Post-American Presidency (31 page)

PROSECUTING AMERICA’S DEFENDERS

On August 24, 2009, Attorney General Eric Holder appointed John Durham as a federal prosecutor to investigate CIA officers who might have abused suspected terrorists. With a fine grasp of understatement, Holder conceded: “I fully realize that my decision to commence this preliminary review will be controversial.” But that wasn’t going to stop him: “As attorney general, my duty is to examine the facts and to follow the law. In this case, given all of the information currently available, it is clear to me that this review is the only responsible course of action for me to take.”
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Why?

The Washington Post
reported that in appointing this prosecutor, Holder “shook off warnings from President Obama to avoid becoming mired in past controversies.” The article went on to note the “respect that Obama says he maintains for the role of an independent attorney general.”
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But insiders and those close to the administration knew that Holder was executing a policy Obama had long wanted.

Nonetheless, this decision was so politically charged—and so radical in the specter it provided of the U.S. government potentially accusing itself of and confessing to war crimes—that it was hard to believe that Obama left it to Holder, much less dissented from it. Obama would not take the heat for his egregious and enormously hostile policy toward America. Holder was the fall guy for Obama.

Alarmed by how this move cast enemies of the United States in the role of victims and demonized law enforcement, handing a potentially overwhelming propaganda victory to Islamic jihadists worldwide, seven former CIA directors tried to stop the Obama administration from opening investigations on CIA agents who tried to get information out of jihad terrorists. The former CIA chiefs said that “further investigations would demoralize current CIA officers and might also lead allied intelligence services to suspend or scale back cooperation with the United States because the judicial probes could disclose joint operations and activities.”
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No doubt.

And as foreign governments moved also to prosecute Bush administration officials, Obama did nothing—leading John Bolton to point out that while Obama’s prosecution plan may have been “smart politics within the Democratic Party,” it risked “grave long-term damage to the United States. Ironically, it could also come back to bite future Obama administration alumni, including the president, for their current policies in Iraq, Afghanistan and elsewhere.”

Bolton also noted that “morale at the CIA is at record lows.” No surprise there. Holder even opened the door for Obama administration cooperation with a foreign trial of Bush officials: “Obviously, we would look at any request that would come from a court in any country and see how and whether we should comply with it.” Remarked Bolton: “This is deeply troubling. Obama appears to be following the John Ehrlichman approach, letting the U.S. lawyers ‘twist slowly, slowly in the wind.’”

The people twisting in the wind to whom Bolton was referring were the Bush administration lawyers who wrote legal opinion memos to the effect that waterboarding and similar interrogation procedures did not constitute “torture” as defined by international law. The Obama administration initiated prosecutions of John Yoo and Jay Bybee, who wrote the “torture memos,” as trial balloons in a cynically calculated effort to intimidate the entire cadre of ex-Bush administration people into silence on a host of issues—by threatening the low men on the totem pole of Bush officials who were linked to Guantánamo. This effort didn’t get far: Yoo and Bybee were cleared by the Justice Department’s Office of Professional Responsibility (OPR) in January 2010.
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But the fact that the attempt to prosecute them was made was disquieting enough.

When the Obama camp began this initiative, former vice president Dick Cheney had had enough, and went public with his fight. “One of the things I find disturbing about this recent disclosure,” he explained when Obama released so-called “torture memos” in April 2009, “is they put out the legal memos but they didn’t put out the memos that show the success of the effort. There are reports that show specifically what we gained as a result of this activity.… I have now formally asked that they be declassified now.… They are not telling the whole story.… If you’re going to have this debate, let’s have an honest debate.”
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But Obama wasn’t interested in honest debate. That was never his goal. Bolton explained the point of all such prosecutions: “The real aim is to intimidate U.S. officials into refraining from making hard but necessary decisions to protect our national security.”
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GOING AFTER THE SEALS

But the post-American president wasn’t chastened. In November 2009 three Navy SEALs captured Ahmed Hashim Abed, the mastermind of the killing and horrible mutilation of Americans in Fallujah, Iraq, in 2004. But instead of being hailed as heroes, the SEALs faced court-martial—because Abed emerged, according to Rowan Scarborough of Fox News, with a bloody lip.
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A high-placed military source said that the SEALs were so angry about these court-martial proceedings, they were talking about not taking any more prisoners. And who could blame them? So the internationalist Obama managed in one fell swoop not only to demoralize the SEALs, but to make Americans that much less safe.

