/11 outlined to the world in a way that only methodical trials can accomplish. Historically, the public exposure of state-sponsored mass murder or terrorism through a transparent judicial process has strengthened the forces of good and undercut the extremists. The Nuremberg trials were a classic case. And nothing more effectively alerted the world to the danger of genocide than Israel’s prosecution in 1961 of Adolf Eichmann, the bureaucrat who engineered the Holocaust.
By contrast, indefinite incarceration without trial, or a military proceeding closed to the public followed by an execution, will only inspire militant jihadists. Transparency, fairness, due process, and the ideals of our Constitution are what strengthens America’s reputation and weakens the influence of radical Muslim clerics and others in the jihadist base.

The purpose of a criminal trial is not to suppress a political message, but to put forth a better message – that we believe in our judicial system, our Constitution, and the force of our laws. A federal trial for Mohammed and other suspected terrorists speaks volumes to what we stand for as Americans: justice, fairness, due process, and commitment to the rule of law. A system that permits secret trials, or no trials, or abridged trials that permit unreliable evidence and that has none of the basic procedural protections of American jurisprudence, is not a system worth defending.

It is notable that other countries victimized by major terrorist attacks over the last several years, including Britain, Spain, India, and Indonesia, have successfully tried and convicted the perpetrators of those terrorist acts in their civilian court systems, in the very cities in which the terror attacks occurred. These countries saw no need to invent special military commissions to short-circuit due process or to hold accused terrorists without trial. They acted in the spirit of the Reagan administration’s policies, to “use democracy’s most potent tool, the rule of law against them.” Why should the United States act differently?

It is disheartening to see so many people willing to throw away the Constitution’s basic rights. If Mohammed and his cohorts are guilty, as were Moussaoui and Reid and the 150 other terrorists we have convicted in federal court, then let us demonstrate it in a trial the world can judge as fair and just. Detaining people without charging them, without allowing them reasonably to defend themselves, and without giving them a fair trial – no matter the nature of the alleged crimes – is not the American way, is not justice, and is not a legal system worthy of this great nation.

19 comments:

  1. Mark,

    I don’t know how wide your circle was to begin with, but full you have come, arriving just in time to jump in your jammies, have a glass of warm milk, listen to a bedtime story (not Grimms' Fairy Tales though!) and get a full night’s sleep before 8:46 a.m. rolls around on September 11, 2001. I would love to join you; life was certainly easier when Americans were slaughtered off-stage, bleeding anywhere but on our doorstep, and in “manageable numbers,” but I am unable to unlearn the existence of evil or to reject the truth so succinctly put by Orwell or Churchill (or my Aunt Edna for all anybody knows) that "We sleep soundly in our beds because rough men stand ready in the night to visit violence on those who would do us harm."

    But give credit where credit is due; if there is a Liberal Hall of Fame, and that would be as good a use of stimulus money as any other make-work project, I would second your nomination as a founding member.

    I was wrong earlier when I said the concept of property rights was the most important thing you could get wrong. Like “Terminator 2” or “Aliens,” this sequel of yours beats in spades the original. So prepare yourself - this is going to be long, and quite frankly, I don’t care if it’s ten times as long, because when you say the earth is flat there is no rebuttal, short of “no it isn’t,” that can possibly be as brief.

    HOLDER IS UNDER ATTACK BY CONSERVATIVE POLITICIANS AND MEDIA PUNDITS FOR THREE PRINCIPLED, BUT CONTROVERSIAL DECISIONS.

    Interesting word choice: principled. The beauty of principles is that they are never changing; unfortunately the same cannot be said of Eric Holder, who is an odd choice for Attorney General in a time of war, given that his greatest accomplishment in terrorist related matters was in setting some of them free. We’ll call this Holder 1.0. In 1999, President Clinton wanted to pardon 16 Puerto Rican terrorists at exactly the same time his wife was courting Puerto Rican voters in her run for the Senate. The Clintons and Holder 1.0 were the only ones who thought freeing terrorists was a good idea: the FBI disapproved; the Justice Department’s two pardon attorneys disapproved; Congress disapproved (Holder 1.0 refused to explain his actions to Congress, which later passed resolutions condemning the pardons); Joe Connor, orphaned son of bombing victim Frank Connor, disapproved; hell, even some of the terrorists themselves disapproved! But Holder 1.0 asked the pardon attorney to draft another report favoring clemency and when this attorney took a principled stand and said no, he was still pressured to prepare a “neutral” report. Holder 1.0 even instructed the lawyer to seek statements of repentance from the terrorists (this was after Clinton had already decided on the pardons!). It was pointed out that the pardons or clemency would undermine current prosecutions and investigations, and hamper the capture of co-conspirators and the recovering of millions in stolen bank money. Nevertheless, Clinton granted clemency to 11 terrorists, who were not even required to provide information regarding the money or the fugitives before the prison doors swung open.

    Ironically the most principled behavior was demonstrated by two of the terrorists who refused to renounce violence and so stayed in jail.

    Maybe Holder 2.0 learned something from this experience, as we will shortly see.

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  2. IN AUGUST, HE APPOINTED A SPECIAL COUNSEL TO REVIEW WHETHER CIA OPERATIVES VIOLATED ANY LAWS IN APPROVING OR IMPLEMENTING TORTURE DURING INTERROGATIONS OF MILITARY DETAINEES.

    First, no CIA “operatives” approved any enhanced interrogation techniques; gutsy lawyers did that – God bless them – and no terrorists were tortured, a fact the Obama Administration knows, but more on this later. Our CIA agents are not torturers but heroes who have kept my head, your head and AG Holder’s head safely attached to our shoulders for going on nine years. To paraphrase from the only good scene in a truly horrible movie, the existence of our interrogators, while grotesque and incomprehensible to you, saves lives. Your time would be better spent baking brownies and taking them to Langley to share with these agents. And if by chance they are there, instead of doing their job because they fear being charged as common criminals, you could take the opportunity to kiss their asses. And while you’re down there, give each ass a kiss from me too.

    Now regarding principles, here is a “teachable moment”: In the Mayer article you reference in your post, she writes, “. . . Holder’s Justice Department has continued blocking lawsuits by people who were subjected to extraordinary rendition—the practice of sending suspected terrorists captured abroad to countries known for administering torture—on the ground that such litigation would expose state secrets.” Holder, as the top cop, seeks justice for those terrorists “tortured” by our CIA by initiating investigations against the agents, while denying justice to those who actually might have a valid claim of torture. His excuse is that state secrets could be compromised, yet he has no problem releasing memos that expose our interrogation and investigative techniques and wants to try terrorists in civilian courts with liberal discovery rules.

    CHARLES KRAUTHAMMER HAS DECLARED HOLDER’S ACTIONS “ALMOST CRIMINAL.” SENATOR LAMAR ALEXANDER CALLED FOR HOLDER TO STEP DOWN. . . RUDY GIULIANI . . . HAS RIDICULED HOLDER’S DECISIONS TO ALLOW MOHAMMED A FAIR TRIAL AND ABDULMUTALLAB AN OPPORTUNITY TO CONSULT WITH COUNSEL. DICK CHENEY HAS ACCUSED HOLDER OF GIVING “AID AND COMFORT TO THE ENEMY.” THE LIST GOES ON.

