Crimes Against Liberty (55 page)

Whether Obama’s primary motive was to embarrass the Bush administration or to attempt to further prove to terrorists he would take a softer approach toward them, the net effect of the disclosures was to subject the United States to yet further bashing from foreign and domestic detractors and to enhance terrorists’ intelligence on us. The notion that this reckless gesture would earn us good will from Islamic extremists—especially in view of bin Laden’s redoubled resolve upon any display of our weakness—is pathetically absurd. As Hayden and Mukasey wrote, “It seems unlikely that the people who beheaded Nicholas Berg and Daniel Pearl, and have tortured and slain other American captives, are likely to be shamed into giving up violence by the news that the U.S. will no longer interrupt the sleep cycle of captured terrorists even to help elicit intelligence that could save the lives of its citizens.”
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“MY DUTY IS TO EXAMINE THE FACTS AND TO FOLLOW THE LAW”

The administration was seriously considering prosecuting Bush-era CIA operatives for administering enhanced interrogation techniques as well as Bush officials for their legal opinions approving them. But as they released the “torture memos,” Obama and Attorney General Eric Holder said they wouldn’t prosecute the CIA officials, as long as they were acting according to the legal advice they were given.
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A few days later, White House chief of staff Rahm Emanuel indicated that “those who devised the policies” also “should not be prosecuted.”

But Obama’s left hand must not have known what his right hand was doing, for the
New York Times
reported that White House aides “did not rule out legal sanctions for the Bush lawyers who developed the legal basis for the use of the techniques.” Indeed, when AP’s Jennifer Loven put the question directly to Obama, he would not rule out the possibility of prosecuting those who “formulated those legal decisions,” and he passed the buck to Holder.
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He proclaimed, “With respect to those who formulated those legal decisions, I would say that this is going to be more of a decision for the attorney general within the parameters of various laws, and I don’t want to prejudge that. I think that there are a host of very complicated issues involved there.”
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A few months later, Holder threw yet another curveball, announcing he would appoint a prosecutor, John H. Durham, to investigate CIA interrogators and contractors over nearly a dozen alleged interrogation abuses. Holder said, “As attorney general, my duty is to examine the facts and to follow the law.”
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Holder maintained his decision to reconsider prosecution of the CIA interrogators and operatives was not a reversal of the administration’s position against prosecuting those interrogators who followed guidelines written by their superiors. He insisted he was basing his decision to open the investigation on troubling abuse allegations from a CIA inspector general’s report. The only problem was that this report was five years old, and congressional leaders had been aware of it for years. Moreover, professional prosecutors had already investigated the allegations and declined (per “declination memos”) to prosecute all but one of the cases—and that one resulted in an acquittal.

Obama pretended he had nothing to do with this decision as well, a decision that reportedly provoked CIA director Leon Panetta to consider resigning.
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Given the political nature of this White House, however, many didn’t believe the attorney general operated with the autonomy the two were implying. Seven former CIA directors, from both Democratic and Republican administrations, wrote Obama a letter urging him to heed his own promise to look forward, not backward. They expressed concern that Holder’s decision would “seriously damage the willingness of intelligence officers to take risks to protect the country.” Furthermore, they argued, “Attorney General Holder’s decision to re-open the criminal investigation creates an atmosphere of continuous jeopardy for those whose cases the Department of Justice had previously declined to prosecute.” They added, “Those men and women who undertake difficult intelligence assignments in the aftermath of an attack such as September 11 must believe there is some permanence in the legal rules that govern their actions.”
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What’s more, Holder did not open the investigation based on any alleged flaw in the work of the professional prosecutors who had already refused the cases, nor had any newly discovered evidence emerged.
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What had changed was that this Justice Department likely had political motivations to reopen the case. Former federal prosecutor Andy McCarthy called Holder’s probe “a nakedly political, banana republic-style criminalizing of policy differences and political rivalry.”

McCarthy theorized that Holder’s reversal might have to do with the administration’s bent toward transnationalism—“a doctrine of post-sovereign globalism in which America is seen as owing its principal allegiance to the international legal order rather than to our own Constitution and national interests.” McCarthy cited Obama’s appointment of Yale Law School dean Harold Koh—“the country’s leading proponent of transnationalism”—as the State Department’s legal adviser. Holder had hinted to the German press he would consider cooperating with efforts by foreign or international tribunals to prosecute U.S. officials who carried out the Bush-era post-9/11 counterterrorism policies. “Obviously,” said Holder, “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.”

When you “put it all together,” said McCarthy, transnationalists in the United States and other countries “have been ardent supporters of prosecutions against American officials” who carried out the Bush counterterrorism policies that protected this nation after 9/11. While Obama and Holder may not want to risk the political fallout from directly prosecuting these people—despite Obama’s adamant advocacy for such during the campaign and the hard Left’s pressure to hold him to his promise—they have a way out of this dilemma, said McCarthy. The Justice Department will continue investigating and churning up “new disclosures,” which can be used by detainees’ lawyers to press the UN and European authorities to file charges. Then, if these international and foreign authorities issue formal requests to the administration for evidence, “Holder will piously announce that the ‘rule of law’ requires him to cooperate with these ‘lawful requests’ from ‘appropriately created courts.’ Finally, the international and/or foreign courts will file criminal charges against American officials.”
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Whether or not this scenario plays out, careful observers understand McCarthy has accurately pegged where Obama and Holder’s sympathies lie.

