Michael Mukasey - Shovel Ready

Michael Mukasey was the U.S. attorney general from 2007 to 2009 and the presiding judge at initial proceedings against Jose Padilla in 2002. He appears in the pages of the Washington Post today to shovel away the incredible amounts of bull excreta piled high onto the counterterrorism issue by Attorney General Eric Holder and Whitehouse Counterterrorism Advisor John Brennan. Specifically, Mukasey rebuts many of the outrageous claims made by Eric Holder in his letter to Mitch McConnell and the equally outragous charges made by John Brennan in his Sunday morning show appearance and his USA Today opinion piece. This from Mr. Mukasey:

. . . When Abdulmutallab tried to detonate a bomb concealed in his undershorts, he committed a crime; no doubt about that. He could not have acted alone; no doubt about that either. The bomb was not the sort of infernal device readily produced by someone of his background, and he quickly confirmed that he had been trained and sent by al-Qaeda in Yemen.

What to do and who should do it? It was entirely reasonable for the FBI to be contacted and for that agency to take him into custody. But contrary to what some in government have suggested, that Abdulmutallab was taken into custody by the FBI did not mean, legally or as a matter of policy, that he had to be treated as a criminal defendant at any point. Consider: In 1942, German saboteurs landed on Long Island and in Florida. That they were eventually captured by the FBI did not stop President Franklin Roosevelt from directing that they be treated as unlawful enemy combatants. They were ultimately tried before a military commission in Washington and executed. Their status had nothing to do with who held them, and their treatment was upheld in all respects by the Supreme Court.

. . . Guidelines put in place in 2003 and revised in September 2008 "do not require that the FBI's information gathering activities be differentially labeled as 'criminal investigations,' 'national security investigations,' or 'foreign intelligence collections,' or that the categories of FBI personnel who carry out investigations be segregated from each other based on the subject areas in which they operate. Rather, all of the FBI's legal authorities are available for deployment in all cases to which they apply to protect the public from crimes and threats to the national security and to further the United States' foreign intelligence objectives." . . .

Contrary to what the White House homeland security adviser and the attorney general have suggested, if not said outright, not only was there no authority or policy in place under the Bush administration requiring that all those detained in the United States be treated as criminal defendants, but relevant authority was and is the opposite. The Supreme Court held in Hamdi v. Rumsfeld that "indefinite detention for the purpose of interrogation is not authorized" but also said in the same case that detention for the purpose of neutralizing an unlawful enemy combatant is permissible and that the only right of such a combatant -- even if he is a citizen, and Abdulmutallab is not -- is to challenge his classification as such a combatant in a habeas corpus proceeding. This does not include the right to remain silent or the right to a lawyer, but only such legal assistance as may be necessary to file a habeas corpus petition within a reasonable time. That was the basis for my ruling in Padilla v. Rumsfeld that, as a convenience to the court and not for any constitutionally based reason, he had to consult with a lawyer for the limited purpose of filing a habeas petition, but that interrogation need not stop.

What of Richard Reid, the "shoe bomber," who was warned of his Miranda rights and prosecuted in a civilian court? He was arrested in December 2001, before procedures were put in place that would have allowed for an outcome that might have included not only conviction but also exploitation of his intelligence value, if possible. His case does not recommend the same procedure in Abdulmutallab's.

The struggle against Islamist extremists is unlike any other war we have fought. Osama bin Laden and those like-minded intend to make plain that our government cannot keep us safe, and have sought our retreat from the Islamic world and our relinquishment of the idea that human rather than their version of divine law must control our activities. This movement is not driven by finite grievances or by poverty. The enemy does not occupy a particular location or have an infrastructure that can be identified and attacked but, rather, lives in many places and purposely hides among civilian populations. The only way to prevail is to gather intelligence on who is doing what where and to take the initiative to stop it.