    That on-going list includes recovering Democrat Joseph Lieberman, who declared that Abdulmutallab was “an enemy combatant and should be detained, interrogated, and ultimately charged as such,” and Democrats Jim Webb and Blanche Lincoln, who joined in a heartwarming moment of bipartisanship with moderate Republican Lindsey Graham to introduce a bill that would block funding for the prosecution of terrorists in civilian courts. Webb, a Democrat, stated that he, the Democrat from Virginia, has always preferred terrorists to be tried in a military setting.

    Joining them retroactively was Holder 2.0 who stated in 2002, “One of the things we clearly want to do with these prisoners is to have an ability to interrogate them and find out what their future plans might be, where other cells are located; under the Geneva Convention that you are really limited in the amount of information that you can elicit from people. It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war. If, for instance, Mohamed Atta had survived the attack on the World Trade Center, would we now be calling him a prisoner of war? I think not. Should Zacarias Moussaoui be called a prisoner of war? Again, I think not.”

    (And if you don’t mind me taking just a moment to say a little prayer for the speedy recovery of one of our greatest patriots, VICE PRESIDENT Dick Cheney. To paraphrase once more from that crappy movie, “And you should address the man as Vice President, I’m quite certain he’s earned it.”)

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  3. KRAUTHAMMER’S FANTASIES NOTWITHSTANDING, NO LAW AUTHORIZES THE U.S. MILITARY TO SEIZE CRIMINAL SUSPECTS INSIDE THIS COUNTRY AND HOLD THEM WITHOUT CHARGE AT A MILITARY DETENTION CAMP.

    “The laws of war are the rule of law. They are not a suspension of the Constitution. They are the Constitution operating in wartime. The Framers understood that there would be wars against enemies of the United States - it is stated explicitly in the Constitution's treason clause.” Who said that? Hopefully the Attorney General in three years, but we’ll get back to him in a moment.

    EVERY PERSON ARRESTED IN THE UNITED STATES, CITIZEN OR NON-CITIZEN, WHETHER HERE LEGALLY OR ILLEGALLY, AND WHETHER CHARGED WITH SHOPLIFTING, MURDER, TERRORISM, OR ESPIONAGE, IS ENTITLED TO THE PROTECTIONS OF THE U.S. CONSTITUTION.

    THE UNITED STATES CONSTITUTION: Article I, Section 9, Clause 2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

    You have reduced the War on Terror to a game of checkers! If they are on that side of the board, kill or capture and interrogate our enemies under rules of warfare, but if they make it to our side, well then we have to listen to them crow, “King me!”

    And riddle me this Batman: Osama bin Laden manages to stop laughing at us long enough to plan an even bigger massacre than 9-11, but decides that watching on a satellite TV from his cave while eating warmed over Ramen noodles isn’t good enough anymore. He manages to get “feet dry” on U.S. soil, magically transforming himself from terrorist to common criminal, and announces to a traffic cop that he is here to watch his masterpiece unfold after which he will explain to America why he did it from the luxury of a leather witness chair. OBL then lawyers up, possibly having already retained Holder’s law firm, Covington & Burling (from their Yellow Pages ad: Providing thousands of hours of pro bono representation to enemy combatants since 2001. Testimonial of a satisfied customer: “Thanks to Covington I was released in 2005 and just three years later was blowing myself up in Iraq, killing 13 infidels! By the way, shouldn’t there be virgins? I don’t see them, possibly I’m in the wrong room?” Yemeni Gitmo detainee.) and says take me to one of your warm jail cells. Whatcha gonna do?

    Holder 3.0 was equally flummoxed when Senator Graham asked him a simple question: “If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?” Holder 3.0 responded, “Again, I’m not, that’s all, that all depends…”

    Now I’m not a lawyer, never went to law school or took the bar exam, never much cared for “Private Practice” or “Boston Legal” (except when Denny Crane was shooting bad guys), but a phrase popped into my head as I read your sentence; something about the Constitution not being a suicide pact. And then two presidents came to mind: the Great Emancipator and the Great Depressionator.

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  4. “. . .President Abraham Lincoln ordered the suspension of the constitutionally protected right to writs of habeas corpus in 1861, shortly after the start of the American Civil War. . . In response to the arrest of Maryland secessionist John Merryman by Union troops, then Chief Justice of the Supreme Court Roger B. Taney defied Lincoln 's order and issued a writ of habeas corpus demanding that the U.S. Military bring Merryman before the Supreme Court. When Lincoln and the military refused to honor the writ, Chief Justice Taney in Ex-parte MERRYMAN declared Lincoln's suspension of habeas corpus unconstitutional. Lincoln and the military ignored Taney's ruling.”

    Between June 13 and June 17, 1942, teams of Germans came ashore on the beaches of Long Island, New York, and Jacksonville, Florida for the purpose of engaging in a two year long sabotage mission, bringing the war to the U.S., the terror of war to her citizens and to “diminish the resolve of the United States to overcome (her) enemies.” By June 27th the saboteurs had been rounded up. They were tried by military commission for one month ending August 4th, found guilty and on August 8, 1942, six of the eight were executed. One of the executed men was an American citizen. “So shaken was the German intelligence service that no similar sabotage attempt was ever again made.”

    IT IS WHAT MAKES AMERICA A SHINING EXAMPLE OF FREEDOM AND DEMOCRACY TO THE WORLD.

    To our enemies it confirms OBL’s original assessment, as he watched our brave military forced to tuck their tails between their legs and run away from Somalia after the Battle of Mogadishu: The United States is a paper tiger. And you might have noticed that we are not in short supply of immigrants who think we are, indeed, a shining example of freedom and democracy.

    BY CONTRAST, ABDULMUTALLAB IMMEDIATELY CONFESSED AND PROVIDED USEFUL INTELLIGENCE TO FBI AGENTS WHO QUESTIONED HIM FOR FIFTY MINUTES UNDER THE “PUBLIC SAFETY EXCEPTION” TO THE RIGHT TO REMAIN SILENT.

    A whole fifty minutes? Why not fifty days of interrogation followed by a trial of Holder’s choice? Considering that when terrorists last used American planes on American soil there were 19 of them, it should have been the post 9-11 mindset that we were again under a brilliant and multi-stage attack. Fifty freakin’ minutes! Time to take the jammies off and pour yourself some coffee. The pink panty bomber should have been turned over to military interrogators immediately, instead of the duty FBI agent, whose last interview was with a dumb ass bank robber or a two-bit drug dealer.

    HE IS NOW COOPERATING EXTENSIVELY WITH THE GOVERNMENT IN THE COURSE OF HIS CRIMINAL CASE. THAT HE WAS MIRANDIZED AND PROVIDED WITH COUNSEL HAS NOT PREVENTED HIM FROM FURTHER COOPERATING.