Six months later, House Democrats tried to sneak a provision into the intelligence authorization bill to criminalize the use of certain interrogation tactics. After the plot was exposed largely through McCarthy’s efforts, however, Democrats pulled the entire bill.
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In his next extravagant gesture to atone for Bush’s supposed sins, Obama issued an edict to transfer KSM and others to New York to stand trial in our civilian courts without any consideration of the costs and security implications, and without consulting New York officials on the matter. (The Bloomberg administration later placed the price for security operations for the trials at more than $200 million a year). Aside from the enormous expense and security problems, legal experts warn that in the trial, prosecutors will be forced to reveal valuable U.S. intelligence concerning KSM’s relationships with fellow al Qaeda members. This will inform terrorist groups which of their plans have been compromised, and will also give them further insight into our intelligence gathering processes. Amidst popular outrage and bipartisan opposition in Congress, the administration backed off, but did not definitively renounce, its plan for a KSM trial in New York. And while some administration officials have also softened their insistence on a civilian trial, Holder remains adamantly opposed to convening a military tribunal.
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Obama’s plan to close Gitmo was similarly impulsive, compulsive, and was formulated without fully considering the costs, consequences, or complications, and without any plan for relocating the prisoners. As a symbol of Bush-era policies, not to mention all the chest-thumping Obama had engaged in about closing it, Gitmo had to be shut down. He asked Congress for $80 million to close the facility by early 2010. But just as with so many other policy initiatives, Obama had no plan to present to Congress. Details are not his strong suit; only pre-written speeches.

And once again he ran into opposition from Congress, which initially wouldn’t agree to have any of the 240 prisoners relocated in U.S. prisons. But that prohibition risked sparking resistance from European nations, which might refuse to accept any prisoners on their soil if the U.S. banned any from its own prisons. Objections from both sides of the aisle were also beginning to resurface against closing Gitmo at all. Democratic senator James Webb remarked, “We spent hundreds of millions of dollars building an appropriate facility with security precautions on Guantanamo to try these cases. I do not believe they should be tried in the United States.”
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But as usual, Obama was not to be denied. Just a month after he had made the precipitous decision to give KSM a civilian trial in New York, he announced his plan in December to purchase the Thomson Correctional Center in northwestern Illinois and transfer some of the prisoners there. Illinois Democratic senator Dick Durbin strongly supported the move, even claiming it would be good for the local job market. Durbin said, “We have an opportunity to bring thousands of good-paying jobs to Illinois where we need them the most.”
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Tennessee Republican senator Lamar Alexander, by contrast, declared, “I have yet to hear one good reason why moving these terrorists from off our shores right into the heart of our country makes us safer.”
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But liberals don’t need reasons or evidence; they just need their good intentions.

Eventually, however, the relocation problems forced Obama to admit he couldn’t close Gitmo by the end of the year—another broken campaign promise over which we should rejoice.

“THE PUBLIC IS VERY, VERY SAFE”

Obama’s ill-conceived plan to close Gitmo and the disastrous consequences it could bring were brought into full relief when news broke of the Christmas Day “underwear bombing” attempt on a Northwest Airlines flight approaching Detroit.
ABC News
reported that two of the jihadist leaders behind the failed attack were released Gitmo prisoners, which was hardly an eye-opener—it’s not as though there’s any such thing as a moderate jihadist. Indeed, we learned a month later from Congressman Mark Kirk, a veteran of the war in Afghanistan, that “all of the major leaders of the Taliban in the south of Afghanistan are former Gitmo releasees—all of them.”
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Additionally, the
Times of London
reported that at least a dozen former Gitmo prisoners had rejoined al Qaeda to fight in Yemen.
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Democratic senator Dianne Feinstein estimated seventy-four Gitmo detainees “have gone back into the fight.”
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Then again, this might not have been as offensive to some as the fact that four released Chinese Uighurs were sent to the island paradise of Bermuda at considerable U.S. taxpayer expense.

It turns out Homeland Security secretary Janet Napolitano was just as clueless in the aftermath of the Christmas Day bombing attempt as she had been in announcing new terms for our politically correct lexicon. Ignoring what the
New York Daily News
called “the glaring mistakes that allowed a Nigerian bomber onto a U.S.-bound plane,” Napolitano claimed security functioned “like clockwork” and that the “system worked” to foil the attack. “The public is very, very safe,” she insisted, with a deer in the headlights expression. This was despite the authorities’ ignoring a warning from the terrorist’s father that his son might be plotting an attack, and the screening flaws that permitted the bomber to board the plane with his weapon.

Dismissing the administration’s fantastic rationalizations, Republican congressman Pete King told CBS’s
Face the Nation
what had really happened: “The fact is the system did not work. He got to the one-yard line.” Indeed, the plot almost killed 289 people that day. Making matters worse, instead of treating Umar Farouk Abdulmutallab like the enemy combatant he was, the administration allowed the Christmas bomber to lawyer up after only fifty minutes of interrogation, which guaranteed, many believe, we would extract no further information from him. Only after the fortuitously failed Times Square bombing plot in May did Attorney General Holder finally announce he wanted to work with Congress on possible limitations on constitutional rights afforded to terrorism suspects—even for U.S. citizens—to make sure law enforcement agents had the “necessary flexibility” to gather information.
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