DOJ

Lawyers, damn lawyers, and Al Qaeda; Mark Levin stands with Keep America Safe

Mark Levin stands with Keep America Safe and disputes “the group of leading conservative lawyers and policy experts denouncing as “shameful” Republican attacks on lawyers who came to the Obama Justice Department after representing suspected terrorists.”

“The isn’t the Boston Massacre. You have people in the position of defending this nation at the highest levels of the Justice Department who have represented the enemy, and their belief systems have clearly affected national security policy. … And in some cases, these lawyers were not just representing clients, they went out and found them, sought them out. They considered them some of the most important cases they ever had. “Due process rights for the enemy? Absolutely. Civilian justice for the enemy? Absolutely.” Now they’re in government making the same exact decisions except they are setting policy. … Ben Smith at Politico, why don’t you make a list of some lawyers like me, former Chief of Staff to Attorney General Meese; I side with Liz Cheney and Debra Burlingame and Keep America Safe.”

Here is the complete audio of Mark on this from last night:

On February 26, 2010, Mark Levin cited a factual account of the Boston Massacre and John Adams’ truly noble role in its aftermath. Mark added:

“[T]hese things get used to distort current events. … The Boston Massacre had nothing to do with overthrowing the United States — it was a tragedy and John Adams did not seek as his goal to confer special rights on people who were plotting to destroy American society through any means possible.”

I offer Mark’s commentary as further evidence that to cite John Adams as a comparable example to the allegedly altruistic work of the ‘Al Qaeda Seven‘ (among others) fractures American history. Worse, it unwittingly lends credibility to the ACLU’s vile use of that Founding Father and a great patriot’s name in their insidious attempt to undermine our national security and to criminalize America’s use of military force in the Nation’s defense.

“If lawyers choose to volunteer their services to the enemy in wartime, they are on the wrong side of that fault line, and no one should feel reluctant to say so.” — Andrew McCarthy

“If not for the vigilant work of Keep America Safe, the corruptocrat Attorney General Eric Holder’s national security stone wall on DOJ’s terror lawyers would still be standing. Asking politely, in respectful tones with bowed heads and stooped spines, did not get the DOJ to cough up the names.” — Michelle Malkin

David Rivkin and Marc Thiessen: A Tale of Two Terrorists (AG Holder sends a WOT canary in to destroy the Bush doctrine)

Fn 12 on page 59 of the DOJ’s December 18, 2009 rebuttal to Ghailani’s Speedy Trial Motion to dismiss his case in federal court. Click to enlarge

In their Wall Street Journal op-ed today, David B. Rivkin and Marc Thiessen understated the significance of the Bush doctrine arguments filed on December 18, 2009 by the Department of Justice and used to rebut the Speedy Trial Motion to dismiss the federal case against Ahmed Ghailani. Surely U.S. Attorney Preet Bharara did not file contrary to the direction of Attorney General Eric Holder.

Mr. Bharara is no doubt a dedicated public servant. I have great personal faith in his abilities, loyalty to our Nation, and willingness to do all that he can to successfully prosecute Ahmed Ghailani to the fullest extent of the law. That said, Ghailani is President Barack Obama’s canary for the federal prosecution of Khalid Sheikh Mohammed, his 9/11 co-conspirators, and perhaps 40 more detainees currently being held at Guantanamo Bay. For the criminalization of the war against terror to succeed, Ghailani’s motion must fail. It is ironic and insidious that Obama and Holder must first defend what they seek to destroy:

On Dec. 18, 2009, days before the Christmas attack, the U.S. attorney for the Southern District of New York, Preet Bharara, made a secret filing in federal district court that was aimed at saving the prosecution of Ahmed Ghailani, another al Qaeda terrorist. Ghailani is facing charges for helping al Qaeda bomb U.S. embassies in Kenya and Tanzania in 1998. Ghailani argues that those charges should be dropped because lengthy CIA interrogations have denied him his constitutional right to a speedy trial.

Mr. Bharara, on behalf of the Justice Department, filed a memorandum with the court stating that Ghailani’s claims are dangerous and off the mark. Interrogating terrorists must come before criminal prosecution, he wrote in language so strong that even a redacted version of his filing (which we have obtained) serves as a searing indictment of the administration’s mishandling of Abdulmutallab.

“The United States was, and still is, at war with al Qaeda,” Mr. Bharara argued. “And because the group does not control territory as a sovereign nation does, the war effort relies less on deterrence than on disruption—on preventing attacks before they can occur. At the core of such disruption efforts is obtaining accurate intelligence about al Qaeda’s plans, leaders and capabilities.” … READ THE REST

Review again the image above and think about Flight 253 bomber Umar Farouk Abdulmuttalab. Then read this fuller excerpt from the DOJ’s rebuttal. It begins with the last paragraph on page 46 (B. Discussion) and runs through the partially transcribed paragraph on page 50. (Except where clarification was needed, citations and footnote numbering were omitted from this transcription):

First, the Government’s interest in protecting national security justified the delay in this case. The Supreme Court has stated that is “‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” If vindicating the Government’s interest in, for example, presenting a more effective case by seeking to persuade a co-defendant to testify against the defendant is a “valid” reason for delay, it follows that this most compelling of interests is “valid” as well.