    Extensively? He will cooperate to the exact extent he and his lawyer think is necessary to get a break from the sentencing judge. Not one admission more. And you know that.

    IN FEDERAL CRIMINAL CASES, DEFENDANTS ROUTINELY COOPERATE IN THE HOPE OF OBTAINING A MORE LENIENT SENTENCE. A CARROT OFTEN CARRIES MORE WEIGHT THAN A STICK.

    In a criminal case, the goal is to gather evidence of past wrongs to arrest more people, for which you have the luxury of time. Possibly, if cooperation comes fast enough, you might intercept a drug shipment or foil a bank robbery, but if not, no big deal, an indictment can still be secured charging them with the load that got away or the bank robbery that occurred three years ago. And you know that.

    In terrorist cases, the stakes are a tad higher. Sure you can indict bad guys for the bomb that wasn’t prevented from going off killing hundreds, but that’s a sorry consolation prize. And you know that.

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  5. Carrots are important, we all know that, but a criminal’s carrot is different from a terrorist’s carrot. The pink panty bomber knows that regardless of his cooperation he is going to jail for a very long time and there is no amount of cooperation that will result in immediate freedom. He therefore has no incentive to tell us everything he knows. However, if we still viewed those who try to slaughter us as our enemies and placed them in secure facilities where professional interrogators and professional interviewers can do their jobs, the carrots become much more attractive. As Marc Thiessen states in “Courting Disaster” (see below), “…the terrorists in the program understood two things: ‘a) this was not going to stop, ever, unless they cooperated; b) if they did cooperate, things would get better, their quality of life would improve, and that they’d get better food, better treatment . . .there were a lot of carrots that were used in the program.’”

    So we agree on the benefits of carrots.

    HOLDER’S DECISION TO TRY KHALID SHEIKH MOHAMMED IN FEDERAL COURT ON THE 9/11 TERRORISM CHARGES IS NO DIFFERENT THAN HOW U.S. ADMINISTRATIONS FROM REAGAN ONWARD HAVE TREATED MOST SUCH CASES FOR NEARLY THIRTY YEARS. *** “ANOTHER IMPORTANT MEASURE . . . IS APPLYING THE RULE OF LAW TO TERRORISTS. TERRORISTS ARE CRIMINALS . . . SO A MAJOR ELEMENT OF OUR STRATEGY HAS BEEN TO DELEGITIMIZE TERRORISTS, TO GET SOCIETY TO SEE THEM FOR WHAT THEY ARE -- CRIMINALS -- AND TO USE DEMOCRACY’S MOST POTENT TOOL, THE RULE OF LAW AGAINST THEM.” *** THIRD, AND MOST IMPORTANTLY, A PUBLIC TRIAL ALLOWS THE WORLD TO SEE AMERICAN JUSTICE AT ITS BEST, TO THE GREAT DETRIMENT OF THE TERRORISTS. *** “…INSTEAD OF KHALID SHAIKH MOHAMMED MAKING HIS CASE, WE WILL SEE THE FULL MEASURE OF THE HORROR OF 9/11 OUTLINED TO THE WORLD IN A WAY THAT ONLY METHODICAL TRIALS CAN ACCOMPLISH. HISTORICALLY, THE PUBLIC EXPOSURE OF STATE-SPONSORED MASS MURDER OR TERRORISM THROUGH A TRANSPARENT JUDICIAL PROCESS HAS STRENGTHENED THE FORCES OF GOOD AND UNDERCUT THE EXTREMISTS . . . BY CONTRAST, INDEFINITE INCARCERATION WITHOUT TRIAL, OR A MILITARY PROCEEDING CLOSED TO THE PUBLIC FOLLOWED BY AN EXECUTION, WILL ONLY INSPIRE MILITANT JIHADISTS.” TRANSPARENCY, FAIRNESS, DUE PROCESS, AND THE IDEALS OF OUR CONSTITUTION ARE WHAT STRENGTHENS AMERICA’S REPUTATION AND WEAKENS THE INFLUENCE OF RADICAL MUSLIM CLERICS AND OTHERS IN THE JIHADIST BASE.

    You started to hop around here, so I took the liberty of consolidating some of the related thoughts that seem to conclude that past terrorist trials in civilian court are a justification for continuing the same failed policy, while at the same time claiming that by continuing to treat terrorists as criminals we will somehow defeat the terrorists!

    Um. .. Help me with my timeline here: In 1993 terrorists attempted to bring down the World Trade Center. In 1995 and 1996 terrorist Omar Abdel-Rahman and Ramzi Yousef were convicted in federal court. Shining example to the world, terrorists undercut, forces of good strengthened, jihadists dejected. Sounds inspiring, but I can’t help but think that we’re missing something… Now we invaded Afghanistan for something… Oil? No, that was Iraq. Oh! The freakin’ hole in New York!

    Despite how fair we were with the terrorists, they still held a grudge and when the towers finally fell, millions of terrorists and terrorist-sympathizers cheered.

    In May 2006, terrorist Zacarias Moussaoui was convicted in federal court. A few months later, a major terrorist plot to blow up U.S. planes over the Atlantic was disrupted by the British. What do we have to do to make them like us?

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  6. Better question: What is so difficult about the concept of evil that Liberals just can’t seem to get their heads around? Guantanamo is a great facility (so much so that some detainees are asking to stay instead of being shipped to U.S. prisons) but because terrorists lie, as their training manual tells them to do, and because the New York Times reports their lies, Guantanamo suddenly “inspires” more terrorists. When will the Left understand: terrorists are inspired because we are. Not by what we do or don’t do. And terrorists, those child killing, head chopping, honor killing, women mutilating, fanatics, who make American serial killers look like Andy Taylor, will never like us and they respect only one thing: strength. And not Mahatma Gandhi, "There are many causes that I am prepared to die for but no causes that I am prepared to kill for"-type of strength, but George Patton, “We're not going to just shoot the sons-of-bitches, we're going to rip out their living Goddamned guts and use them to grease the treads of our tanks”-type of strength.

    ALL OF THESE MISCREANTS – MOHAMMED, ABDULMUTALLAB, ZACARIAS MOUSSAOUI, RICHARD REID (THE “SHOE BOMBER”) – ARE NOTHING BUT COMMON CRIMINALS.

    They are nothing of the sort. These men have embraced evil as a calling and pursue it as an art form. Common criminals want to escape blame; these men want credit. Common criminals want anonymity; these men want fame. Common criminals have excuses for their conduct; these men have religious justifications.

    As President Bush stated in 2006, “These aren't common criminals, or bystanders accidentally swept up on the battlefield… They are in our custody so they cannot murder our people. One detainee held at Guantanamo told a questioner questioning him -- he said this: ‘I'll never forget your face. I will kill you, your brothers, your mother, and sisters.’”

    (For your scorecard, the questioners or interrogators are the good guys; and we are hanging them out to dry.)