Even worse, the military source said that the prosecution of the SEALs was a cause dear to the White House, which pursued it relentlessly as payback for an earlier action taken by the SEALs: killing the Somali jihadist pirates who held hostage Capt. Richard Phillips of the
Maersk Alabama
in April 2009. Obama, ever the internationalist, had set the rules of engagement in such a way as to preclude killing the pirates: a shot could be fired only if Phillips seemed to be in imminent danger of death. The SEALs were on site for thirty-eight hours and had several chances to take out the pirates, but were held back. Finally, the on-site commander determined that Phillips was indeed in danger of death, and ordered the SEALs to fire.

According to a retired military intelligence officer who called in to
Rush Limbaugh with the information, Obama was privately furious, although publicly he claimed that he ordered the shot in order to gain public support. But he did not forget the incident, and the prosecution of the SEALs was payback.
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There was no way to verify this information, but there was also no doubt that it was plausible, particularly given Obama’s other actions and habits of mind.

And as we have seen, in August 2009 Secretary of State Clinton said that it was a matter of “great regret” that the United States did not accept the authority of the International Criminal Court (ICC)—which dearly wanted to try American soldiers for war crimes.
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It could happen.

Obama seemed preoccupied with—and angry about—the treatment of jihadi terrorists, and was going after those who put protecting Americans first. The hypocrisy of the administration was devastating.

KSM TO NEW YORK

Not long after that, Holder and Obama found a way both to discredit and weaken America at the same time.

In a stunning act of sedition and capitulation to Islamic jihad, the Obama administration announced in November 2009 that it intended to bring the masterminds of the shocking invasion of America on September 11, 2001, into a New York courtroom. Obama was going to try in a U.S. court the Muslim masterminds of the most brutal attack on American soil in modern history—joining what historian Bat Ye’or has termed “over a millennium of jihad wars, land expropriations, enslavements, and humiliations of the conquered non-Muslim populations on three continents.”

Obama was determined to prosecute the September 11 act of war as a law enforcement issue. And so our wartime enemy would face a
civilian trial in New York City. Congressman Peter King (R-NY) said “it may be the worst decision by a U.S. president in history.” Conservative activist David Horowitz agreed with King: “It sends a signal to terrorists everywhere to attack civilians.”

There is a United States Supreme Court holding from 1942 regarding six German Nazi saboteurs who had been apprehended on the eastern seaboard during World War II. As they were not military personnel, they asked to be given civilian trials, rather than trials before military panels. The Supreme Court ruled against them, noting that as spies and saboteurs they were enemy combatants, and would thus go before military tribunals under that system.

End of discussion.

That should be ample authority to establish a jurisdictional basis to try Khalid Sheikh Mohammed and his fellow jihadis in a military tribunal. The holding in the Nazi saboteur case noted that Congress had declared war on Germany, but other statutory and historical references would apply very easily to a finding that Mohammed and his henchmen were “unlawful combatants,” and therefore subject to trial by military tribunals if so directed by the president.
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The precedent is clear. But Holder and Obama, of course, had other priorities.

Consider that the greatest act of war, the most devastating attack on American soil in U.S. history, would be turned over to civilian courts with the enemy mastermind given the constitutional rights of an American citizen.