Indeed, delay is more justifiable in this case than when the Government delays a trial to persuade a co-defendant to testify against the defendant (an in Vassell). In both cases, the defendant’s trial is intentionally delayed by the Government. But it is only in the Vassell-type situation that the Government delays the proceedings in order to put the defendant himself in a worse position at trial. The possibility that the delay will harm an individual’s defense at trial is the core concern of the Speedy Trial Clause, and the Vassell-type situation skirts close to this concern in that situation, then surely it may be put off in a case such as this — when the purpose for the delay was not to enhance the chances of convicting the defendant, but rather to obtain information that could be used to prevent future terrorist attacks against the nation by incapacitating others…

The defendant attempts to discredit the importance and relevance of national security in this case by calling it “an intentionally amorphous concept that can fluctuate depending on the specific aims that the Government seeks to protect.” But, however vague or overstated the invocation of national security could conceivably be in other contexts, there is nothing “amorphous” about the concept as applied here, and no question that the strength of the Government’s interest was at its zenith in this case. The defendant was a longstanding al Qaeda terrorist, and al Qaeda is the group responsible for the brutal murder of thousands of American citizens here and abroad. The United States was, and still is, at war with al Qaeda. And because the group does not control territory as a sovereign nation does, the war effort relies less on deterrence than on disruption — on preventing attacks before they occur. At the core of such disruption efforts is obtaining accurate intelligence about al Qaeda’s plans, leaders, and capabilities. [emphasis added mine]

In these circumstances, the Executive Branch’s decision initially to treat the defendant, a foreign national captured abroad in an al Qaeda safe house after a 14-hour gun battle, as an intelligence asset — to detain him abroad in order to detain vital, real-time intelligence about al Qaeda — warrants considerable deference. As the Supreme Court explained only last year:

In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches. Unlike the President and some designated Members of Congress, neither the Members of the Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security.

Boumediene; see also e.g. United States v. Moussaoui … cf. Central Intelligence Agency v. Sims.

The pdf of the DOJ’s rebuttal is in two parts, here and here, if you wish to download it.

Congress dodged authorizing ‘indefinite detention’ in Gitmo bill

While Michelle Malkin writes the Senate’s passage of the Homeland Security authorization brings us ‘One step closer to bringing Gitmo circus to U.S. soil,’ the two primary effects are these:

The language they used, i.e. for “prosecution” or “legal proceedings,” is an unfunny joke. With litigation pending on every detainee, the latter provides the administration a loophole to bring those they have no intention of prosecuting into the U.S., without having to call it indefinite detention.

The bill deletes the requirement for the DHS to conduct a threat assessment of each detainee prior to their being brought into the U.S. Should the Supreme Court decide against the pending appeal made by the DOJ of the lower court’s decision concerning the Uighurs, we will come full circle back to the Real ID Act. Will the administration then state they may not immigrate because either they trained in terrorism or are associated with a terrorist organization? More likely, President Barack Obama will punt another national security decision to the judiciary branch by allowing known terrorists to immigrate to the U.S. under the guise of “rule of law” and “our core values.”

Update: Perhaps some are not seeing the significance of “legal proceedings.” President Obama has no intention of keeping the detention facilities at Guantanamo open one day longer than necessary. In line with Boumediene v Bush, federal judges are already adjudicating whether Gitmo’s detainees can lawfully be detained and ordered a number of them released (with few nations taking them). Beyond the current litigation, their lawyers have hundreds of briefs waiting to file as soon as the detainees arrive on U.S. soil on all those not prosecuted; the ACLU is salivating at the thought of getting their clients into immigration court.

Congressman Pete Hoekstra to AG Eric Holder: ‘Don’t Make the CIA the Fall Guy’

On the NRO’s Corner, Robert Costa writes:

Rep. Pete Hoekstra (R., Mich.), the ranking Republican member of the House Intelligence Committee, tells NRO that the Obama administration’s national-security apparatus is in “free fall” and showing “no adult leadership.”

After the CIA’s release of documents on enhanced-interrogation techniques, Hoekstra is concerned about how the Department of Justice and Attorney General Eric Holder will respond. But he does express confidence in CIA director Leon Panetta, an Obama appointee.

“I do know that Leon feels passionately about his workforce,” says Hoekstra. It was reported earlier this week that a frustrated Panetta confronted the White House in private about the administration’s handling of the document release. Hoekstra says he “tends to believe that the screaming matches and threatening to quit are probably accurate of Leon’s feelings. I find it ironic that his best friends are Republicans on the Hill.”

Panetta, he adds, “is not getting a lot of support from the president. Eric Holder has declared war on his personnel. … READ THE REST.

Communicating a threat in Supermax; al Qaeda and their lawyers wage jailhouse jihad

President Barack Obama said, “Nobody has ever escaped from one of our federal, supermax prisons, which hold hundreds of convicted terrorists,” during his May 21, 2009 speech at the National Archives.

In this morning’s Washington Post, they report a 2006 Department of Justice memo states that convicted al Qaeda prisoners in Supermax at Florence, Colorado “coordinated the beginning of a hunger strike” and developed “a sophisticated method to resist compulsory feeding” by communicated via “tapping on the pipes.” (Has no one at the Bureau of Prisons ever heard of the Hanoi Hilton and how John McCain et al communicated by tapping on the walls?)

The WaPo stopped short of quoting from footnote 11 on page 13 that, “Ultimately, due to this coordination, the al Qaeda terrorists succeeded in gaining transfer from high security detention.” The DOJ’s memo does not go on to explain if the transfer was temporary or permanent yet there are no reports that al Qaeda detainees were transferred away from Florence. It sounds to me like the BOP, at least temporarily, had to shuffle prisoners around so that the plumbing was not common.

There has always been a waiting list to move dangerous prisoners into Florence’s Supermax yet the number of open beds there has hovered between 26 and 28 (currently 28) the last 3 weeks. Perhaps they are doing some remodeling to both house detainees in a distinct wing and prevent such communications between them once they are there. While that may silence pipeline communications, that will not break the Ratt [sic] line.