    Common criminals do not threaten to kill families; even the mafia doesn’t do that. Terrorists not only threaten it; they long for it. Khalid Sheikh Mohammed, your common criminal, personally sawed off the head of Daniel Pearl. Your post proves one thing beyond doubt: you have never watched a terrorist video of a beheading. No one who has would write this. I’m not suggesting you watch one, because you will never forget it and I wish I had not, but nothing would dispel these naive thoughts quicker.

    It is precisely because President Bush recognized that our enemies are not common criminals that we have been spared another September 11th.

    THEY DESERVE A FAIR TRIAL AND, ONCE THE EVIDENCE PROVES THEM GUILTY, TO BE IMPRISONED OR SENTENCED TO DEATH.

    Whoa! Déjà vu all over again: “I don’t think it will be offensive at all when he’s convicted and when the death penalty is applied to him.” Now, as a prosecutor, you know evidence of guilt does not guarantee conviction and any defense attorney worth his salt will be using President Obama’s quote and other similar comments to great theatrical and possibly legal effect.

    IN 2006, THE U.S. SUPREME COURT RULED IN HAMDEN V. RUMSFELD THAT THE BUSH ADMINISTRATION’S MAKESHIFT MILITARY COMMISSIONS WERE ILLEGAL. THESE SPECIALLY CREATED TRIBUNALS PERMITTED MILITARY JUDGES TO EXCLUDE DETAINEES AND THEIR CIVILIAN COUNSEL FROM MAJOR PORTIONS OF THEIR TRIALS, AND TO PROHIBIT THEM FROM EVER LEARNING OF THE EVIDENCE AGAINST THEM DURING THOSE PORTIONS. THE RULES ALSO ALLOWED MILITARY PROSECUTORS ESSENTIALLY TO OFFER ANY EVIDENCE IN SUPPORT OF THE CHARGES, INCLUDING HEARSAY, UNSWORN STATEMENTS, AND COERCED CONFESSIONS. IN A DECISION BY JUSTICE STEVENS, THE SUPREME COURT HELD THAT THE COMMISSIONS VIOLATED THE AMERICAN COMMON LAW OF WAR, THE UNIFORM CODE OF MILITARY JUSTICE, THE “RULES AND PRECEPTS OF THE LAW OF NATIONS,” AND THE GENEVA CONVENTIONS.

    (continued…)

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  7. Oh boy. The Supreme Court did not find military commissions illegal because of the common sense rules you cite, but because Congress had not authorized them. As Justice Breyer wrote: “...Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary. ...” The decision was 5 to 3 because Judge Roberts, acting on principle, recused himself from the case because of his prior involvement in a lower court, leaving three sane judges, Scalia, Thomas and Alito. Alito was so perplexed by the majority’s decision that he began his dissenting opinion, “The holding of the Court, as I understand it, rests on the following reasoning.”

    Nevertheless, President Bush sought Congress’ approval for military commissions and Congress passed the Military Commissions Act. Bush followed the rules only to have the Supremes change the rules in Boumediene v. Bush. A flabbergasted Justice Scalia, in a brilliant dissent, summarized the court’s decision this way: “Turns out they were just kidding.”
    Justice Scalia also wrote, “Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war. . . My problem with today’s opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires (yes, I had to look it up).”

    Scalia also vividly exposed the Supreme Court’s hubris in assuming responsibilities not in their job description:

    “Congress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting. . . But it does not matter. The Court today decrees that no good reason to accept the judgment of the other two branches is ‘apparent.’ ‘The Government,’ it declares, ‘presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.’ What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.”

    Scalia ended as brilliantly as he began: “And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today. I dissent.”

    (continued…)

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  8. It must suck to be Justice Scalia, having to talk so slowly to most of the other Supreme Court justices. Can’t you just picture Justice Ginsburg, her head tilted to one side, mouth open, eyes wide, with that perfect “Wha..?” expression on her face? Even if you disagree with Scalia, a man who graduated magna cum laude from Harvard Law School, who was a professor of law, who argued and won in front of the Supreme Court, and who spent 25 years studying the U.S. Constitution as a Supreme Court Justice, should you not take seriously his concerns when he describes the court’s decision as having “disastrous consequences”?

    In fairness, though, the Hamdan decision is not without some common sense, and ends with possibly the answers to all our problems:

    “We have assumed, as we must, that the allegations made in the Government’s charge against Hamdan are true. We have assumed . . . that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”

    Had Hamdan been caught at the beginning of the War on Terror and held for the duration, he would be in his 31st year of captivity. It is likely that the war we have waged, at various levels of enthusiasm, since 1979 will continue for many years. When Republicans retake the White House and resume the war, perhaps they will remember this great advice.

    BY SO DEVIATING FROM PAST PRACTICES, AND BY NOT TRUSTING OUR SYSTEM OF LAWS AND JUSTICE, PRESIDENT BUSH GREATLY DAMAGED OUR CREDIBILITY AND STANDING IN THE WORLD.

    How many times do I have to ask, how exactly are you measuring, quantifying, or judging damage to our credibility? By what standard? Through what country’s eyes? Is there a Doomsday-like or National Debt-like clock out there measuring our standing?

    Andrew McCarthy, who we will discuss more fully in a moment, has the proper response to this drivel: “The answer is: So what? The people making these claims (the Left) don't speak for Americans - they speak at Americans, in ever shrinking amounts. If you're going to cower from a fight with them, we don't need you.”

    HOLDER HAS BEEN THE SUBJECT OF RIGHT-WING ATTACKS EVER SINCE HE AUTHORIZED A SPECIAL COUNSEL TO REVIEW CASES OF TORTURE COMMITTED BY CIA OPERATIVES TO DETERMINE IF ANY U.S. LAWS WERE VIOLATED.

    “…to review cases of torture committed by CIA operatives…” “…the alleged “Christmas Day bomber…” “…no matter the nature of the alleged crimes…” “If Mohammed and his cohorts are guilty…” “…treating suspected terrorists…” Allow me to summarize: Terrorists are only terrorists after a jury has reached a unanimous verdict, but those filthy CIA henchmen are guilty as sin. Imagine the audacity of us right-wingers to critique Holder’s decisions and defend our CIA heroes, who did the unpleasant work that has saved thousands of American lives. You are a liberal in good standing and the mindset revealed by your writing perfectly encapsulates the left’s view of the world.

    (continued…)

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  9. For you torture is like man-made global warming: If the words are repeated enough, they must be true; no need to investigate further. But evidence, whether in the form of incriminating “climategate” emails or so-called “torture memos,” proves inconvenient for accepted wisdom. Have you read the memos, released for the failed purpose of discrediting President Bush, while accomplishing a hopefully unintended result of giving valuable intelligence to our enemies? The memos show an inordinate amount of concern for the well-being of our captured evil-doers; an almost indecent decency towards those who want us dead.

