Friday, January 29, 2010

This administration's feckless policies on national security

President Obama can sound all tough on national security, but what is important is what he does, not what he says. They still seem to regard the war against us as criminal actions, not a dangerous threat by terrorists who share the same murderous ideology. Obama could invite to his State of the Union to sit with his wife the police officers who brought down Hassan in the midst of his rampage at Fort Hood, but he couldn't bring himself to mention the murders in his speech. And his Pentagon issued a report that ignored Hassan's Islamic beliefs that led him to murder the soldiers at Fort Hood.

Obama might have backed down on trying KSM in New York, but he hasn't backed down on the approach to give these 9/11 terrorists civilian trials despite the fact that KSM was ready to plead guilty and be executed. Obama gave the mastermind of 9/11 a reprieve that the guy hadn't sought himself and now insists that a civilian court is the optimal place to try someone who plotted abroad to kill as many Americans as possible. It still is an unbelievable concept. Note that he also slid over this topic in his speech on Wednesday night.

Charles Krauthammer summarizes
Obama and Holder's totally empty preparations to fight the battles against those who are planning to kill Americans as was revealed by their handling of the Christmas Day bomber.
The real scandal surrounding the failed Christmas Day airline bombing was not the fact that a terrorist got on a plane -- that can happen to any administration, as it surely did to the Bush administration -- but what happened afterward when Umar Farouk Abdulmutallab was captured and came under the full control of the U.S. government.

After 50 minutes of questioning him, the Obama administration chose, reflexively and mindlessly, to give the chatty terrorist the right to remain silent. Which he immediately did, undoubtedly denying us crucial information about al-Qaeda in Yemen, which had trained, armed and dispatched him.

We have since learned that the decision to Mirandize Abdulmutallab had been made without the knowledge of or consultation with (1) the secretary of defense, (2) the secretary of homeland security, (3) the director of the FBI, (4) the director of the National Counterterrorism Center or (5) the director of national intelligence (DNI).

The Justice Department acted not just unilaterally but unaccountably. Obama's own DNI said that Abdulmutallab should have been interrogated by the HIG, the administration's new High-Value Detainee Interrogation Group.

Perhaps you hadn't heard the term. Well, in the very first week of his presidency, Obama abolished by executive order the Bush-Cheney interrogation procedures and pledged to study a substitute mechanism. In August, the administration announced the establishment of the HIG, housed in the FBI but overseen by the National Security Council.

Where was it during the Abdulmutallab case? Not available, admitted National Intelligence Director Dennis Blair, because it had been conceived for use only abroad. Had not one person in this vast administration of highly nuanced sophisticates considered the possibility of a terror attack on American soil?

It gets worse. Blair later had to explain that the HIG was not deployed because it does not yet exist. After a year! I suppose this administration was so busy deploying scores of the country's best lawyerly minds on finding the most rapid way to release Gitmo miscreants that it could not be bothered to establish a single operational HIG team to interrogate at-large miscreants with actionable intelligence that might save American lives.
If Obama really was determined to fight the war on terror, he would not have, with proud self-grandiosity, ended the CIA interrogations of terrorist suspects without putting in place a substitute procedure. He could have kept the Bush-era procedures in place until his replacement procedures were prepared, but that would have denied him the symbolism of signing such an executive order as soon as he took office. And with the treatment of Abdulmutallab reveals how absolutely feckless the administration's entire approach has been.

It is time for Congress to step in. The WSJ explains what Congress could do.
pecifically, the Members can pass a law that strips the federal courts of jurisdiction over such unlawful enemy combatants as Abdulmutallab and KSM.

Under Article III of the Constitution, federal judges are only authorized to hear "Cases or Controversies" as provided by Congress through federal laws or as identified in the Constitution. If the Administration is going to insist on treating the likes of KSM as ordinary criminal defendants, it would be clarifying if Congress voted on a bill laying down new limits to these laws.

In 2006, Congress passed and President Bush signed the Military Commissions Act, working within the Constitutional guidance of the Supreme Court's Hamdan decision. The law painstakingly defines who is an "unlawful enemy combatant" and establishes a deliberate legal framework for prosecuting these war criminals.

Even though President Obama declared that "We are at war against al Qaeda" after the Abdulmutallab security review, he has unilaterally thrown out the military commissions system, at least in some cases. If Congress doesn't like that decision, its only constitutional recourse may be to try to take away the President's favored alternative for a specific class of defendants.

This would not impinge on the President's war powers since he still has the right to name enemy combatants. But Congress also has the right to determine the jurisdiction of civilian courts. Even Attorney General Eric Holder testified recently that civilian trials are not required for terrorists under either the Constitution or current federal law.
Such a law wouldn't get through the Congress we have now. Pelosi would never let it through the House. And if it got through the House, it would probably die in the Senate. Even if the law was passed, Obama would veto such a law. But the debate over the issue would be illuminating. On such a fundamental issue, it would be clarifying to see where our politicians stand on the question of how to try enemy combatants.
Mr. Obama might not sign a bill that stripped the federal courts of jurisdiction over terrorists. But such a debate and vote would certainly be educational—in effect, a referendum on whether civilian courts should be opened to an al Qaeda operative who tried to blow up a plane over Detroit or planned attacks that killed 2,972 Americans.

It would put both Republicans and Democrats on record on questions like whether future Abdulmutallabs have the right to remain silent. Or whether civilian courts are a venue that can protect intelligence sources and methods. Or even whether the $216 million that the New York Police Department estimates it will have to spend for each year of security at KSM's Manhattan trial could be put to more productive uses.

Above all, it is a vote that could save innocent American lives.

2 comments:

Rick Caird said...

I am not so sure SCOTUS would accede to having is power to hear cases restricted. In the case of the military tribunals under Boumediene v. Bush, SCOTUS ignored the Congressional restriction on what they could hear. I believe Souter wrote a very lame one page saying SCOTUS was looking at a different part of the Constitution when they heard the case.

LarryD said...

Well if Congress won't debate it, then the people should just debate it with out Congress being involved. Then it can be a campaign issue in November.