There was thus no legal or policy compulsion to treat Abdulmutallab as a criminal defendant, at least initially, and every reason to treat him as an intelligence asset to be exploited promptly. The way to do that was not simply to have locally available field agents question him but, rather, to get in the room people who knew about al-Qaeda in Yemen, people who could obtain information, check that information against other available data and perhaps get feedback from others in the field before going back to Abdulmutallab to follow up where necessary, all the while keeping secret the fact of his cooperation. Once his former cohorts know he is providing information, they can act to make that information useless.

Nor is it an answer to say that Abdulmutallab resumed his cooperation even after he was warned of his rights. He did that after five weeks, when his family was flown here from Nigeria. The time was lost, and with it possibly useful information. Disclosing that he had resumed talking only compounded the problem by letting his former cohorts know that they had better cover their tracks.

Many of the points Mukasey raises above I have raised in prior posts, including the two posts I link in the opening paragraph of this post. Regardless, the bottom line is that the Obama counterterrorism effort is a farce. The only thing more farcial is watching Holder and Brennan go on the offensive, attempting to claim that using the criminal justice system to gain wartime intelligence is superior and that, in any event, it was necessary. These people will get Americans killed.

Read More...

Summary only...

Special Interests, Obama, Pelosi and National Security

Mike McConnell, who served both the Clinton Administration and now the Bush Administration, has stated flatly that we need civilian cooperation to conduct our intelligence operations and that failure to pass the FISA reform bill will harm our ability to collect intelligence. On what possible basis than could a minority in the Senate, including Barack Obama, and the House Democratic leadership be seeking to torpedo this bill? The answer lies in one of the many special interests that hold sway over the Democrats - class action lawyers who see a gold mine in suing telecommunications companies for their cooperation with our intelligence community.

___________________________________________________________

This today from Robert Novack, explaining why Democrats are willing to degrade our national security:

A closed-door caucus of House Democrats last Wednesday took a risky political course. By 4 to 1, they instructed Speaker Nancy Pelosi to call President Bush's bluff on extending the Foreign Intelligence Surveillance Act (FISA) to continue eavesdropping on suspected foreign terrorists. Rather than passing the bill with a minority of the House's Democratic majority, Pelosi obeyed her caucus and left town for a week-long recess without renewing the government's eroding intelligence capability.

Pelosi could have exercised leadership prerogatives and called up the FISA bill to pass with unanimous Republican support. Instead, she refused to bring to the floor a bill approved overwhelmingly by the Senate. House Democratic opposition included left-wing members typified by Rep. Dennis Kucinich, but they were only a small faction of those opposed. The true reason for blocking the bill was Senate-passed retroactive immunity to protect from lawsuits private telecommunications firms asked to eavesdrop by the government. The nation's torts bar, vigorously pursuing such suits, has spent months lobbying hard against immunity.

The recess by House Democrats amounts to a judgment that losing the generous support of trial lawyers, the Democratic Party's most important financial base, would be more dangerous than losing the anti-terrorist issue to Republicans. Dozens of lawsuits have been filed against the phone companies for giving individuals' personal information to intelligence agencies without a warrant. Mike McConnell, the nonpartisan director of national intelligence, says delay in congressional action deters cooperation in detecting terrorism.

Big money is involved. Amanda Carpenter, a Townhall.com columnist, has prepared a spreadsheet showing that 66 trial lawyers representing plaintiffs in the telecommunications suits have contributed $1.5 million to Democratic senators and causes. Of the 29 Democratic senators who voted against the FISA bill last Tuesday, 24 took money from the trial lawyers (as did two absent senators, Hillary Clinton and Barack Obama). Eric A. Isaacson of San Diego, one of the telecommunications plaintiffs' lawyers, contributed to the recent unsuccessful presidential campaign of Sen. Chris Dodd, who led the Senate fight against the bill containing immunity.

The bill passed the Senate 68 to 29, with 19 Democrats voting aye. They included intelligence committee Chairman Jay Rockefeller and three senators who defeated Republican incumbents in the 2006 Democratic takeover of Congress: Claire McCaskill of Missouri, Jim Webb of Virginia and Sheldon Whitehouse of Rhode Island.