    For the love of God, Mark, put down the “New York Times”! At least 14 times in the past, including three times in this post alone, you have cited a newspaper that spent eight years aiding and abetting our enemies by revealing our secrets until suddenly finding patriotism in the age of Obama. Instead, I would suggest a jaw-dropping new book, “Courting Disaster” by Marc A. Thiessen, but I fear you wear your distain for President Bush like a security blanket, and its subsequent loss would be psychologically devastating. Still, if you’re a tenth as brave as our CIA agents, give it a try with one warning: stock up on brownie mix because you’ll be travelling to Crawford, Texas with hands full and lips puckered.

    YET IT WAS RONALD REAGAN WHO SIGNED THE CONVENTION AGAINST TORTURE IN 1988, WHICH NOT ONLY DECLARED THAT THERE EXISTS "NO EXCEPTIONAL CIRCUMSTANCES WHATSOEVER" JUSTIFYING TORTURE, BUT ALSO REQUIRED ALL SIGNATORY COUNTRIES TO "ENSURE THAT ALL ACTS OF TORTURE ARE OFFENSES UNDER ITS CRIMINAL LAW."

    It’s swell that you’re coming to a belated appreciation for one of our greatest presidents, but this information, as well as the other parts of your blog dealing with torture is non-applicable, in that we have not tortured terrorists. Holder 4.0 should know this, so when, during his confirmation hearing, he said, “If you look at the history of the use of that technique used by the Khmer Rouge, used in the Inquisition, used by the Japanese and prosecuted by us as war crimes. . .I agree with you, Mr. Chairman, water boarding is torture,” he was being either willfully ignorant of the facts or an unprincipled politician dutifully carrying water for his boss.

    Mr. Thiessen provides very detailed descriptions of CIA water boarding techniques and the book is worth its price for that alone, but for this purpose perhaps the best indications that water boarding is not torture are that tens of thousands of American troops have been water boarded as part of their training and that writer Christopher Hitchens requested to be water boarded. Hitchens, in fact, was so ashamed at how fast he cracked that he requested a do-over. Although Hitchens is of the opinion that what he experienced was torture, Mr. Thiessen observes that a common sense definition of torture is that, “if you are willing to try it to see what it feels like, it is not torture.” It could be added that if you are willing to do it twice you are closer to the definition of a hobby than torture.

    As for Holder 4.0’s moral equivalence: The Khmer Rouge would handcuff a man head first inside a barrel and then fill it with water; during the Inquisition a man was secured to a trestle with sharp cords and bands that cut into the body and tore away flesh. A strip of linen was then forced down the man’s throat to conduct the water; the Japanese bound the victim and then forced enough water through his mouth and nose to expand his internal organs until he passed out from pain. Then they would jump on his stomach to force out the water and start again.

    (continued…)

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  10. Water boarding American style is quite different, not least in the fact that there is never any chance of drowning; it simply “produces the perception of ‘suffocation and incipient panic,’ i.e., the perception of drowning.” In exchange, three terrorists cooperated completely, allowing the U.S. to foil numerous plots to murder thousands upon thousands of Americans.

    As the man ultimately responsible for keeping Americans safe from enemies foreign and domestic stated in 2007: “Despite the record of success, and despite the fact that our professionals use lawful techniques, the CIA program has come under renewed criticism in recent weeks. Those who oppose this vital tool in the war on terror need to answer a simple question: Which of the attacks I have just described would they prefer we had not stopped? Without this program, our intelligence community believes that al Qaeda and its allies would have succeeded in launching another attack against the American homeland. This CIA program has saved lives -- it is vital to the security of the American people.”

    Ask yourself what you would say to the parents who went to the airport this past December expecting to pick up their college-age daughter for Christmas break only to discover that the plane and everyone aboard was blown to bits by a second pink panty bomber because the first bomber thought it was wise to heed the advice to remain silent? Articulate the higher ideas that required their sacrifice and her death.

    INDEED, THE SAME DAY HOLDER ANNOUNCED THAT MOHAMMED AND FOUR OTHERS WERE TO BE TRIED IN FEDERAL COURT FOR THE 9/11 ATTACKS, HE ALSO ANNOUNCED THAT FIVE DETAINEES WOULD BE TRIED BEFORE A MILITARY COMMISSION FOR THE U.S.S. COLE BOMBINGS OFF THE COAST OF YEMEN IN 2000.

    Andrew McCarthy, who may be the foremost prosecutor of terrorists (that is, he put terrorists “in” jail, something to keep in mind when we run out of Holder versions and decide to try a new operating system), had this to say about that: “For centuries, the laws of war have strived to protect civilians by rewarding combatants with benefits for confining their attacks to military targets. Yet, the Obama administration is giving the Cole bombers a military commission while the 9/11 attackers, who murdered civilians in addition to attacking the Pentagon, get the gold-plated due process of the civilian courts. This is simply perverse.”

    Now why would Holder 5.0 provide the mastermind of the biggest attack on America the more visible forum of a civilian federal trial and leave the perpetrators of the less impressive attack on the Cole to be tried by military commission? The answer might be found in Mayer’s article, which quotes Holder: “I don’t apologize for what I’ve done . . . History will show that the decisions we’ve made are the right ones. (the decision regarding Khalid Sheikh Mohammed will be) the defining event of my time as Attorney General.” Holder 5.0 predicted that the KSM trial would be “the trial of the century.” I wonder if he was this boastful and confident after freeing 11 terrorists and pardoning the fugitive Marc Rich, or has this unseemly self-absorption developed under the tutelage of his B-plus boss?

    THE CLASSIFIED INFORMATION PROCEDURES ACT, PASSED BY CONGRESS IN 1980, ALLOWS THE GOVERNMENT, WITH THE COURT’S CONSENT, TO WITHHOLD CLASSIFIED INFORMATION, PRODUCE SUMMARIES OR REDACTED VERSIONS, AND DISCLOSE SUCH INFORMATION ONLY TO DEFENSE LAWYERS WITH HIGH-LEVEL SECURITY CLEARANCES.

    Two words: Lynne Stewart.

    SECOND, LIKE MILITARY JUDGES, FEDERAL JUDGES HAVE THE AUTHORITY TO GAG OR REMOVE DEFENDANTS WHO ATTEMPT TO DISRUPT THE TRIAL.

    Disrupt the trial? Why would they misbehave when they know they’ll have an opportunity to sit in the witness stand for as long as they want?

    (continued…)

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  11. IT IS NOTABLE THAT OTHER COUNTRIES VICTIMIZED BY MAJOR TERRORIST ATTACKS OVER THE LAST SEVERAL YEARS, INCLUDING BRITAIN, SPAIN, INDIA, AND INDONESIA, HAVE SUCCESSFULLY TRIED AND CONVICTED THE PERPETRATORS OF THOSE TERRORIST ACTS IN THEIR CIVILIAN COURT SYSTEMS, IN THE VERY CITIES IN WHICH THE TERROR ATTACKS OCCURRED.

    Again with the lesser countries? Is there anything, in your opinion, that the rest of the world can learn from America?

