Ghailani Gets Life without Parole
In November, a New York jury found Al Qaeda bomber Ahmed Ghailani guilty on only one of 285 charges for his role in the Kenya and Tanzania embassy bombings. I called it “a good outcome” for a number of reasons, largely agreeing with Ben Wittes.
I’ve disagreed with Wittes on lawfare issues before, but he and Chesney are right on this case: (1) the defendant will serve a minimum of twenty years in jail, possibly life; (2) it’s not certain that the military commissions would have allowed evidence obtained by coercion (Charlie Savage also made this point in his article for the New York Times), (3) the conspiracy conviction in civilian court is solid on appeal, but not necessarily so in a military commission (conspiracy is not a traditional law of war violation, and three sitting Supreme Court justices have questioned its application in that forum); (4) the forum of conviction is less ripe for attack in courts of law and public opinion.
As it turns out, getting convicted on one of 285 serious charges still gets you a serious sentence… life without parole. Regardless of what Andy McCarthy and Marc Thiessen think, chalk this up as a win.
McCarthy’s World
The NYC/Denver terrorism investigation has Andy McCarthy all riled up.
In this article at National Review, McCarthy says that the risks associated with terrorism require a domestic preventive detention regime where investigators can go to a court with something less than probable cause and detain individuals without charge until they can gather the evidence for an indictment.
This is a pretty bold proposition, given the fact that he lays out in this post on The Corner the power that investigators already have to detain material witnesses while gathering evidence. Not to mention the power to detain allegedly dangerous individuals picked up on relatively minor charges such as lying to federal agents, the current disposition of the NYC/Denver suspects.
Then McCarthy comes full circle in this post, claiming that if this is the fault of a “law enforcement” mindset in counterterrorism, it may be time to consider a domestic intelligence agency akin to Britain’s MI-5. He also blasts the use of non-coercive interrogation “that the Left insists are just as reliable in a ticking-bomb situation as the CIA’s coercive methods.”
There are several problems with this take on domestic counterterrorism.
The first is that the decision to involve a New York imam in the investigation, a step that compromised the operation and forced investigators to make early arrests before all of the co-conspirators could be identified, was made by an intelligence organization, the NYPD’s Intelligence Division. This is not the cops of the Counterterrorism Bureau, the law enforcement officers that work with the FBI in the Joint Terrorism Task Force, but a separate intelligence department run by a former CIA official who is openly hostile to the Bureau. The same type of folks that McCarthy wants to put in charge of domestic counterterrorism.
Second, McCarthy’s plug for coercive interrogation is the path advocated in the early years of the Bush administration. This has the deleterious effect (beyond statutory bans on torture and constitutional rights prohibiting the same) of making anything you get from the “third degree” inadmissible in court. To get around this you would have to ask courts to generate a doctrine that allows for evidence collected as a result of coercive interrogation to be admitted in spite of clear constitutional violations. I don’t see any way that this does not seep into general law enforcement, where any potential future crime justifies beating information or confessions out of suspects. This is rolling back civil liberties a hundred years or so.
Third, a domestic prevention regime is destined to run into the problems that the British encountered in Northern Ireland. IRA detainees that were subjected to “special interrogation techniques” and held without charge staged a hunger strike to protest being treated as criminals instead of detainees; their jailers had taken away their civilian clothes and made them wear prison uniforms. As former FBI Agent and counterterrorism expert Mike German says in his book, Thinking Like a Terrorist:
The reasons for the hunger strike reveal much about the IRA and about terrorists in general. They didn’t strike over the anti-Catholic discrimination that led to the civil rights movement. They didn’t strike over the RUC’s police abuse or the stationing of British troops in Northern Ireland. They didn’t strike over being arrested without charges, interned, and tortured. They didn’t strike over indefinite detentions or even over Bloody Sunday. They knew all those things helped their cause. They went on hunger strike because the British government was going to make them look like criminals.
If you fear Islamic terrorists, let investigators do their job and find the people who would harm the public. This is a problem that will be solved over decades of diligent investigation, sitting on wiretaps, infiltrating cells, and prosecuting dangerous people. Distorting the domestic criminal justice system out of hysteria over potential attacks will make martyrs out of detainees and torture victims and encourage a broader spectrum of people to violence.
Bagram, Habeas, and the Rule of Law
Andrew C. McCarthy has an article up at National Review criticizing a recent decision by Obama administration officials to improve the detention procedures in Bagram, Afghanistan.
McCarthy calls the decision an example of pandering to a “despotic” judiciary that is imposing its will on a war that should be run by the political branches. McCarthy’s essay is factually misleading, ignores the history of wartime detention in counterterrorism and counterinsurgency, and encourages the President to ignore national security decisions coming out of the federal courts.
More details after the jump.
He Is the Very Model of a Modern Right-Wing Foreign Policy Thinker
Jim Lobe points us to the thoughts of Andrew McCarthy, a fellow at the Foundation for the Defense of Democracies, on Barack Obama’s reticence to urge other people to spill their blood in Iran. A few choice bits below:
“The fact is that, as a man of the hard Left, Obama is more comfortable with a totalitarian Islamic regime than he would be with a free Iranian society.”- “The divergences between radical Islam and radical Leftism are much overrated — ‘equal rights’ and ‘social justice’ are always more rally-cry propaganda than real goals for totalitarians, and hatred of certain groups is always a feature of their societies.”
- “It would have been political suicide to issue a statement supportive of the mullahs, so Obama’s instinct was to do the next best thing: to say nothing supportive of the freedom fighters.”
- “It’s a mistake to perceive this as ‘weakness’ in Obama. It would have been weakness for him to flit over to the freedom fighters’ side the minute it seemed politically expedient. He hasn’t done that, and he won’t. Obama has a preferred outcome here, one that is more in line with his worldview, and it is not victory for the freedom fighters. He is hanging as tough as political pragmatism allows, and by doing so he is making his preferred outcome more likely. That’s not weakness, it’s strength — and strength of the sort that ought to frighten us.”
As Lobe notes, this prompted a rare “that’s over the line” type response from National Review editor Rich Lowry, but McCarthy is having none of it. Instead, McCarthy says that by no means were his earlier remarks out of bounds, and argues that Obama is going to transform the United States into the sort of country that the Islamic Republic will be fond of.
That’s the sort of calm, reasoned debate we’ve come to expect from the establishment Right. I’m trying to think, which conservative thinker does this sort of thing finds its lineage in? Burke? Kirk? Carl Schmitt? It’s tough to say.
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