. . . Nothing will be done until the House formally returns Feb. 25, and the adjournment resolution was constructed so that Bush cannot summon Congress back into session. Last Friday morning, debating two backbench Republicans on a nearly deserted House floor, Majority Leader Steny Hoyer said there was no danger in letting the FISA legislation lapse temporarily. Democrats hope that will be the reaction of voters, as Republicans attack what happened last week.

Read the entire article. For his part, Bill Kristol is urging Democrats to read Rudyard Kipling, author of such non-politically correct prose as "The White Man's Burden:"

. . . Orwell offers a highly qualified appreciation of the then (and still) politically incorrect Kipling. He insists that one must admit that Kipling is “morally insensitive and aesthetically disgusting.” Still, he says, Kipling “survives while the refined people who have sniggered at him seem to wear so badly.” One reason for this is that Kipling “identified himself with the ruling power and not with the opposition.”

“In a gifted writer,” Orwell remarks, “this seems to us strange and even disgusting, but it did have the advantage of giving Kipling a certain grip on reality.” Kipling “at least tried to imagine what action and responsibility are like.” For, Orwell explains, “The ruling power is always faced with the question, ‘In such and such circumstances, what would you do?’, whereas the opposition is not obliged to take responsibility or make any real decisions.” Furthermore, “where it is a permanent and pensioned opposition, as in England, the quality of its thought deteriorates accordingly.”

If I may vulgarize the implications of Orwell’s argument a bit: substitute Republicans for Kipling and Democrats for the opposition, and you have a good synopsis of the current state of American politics.

Having controlled the executive branch for 28 of the last 40 years, Republicans tend to think of themselves as the governing party — with some of the arrogance and narrowness that implies, but also with a sense of real-world responsibility. Many Democrats, on the other hand, no longer even try to imagine what action and responsibility are like. They do, however, enjoy the support of many refined people who snigger at the sometimes inept and ungraceful ways of the Republicans. (And, if I may say so, the quality of thought of the Democrats’ academic and media supporters — a permanent and, as it were, pensioned opposition — seems to me to have deteriorated as Orwell would have predicted.)

The Democrats won control of Congress in November 2006, thanks in large part to President Bush’s failures in Iraq. Then they spent the next year seeking to ensure that he couldn’t turn those failures around. Democrats were “against” the war and the surge. That was the sum and substance of their policy. They refused to acknowledge changing facts on the ground, or to debate the real consequences of withdrawal and defeat. It was, they apparently thought, the Bush administration, not America, that would lose. The 2007 Congressional Democrats showed what it means to be an opposition party that takes no responsibility for the consequences of the choices involved in governing.

So it continues in 2008. The director of the Central Intelligence Agency, Gen. Michael Hayden, the director of national intelligence, the retired Vice Admiral Mike McConnell, and the attorney general, the former federal judge Michael Mukasey, are highly respected and nonpolitical officials with little in the way of partisanship or ideology in their backgrounds. They have all testified, under oath, that in their judgments, certain legal arrangements regarding surveillance abilities are important to our national security.

Not all Democrats have refused to listen. In the Senate, Jay Rockefeller, chairman of the Intelligence Committee, took seriously the job of updating the Foreign Intelligence Surveillance Act in light of technological changes and court decisions. His committee produced an impressive report, and, by a vote of 13 to 2, sent legislation to the floor that would have preserved the government’s ability to listen to foreign phone calls and read foreign e-mail that passed through switching points in the United States. The full Senate passed the legislation easily — with a majority of Democrats voting against, and Senators Obama and Clinton indicating their opposition from the campaign trail.

But the Democratic House leadership balked — particularly at the notion of protecting from lawsuits companies that had cooperated with the government in surveillance efforts after Sept. 11. Director McConnell repeatedly explained that such private-sector cooperation is critical to antiterror efforts, in surveillance and other areas, and that it requires the assurance of immunity. “Your country is at risk if we can’t get the private sector to help us, and that is atrophying all the time,” he said. But for the House Democrats, sticking it to the phone companies — and to the Bush administration — seemed to outweigh erring on the side of safety in defending the country. . . .

Read the article.

Read More...

Summary only...