    IT IS DISHEARTENING TO SEE SO MANY PEOPLE WILLING TO THROW AWAY THE CONSTITUTION’S BASIC RIGHTS. IF MOHAMMED AND HIS COHORTS ARE GUILTY, AS WERE MOUSSAOUI AND REID AND THE 150 OTHER TERRORISTS WE HAVE CONVICTED IN FEDERAL COURT, THEN LET US DEMONSTRATE IT IN A TRIAL THE WORLD CAN JUDGE AS FAIR AND JUST. DETAINING PEOPLE WITHOUT CHARGING THEM, WITHOUT ALLOWING THEM REASONABLY TO DEFEND THEMSELVES, AND WITHOUT GIVING THEM A FAIR TRIAL – NO MATTER THE NATURE OF THE ALLEGED CRIMES – IS NOT THE AMERICAN WAY, IS NOT JUSTICE, AND IS NOT A LEGAL SYSTEM WORTHY OF THIS GREAT NATION.

    Cheer up, Mark. The Founders anticipated that they had not just won the war to end all wars and so designed the Constitution to accommodate the inevitability of future wars. Criminals are not prosecuted by generals and lawyers don’t prosecute war. Two sets of rules exist to address crime and war. As history shows, those rules have worked fine in the past. Ironically, our good fortune of suffering only a few attacks on our soil over the years, means we have to relearn some of the dusty rules of war. It doesn’t help that there appears to have been a recent explosion in the number of bleeding hearts without the common sense ability to differentiate between an Al-Qaeda trained terrorist attempting to blow up an airliner in the name of Allah and a hijacker looking for ransom and a safe place to land. What you should find worrisome is the possibility that all the hand wringing and false accusations of torture and battlefield atrocities might just discourage the rough men of our military from visiting violence upon those who want to kill soft and spoiled Americans like you and me. It’s a strange but true juxtaposition that we don’t have a shortage of men willing to die for us, but these men will not and should not risk going to jail for us.

    Rich R.

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  12. Rich,

    I am not sure if I should comment or seek a TRO. We obviously disagree. I agree with the Attorney General of the United States, the U.S. Supreme Court, the FBI, the Departments of State and Defense, the U.S. Army Field Manual, our western democratic allies (many of whom have vast experience in dealing with domestic terrorism – oh, yeah, you do not think we should ever listen to any country that disagrees with Dick Cheney – my mistake), and every presidential administration prior to and since George W. Bush. You agree with Cheney, John Yoo, and Marc Thiessen. I prefer my company.

    For the record, I do not personally disdain former President Bush. I believe that he acted sincerely and in good faith in believing he was doing what was best for the country, however much I may have disagreed with many (though by no means all) of his policies. I only wish you would have the courtesy to give the same degree of respect to President Obama and Mr. Holder. You too often resort to name calling and ridicule, which is, quite frankly, tiresome.

    Obviously, what I think is best about America and its ideals – commitment to the rule of law and a respect for human rights – you believe are its worst attributes. But permit me to make a few points in response to your vitriolic diatribes.

    First, it was not a “duty FBI agent” that first questioned Abdumutallab, but veteran agents with vast counterterrorism experience. They were led by the special agent in charge of the FBI’s Detroit office, who has run antiterrorist operations across the world. It is disappointing to see you and others smear the law enforcement community by implying that they are incapable of doing their jobs properly. Our justice system has been an integral weapon in our counterterrorism efforts and a primary reason for our successes over the past several years. Interestingly, you ignored that portion of my essay that discussed the successes of criminally prosecuting terrorists versus the very poor record of the military tribunals.

    Second, the New York Times is not an enemy of the state. Although you may disagree with its editorial pages, and like any paper it makes mistakes, it remains the best news organization in the world. You should try reading it some time. Turn off Fox, you may actually learn something occasionally.

    Third, your “perception” of Eric Holder is just plain wrong. I know and have worked for Holder, and I cannot think of a more honorable or qualified person to lead the Department of Justice. Your attacks on him just make you look bad. Reasonable people can differ on whether the acts of September 11, 2001, were crimes to be handled in court or acts of war to be tried by military tribunals. Holder actually believes in using all of the tools available to us, consistent with the law and our Constitution, in the fight against terrorism. But you seem not to realize this as you are so busy demonizing those with whom you disagree.

    (cont'd)

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  13. Rich (cont'd):

    With respect to Marc Thiessen’s book, please read Matthew Alexander’s critique in Slate.com (http://www.slate.com/id/2246692/). Alexander is a former senior military interrogator and author of "How to Break a Terrorist: The U.S. Interrogators Who Used Brains, Not Brutality, To Take Down the Deadliest Man in Iraq." Alexander notes that, while many of Thiessen's opinions are appalling from a moral perspective, “the book is comprised of errors, omissions, and a whopping dose of fear-mongering.” Here are a few of Alexander’s criticisms:

    “First, Thiessen promulgates a theory that Islamic extremists are uniquely deserving of torture because they are doctrinally obligated to resist cooperating, after which they may disclose information. Of course this isn't unique to Islamic extremists. The U.S. military's own Code of Conduct and the resistance training given American soldiers impose the exact same requirements. Article V, pertaining to interrogations states: 'I will evade answering further questions to the utmost of my ability.' Moreover, regardless of our enemy's resistance philosophy, we have legal obligations to treat them humanely. If an American soldier is captured, would we want his obligation to resist turned into a justification that allows him to be water-boarded into cooperating?

    “Thiessen also asserts that Khalid Sheikh Mohammed was not rendered ineffective after his capture (and was still an active combatant) because he had knowledge of future attacks. The CIA was thus justified in torturing him. But every captured enemy has information of future plans or other valuable information about capabilities. Thiessen's justification could be used to water-board everyone we capture. The standard for detainee treatment is not a sliding scale based on a particular captive's knowledge. It's a constant based on law and our principles.”

    …”Serious interrogators have little doubt that we would have gotten better information from KSM, and sooner, had the interrogations been conducted by professional interrogators using noncoercive techniques.”

    “...Throughout his book, Thiessen comes back to a single argument: Abusing prisoners is acceptable because it saves lives. But Army regulations prohibit coercion without exception. Thiessen never bothers to cite military doctrine in his research. Had he read the Army Field Manual's instructions, he would have to answer for the fact that it cautions: 'Revelation of use of torture by US personnel will bring discredit upon the US and its armed forces while undermining domestic and international support for the war effort. It may also place US and allied personnel in enemy hands at greater risk of abuse by their captors.' Torture makes Americans less safe, not more so. The fact that al-Qaida would use Bush's abusive interrogation policy to recruit new fighters was not a surprise that cropped up after Abu Ghraib and Guantanamo. It was anticipated and codified into Army doctrine long before. . . .

    “Thiessen and the torture apologists mock every American soldier who has followed the rules of law and ethical warfare. He insults every interrogator who has learned to elicit information without resorting to medieval abuses. The America that I know and signed up to defend does not stand exclusively for security. It also stands for freedom, justice, and liberty. It stands for universal rights afforded to every human being (even unlawful combatants or "detained persons"). . . . Yet, in Courting Disaster, Thiessen thoroughly villainizes those who defend individual rights against the state. . . . Thiessen's ideology represents exactly what we are fighting against in the battle with Islamic extremism—the regression of human rights and the sacrifice of individual protections to the state.”