In a civilian court in New York, the mass-murdering jihadis would not have been put on trial; Bush, Cheney, Rumsfeld, and the military would have been the real defendants in what would certainly have turned out to have been a show trial. It would have been a veritable jihad circus, in which Khalid Sheikh Mohammed could have propagandized the whole world in a courtroom in the shadows of the once
towering, majestic symbol of American fiscal greatness and superiority, the World Trade Center.

The terrorists had confessed and would have pled guilty in a military tribunal had the Obama administration not announced that a civilian trial would be held in New York.

The consequences could have been even more devastating. Andrew McCarthy, who prosecuted the jihadists who bombed the World Trade Center in 1993, recalled that one of them told another: “Tell them, ‘I don’t know. I’m not talking to you. Bring my lawyer.’ Never talk to them. Not a word. ‘My lawyer’—that’s it! That’s what’s so beautiful about America.”

As defendants in a civilian trial, the 9/11 masterminds would be granted access to material from American intelligence services about jihad activity in the United States. They would be granted a look at everything the United States knows about Al-Qaeda and its allied groups, and would be able to pass this information on to active jihadists.

Said McCarthy: “They will get a year or more to sift through our national defense secrets.… In the military system, we could have denied them access to classified information, forcing them to accept military lawyers with security clearances who could see such intelligence but not share it with our enemies. In civilian court, the Supreme Court has held an accused has an absolute right to conduct his own defense. If KSM asserts that right—as he tried to do in the military commission—he will have a strong argument that we must surrender relevant, top-secret information directly to him. And we know that indicted terrorists share what they learn with their confederates on the outside.”
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How much intelligence would be compromised when these jihad barbarians are all lawyered up? They should be tried as war criminals at Gitmo—in a military court.

Sarah Palin called it an atrocious decision: “The trial will afford Mohammed the opportunity to grandstand and make use of his time in front of the world media to rally his disgusting terrorist cohorts. It will also be an insult to the victims of 9/11, as Mohammed will no doubt use the opportunity to spew his hateful rhetoric in the same neighborhood in which he ruthlessly cut down the lives of so many Americans.” Palin pointed out that “the mastermind of the 9/11 attacks may walk away from this trial without receiving just punishment because of a ‘hung jury’ or from any variety of courtroom technicalities.”

And the ex-Muslim freedom fighter Nonie Darwish, author of an exposé of Sharia,
Cruel and Usual Punishment
, explained what Obama’s decision was really all about: “The purpose of the trial is to embarrass the Bush administration and America itself and to give Arabs a golden opportunity to indulge in propaganda to convince the West with falsehoods regarding the root causes of Islamic terrorism; mainly that it is the consequence of US foreign policy, old grievances and America’s support of Israel.”

This happened because Obama wanted to propagate the idea that Khalid Sheikh Mohammed and others were tortured at Guantánamo on George W. Bush’s watch. Who would have been on trial? KSM, the devout Muslim murderer, or Bush and those who “waterboarded”? Too bad that the thousands of people whose lives were saved in LA can’t hop a red-eye to New York and testify. According to a Justice Department memo dated May 30, 2005, waterboarding “led to the discovery of a KSM plot, the ‘Second Wave,’ ‘to use East Asian operatives to crash a hijacked airliner into’ a building in Los Angeles.”
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That building was the Liberty Tower, the tallest building in the West.

“There is also no question,” Obama claimed in May 2009, “that Guantánamo set back the moral authority that is America’s strongest currency in the world.”
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I disagree. For America to prosecute those who kept this country safe from people like Khalid Sheikh Mohammed, as Obama seems to intend to do, sets back our moral authority. America turning her back on the jihad against women, Christian, Jews, and nonbelievers sets back America’s moral authority.

Obama sweated the treatment of Khalid Sheikh Mohammed while setting up our boys and girls in Afghanistan. We were experiencing the highest number of deaths in the war against the global jihad month after month over there because, in Obama’s words, “I’m not interested in victory.”
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