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  14. Mark,

    When I read one of your posts I imagine it being read by someone who has no independent knowledge of the facts and then I ask myself what that person learned. If, in my opinion, they are left with an incomplete picture, I feel compelled to expand on your post. So for example, someone having finished your Holder post would incorrectly believe, among many other things, that the CIA tortures people; that there have been no lives saved by the efforts of the CIA; that civilian trials reduce the incidents of terrorists acts; that AG Holder is without flaws and driven only by the desire to do the right thing regardless of politics; and that AG Holder has been criticized unfairly and only by right-wing Republicans. I then provided information to balance out your post. Having read your response I see that there are only a few examples of you disagreeing with my facts (considering that much of it was legal and Constitution stuff I must say I’m immodestly pleased with myself), with the main issues being your disagreeing with what you “perceive” I meant.

    “YOU TOO OFTEN RESORT TO NAME CALLING AND RIDICULE, WHICH IS, QUITE FRANKLY, TIRESOME.”

    This is the second time you accused me of name calling without citing examples. Stating facts is not ridiculing or demonstrating a lack of respect. What facts in my response were inaccurate? What I did was provide balance to a fan letter.

    “OBVIOUSLY, WHAT I THINK IS BEST ABOUT AMERICA AND ITS IDEALS – COMMITMENT TO THE RULE OF LAW AND A RESPECT FOR HUMAN RIGHTS – YOU BELIEVE ARE ITS WORST ATTRIBUTES.”

    Attributing to me what I did not say has become a habit. You will notice that I specifically countered (or tried to) what you actually wrote, not what I thought you meant.

    “. . . YOU IGNORED THAT PORTION OF MY ESSAY THAT DISCUSSED THE SUCCESSES OF CRIMINALLY PROSECUTING TERRORISTS VERSUS THE VERY POOR RECORD OF THE MILITARY TRIBUNALS.”

    On the contrary, I spoke highly of Andrew McCarthy who has been very successful at putting terrorists in jail. His expertise in the court room against terrorists makes him the go-to guy when trying to determine if civilian trials should be used against high profile terrorists (from the Washington Post: “The president's advisers feel increasingly hemmed in by BIPARTISAN opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said.”). What I took issue with was the idea that civilian terrorist trials are a weapon against terrorists; that our enemy will see the light and stop attacking us. To do this, I cited examples that went unchallenged.

    “. . . YOUR “PERCEPTION” OF ERIC HOLDER IS JUST PLAIN WRONG. I KNOW AND HAVE WORKED FOR HOLDER, AND I CANNOT THINK OF A MORE HONORABLE OR QUALIFIED PERSON TO LEAD THE DEPARTMENT OF JUSTICE. YOUR ATTACKS ON HIM JUST MAKE YOU LOOK BAD.”

    Were my facts wrong? And does someone reading only your post have enough facts to make an informed judgment of AG Holder, or does my information provide much needed balance? And more importantly, WERE MY FACTS WRONG? If my facts are accurate, how in the world can I look bad or be accused of attacking him?

    Did he release terrorists? Do you think that showed good judgment? Do you think it was a good idea?

    Did he secure the pardon of Marc Rich, while Rich was still a fugitive? Did that show good judgment? Was that a good idea?

    (continued...)

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  15. Did he choose to try Khalid Sheikh Mohammed in New York and did that not anger both Republicans and Democrats?

    Has he blocked lawsuits by those who claimed they were tortured? Do you think that is a good idea?

    Was there not a change in AG Holder’s opinion concerning what protections to afford a terrorist? Which opinion do you agree with?

    What is AG Holder’s opinion on Mirandizing OBL?

    Was he being fair in comparing water boarding to water torture? Do you see them as the same thing?

    Is it unfair to quote AG Holder saying that the KSM trial will be the “trial of the century,” and does that make O.J. Simpson feel bad?

    Are these really examples of “attacks”?

    Would it be an additional attack to compare and contrast statements made by AG Holder: "History will show that the decisions we’ve made are the right ones. (the decision regarding Khalid Sheikh Mohammed will be) the defining event of my time as Attorney General," versus, "At the end of the day, wherever this case is tried, in whatever forum, what we have to ensure is that it's done as transparently as possible and with adherence to all the rules . . . If we do that, I'm not sure the location or even the forum is as important as what the world sees in that proceeding."

    REASONABLE PEOPLE CAN DIFFER ON WHETHER THE ACTS OF SEPTEMBER 11, 2001, WERE CRIMES TO BE HANDLED IN COURT OR ACTS OF WAR TO BE TRIED BY MILITARY TRIBUNALS.

    I absolutely agree. Unfortunately, this sentiment was not conveyed in your original post. In fact, just the opposite. Anyone who disagreed with AG Holder was “attacking” him and they were only “right-wing conservatives,” resorting to “shameful political grandstanding of the most dangerous kind.” Does this rate as name calling? Does it make you look bad?

    HOLDER ACTUALLY BELIEVES IN USING ALL OF THE TOOLS AVAILABLE TO US, CONSISTENT WITH THE LAW AND OUR CONSTITUTION, IN THE FIGHT AGAINST TERRORISM. BUT YOU SEEM NOT TO REALIZE THIS AS YOU ARE SO BUSY DEMONIZING THOSE WITH WHOM YOU DISAGREE.

    In order for the charge of “demonizing” to stick, my facts must be false. Once again, are my facts wrong?

    Regarding my reference to Marc Thiessen’s book, you choose to rebut me by citing a review by someone else. I’ll withhold comment until you gather firsthand knowledge. I did not dispute your interpretation of the Supreme Court’s rulings by citing someone else’s opinion, but by reading the decisions and forming my own opinions, which I was pleased to see you left unchallenged.

    As is often the case, you ignore the tough questions. I still await your answer to my tax question: will you contribute extra money to the government in April so it can do all the wonderful things you believe should be done by the government? And now I look for the answer to the question posed by President Bush and then by me. How would you answer the grieving Americans who lost loved ones because we refused to subject evil men to a pretend drowning?

    Regarding the New York Times . . . well that’s a ten thousand word essay right there, so I’ll wait until you do a piece on the Grey Lady before I wade in.

    I may not always succeed, but I try to avoid reading meaning into what you write, and instead take you at your word. I resist interpreting what you believe and try not to guess at what you perceive. I rely on facts and I don’t rest my case on feelings. If AG Holder is the most honorable and qualified person to lead the Department of Justice, then give your readers something to base that on. You worked for him for more than three years; surely there are vignettes you could provide that support your characterization.

    Rich R.

    P.S.

    I guess I did make fun of Justice Ginsburg, didn’t I? But admit it, it was funny.

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  16. P.S.S.

    Speaking of funny, after I explained to my wife what a TRO was, she almost fell out of her chair.

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  17. Rich,

    First, my post made very clear from the start (I even called it a "disclaimer") that I personally know and like Eric Holder. Anyone reading my piece would therefore be well aware of any biases I may bring to my essay. But, like you, I cite a lot of facts, all of which are true. Where I am expressing my opinion, that too is very clear. You claim to cite all sorts of facts, but it is mixed in with all sorts of really biased, slanted opinion. That's fine, but don't try to suggest that you cite only facts and I only argue opinion. This is why two people arguing over the same thing, each citing a number of facts, can still be vehemently opposed to each other's conclusions. It may be that the CIA's waterboarding in three cases got some really good information, perhaps even saved lives (I never suggested otherwise by the way). The question is, however, whether professional interrogators using non-coercive tactics get more, better, and quicker information, thus rendering us more safe. We have loads of experience using the latter form of interrogation and have been very successful with the non-coercive approach. So, who is correct? You and I will never agree, but it has nothing to do with possessing right or wrong facts. Much of our disagreement has to do with our views of morality and justice.

    Second, you claim that you don't engage in name-calling. Fine, perhaps it is simply the tone in which you write – the references to “jammies” and “warm milk” (i.e., “you’re obviously too dumb and naïve to understand how us brave, courageous defenders of freedom operate” – yes, I know you didn’t actually write this, but tell me that’s not what you were really trying to say over the course of your comments), the fact that you tell me to kiss someone's ass and pucker up, “bleeding hearts without the common sense or ability to differentiate between an al-Qaeda trained terrorist [from] a hijacker looking for ransom…”, or when you state that Holder's only experience in terrorism related matters was in setting them free – as if these are factual statements. (Do you know anything about Holder's background and experience -- the types of cases he oversaw as US Attorney in DC and as Deputy AG; as a Judge on DC Superior Court; or as a career prosecutor in the Public Integrity Section? I didn't think so). The main problem with your comments is that you paint an unfair picture and do not give credit where credit is due. Do I really have to provide vignettes and write a biography of Eric Holder to back-up my belief in his integrity and honor?

    If someone asked me about Rich R., my response would be that, although politically whacko, he is an honest, forthright person, hard working and the type who, I am sure, would give you the shirt off his back. This is my opinion, based on my interactions with you over the years. But your critics would say, that's just your opinion -- what are you basing that on? Besides, Rich R. has helped a lot drug dealers and criminals obtain lenient sentences for snitching on their friends; people who have been responsible for smuggling tons of marijuana and other drugs into this country and selling drugs to children. These are true, factual statements, but do they present a fair picture of Rich R? Isn’t there a whole other perspective that would provide some balance to the “Rich R freeing drug dealers” slant? Besides, do I have any real proof of Rich R’s honor and integrity? No, but I pride myself on being a pretty good judge of character. You can take trust my judgments, or not, but I am not going to write a treatise trying to convince anyone of my personal judgments.

    cont’d)

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  18. Rich (cont’d):

    You claim that your comments are entirely factual. Two examples of your being wrong: You contended that "[t]he pink panty bomber should have been turned over to the military interrogators immediately, instead of the duty FBI agent, whose last interview was with a dumb ass bank robber or a two-bit drug dealer." This is not only factually wrong, it is insulting to the FBI. See my first comment above -- #12 overall. Your discussion of the Hamdan case is also inaccurate. The opinion was authored by Justice Stevens, not Breyer (he wrote a concurrence). All five justices held “that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions.” Four of the justices also concluded that offense with which Hamdan was charged was not an offense that by “the law of war may be tried by military commission” under 10 U.S.C. § 821. Thus, part of the Court’s ruling rested on the notion that the commissions were not statutorily authorized (and you are right that the Military Commission Act corrected some of the procedural deficiencies – which is why Holder chose to continue to use Commissions in appropriate cases – such as the Cole bombing – a terrorist act against a U.S. military target on foreign seas.) But as the court explained, “[t]he UCMJ conditions the President’s use of military commissions on compliance not only with the American common law of war, but also with the rest of the UCMJ itself . . . and with the ‘rules and precepts of the law of nations,’ . . . the four Geneva Conventions signed in 1949. . . . The procedures that the Government has decreed will govern Hamdan’s trial by commission violate these laws.” The court spoke at great length of all that was wrong with the military commissions as designed by the Bush administration, leading to its conclusion that “the rules specified for Hamdan’s trial are illegal.”

    There are a whole host of things you have said that I take issue with, factually and morally, but I do not I respond to every little thing because I am not about to spend the rest of my life nit-picking you in the same manner you attempt (unsuccessfully) to nit-pick me (your worse than Neil Jokelson -- remember him?). My silence on a subject is not agreement.

    You state with certainty that water boarding is not torture – if not, then the independent counsel reviewing the CIA’s activities will presumably have no basis to conclude that any laws were violated (of course, there is reason to believe that a lot more, and worse, things were done than waterboarding – but until we have a chance to review what actually occurred, and pursuant to what authority, we really can’t make a determination). You contend that our waterboarding is less offensive than other nation’s waterboarding. This may very well be true. But stating that our torture is more humane than the torture they used during the Inquisition is an argument I don’t find very compelling. The problem with us engaging in torture, just like the problem with us throwing away constitutional protections, is that it means the terrorists have won. I refuse to concede this.

    You ask a lot of questions. I don’t have the time or inclination to attempt to answer them. (What do you think this is, a lawsuit? Have your counsel send me the interrogatories and schedule my deposition. Otherwise, I have a day job to attend to, and I would like to actually work on another blog post. You’re killing me, man.)

    (cont'd)

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  19. Rich (cont'd):

    But since you won’t give up the tax question, here it goes. No, I will not give the government more money in April than I am lawfully required. I will continue to contribute to the charities of my choice, and I will continue to advocate for government spending that helps to improve this country and the lives of the people in it, including the poor and working class (because private charity alone has never been sufficient). Budgets are moral documents, and they reflect the moral values of a society. But while I will not contribute more taxes than my fair share, nor will I ask the government to give me back the money spent on a war I did not believe in, and which put us an additional trillion dollars in debt (and counting). We live in a democracy. I recognize the necessity of taxes to pay for all of the services and benefits that the government provides to this country. I don’t like paying tolls on the NJ Turnpike either, but I do like having roads that are smooth and don’t eat my car.

    Now, as for the effectiveness of waterboarding. Neither I nor you know the ultimate answer to this question. I do know, however, that KSM was water-boarded 183 times and we still have not caught bin-Laden. We apparently did not get much useful information out of KSM because, if water-boarding were so effective, don’t you think one or two times would have done the trick? But what do I know. About as much as Marc Thiessen, a speech writer with no intelligence or military experience. But this is why we debate.

    Finally, I found it amusing that you think so highly of Justice Scalia’s Harvard education. Your description of him would fit just about the entire Supreme Court, Barack Obama, and Eric Holder (although he went to Columbia, a really sucky law school). If only Scalia had attended George Washington, then you would have a point.

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