National Security

President Obama and Attorney General Holder have been criticized by many on the Right for their zeal for putting terror suspects into the civil court system. They have been similarly challenged about the quickness with which they want Miranda rights read to captured terror suspects. In ordinary criminal law cases, suspects are “Mirandized” when they are in custodial detention (usually a formal arrest) before they are questioned. A failure to comply with this rule may make a confession elicited under those circumstances inadmissible in court and similarly taint evidence that is discovered as a result of the non-Mirandized confession. While the rule originally was merely a judicially-created remedy to deter police misconduct, it has been elevated to a constitutional requirement, though one of uncertain parentage.

However, there are exceptions to the Miranda requirement. For one thing, it does not apply to merely investigative questions when there is no custodial detention of the suspect. For another, there is a “public safety” exception that is based on the doctrine of necessity raised by exigent circumstances. For example, police can inquire of a person arrested shortly after the commission of a crime where a gun is that the police believe was used in the crime. Presumably, that public safety exception loses its force fairly rapidly, but that may depend, as so many of these determinations do, on the severity of the exigency. Finally, there is always the tactic of questioning someone without Miranda rights, if the prosecutors are not going to use the confession in court and have independent evidence that they can use to convict the defendant. The latter, especially, is a good basis for the questioning of terror suspects without Mirandizing them first. That’s even easier if the suspects are held offshore, at Guantanamo, perhaps.

The criticism of Holder rests on the fact that the need for questioning terror suspects is not so much to obtain information to convict them in court (there is usually enough of that), but to gain intelligence about abettors or other plots. That is also why the demand by liberals to use law enforcement tactics on terror suspects rather than intelligence-gathering approaches to interrogations is off the mark, because the former operate within the wrong paradigm. For intelligence-gathering, the questioning initially must be quick and emphatic, though there may also be a need for longer-term interrogation. The information is not so much to prove the suspect’s guilt as it is to corroborate existing intelligence and intelligence operations or to open new possibilities for future action. In the meantime, interrogators don’t want the suspect to “lawyer up.” Though both ordinary criminals and less experienced terrorists often waive their Miranda rights, more experienced terrorists do not. One of the first responses Khalid Sheikh Mohammed is supposed to have made after being turned over to the Americans is that he wanted to go to New York and see a lawyer.

The administration has staunchly defended its approach as more consistent with civil liberties of the terrorists. No word from them about security for civil liberties of Americans threatened by terrorists. Since the arrest of the Times Square bomber, however, the administration is suddenly singing a new tune. There are proposals to go to Congress and get some statutory support for an expanded version of the “public safety” exception to Miranda. While the President could probably rely on his inherent executive powers to achieve the same thing, getting Congressional approval may be a politically and judicially smart move. Politically, because it provides the President with some cover against criticism from the academic Left that is more concerned about protecting the formal rights of captured terrorists than the rights of actual and potential victims of terror. Judicially, because it gives that veneer of bi-cameralism and political collaboration that might sway Justice Kennedy if an expanded interpretation of the public safety exception were challenged in court.

One of the (politically astute, as it turned out) criticisms of the Bush administration was that they hurt their case on detention and trial of unlawful enemy combatants by not getting formal support from Congress early on. That failure made the Court more willing to strike down portions of it, improperly, in my view, and certainly contrary to any honest reading of precedent. That is a matter for another discussion, though one is puzzled how the Bush administration could have acted as relatively quickly as it did if they had had to obtain Congressional approval earlier.

LTC Richard Peters wonders what has caused President Obama and his assistants to wake up. Peters believes that the fall-out from the failed Times Square bombing has given the administration information that, frankly, has scared them into reality.
“First, the administration has plainly realized that the terror danger is much higher than it believed one week ago.
“Second, it means that Shahzad really has been talking — almost certainly tipping us that there are more America-bound terror trainees out there (or already here) and letting us fit together important pieces of the intelligence puzzle.
“Third, the White House obviously fears more terror attacks sooner rather than later.”

Peters sees this as a hopeful sign that even this administration is capable of learning when the political stakes for its survival are high enough: “Since Inauguration Day, reality denial has been an integral part of this administration’s culture. But reality’s a persistent intruder. For reasons we don’t yet know in detail, the failed Times Square bombing appears to have brought the White House at least part way to its senses. Some revelation about the terrorist threat has shocked the president. It’s about time.” Indeed. We’ll see if it was soon enough, and what else may be going to happen. I’m seeing more and more speculations about terrorist sleepers. This could get interesting.

But then one wonders whether their hearts are really in the project. Maybe some habits just die hard, but Eric Holder just has a very difficult time calling the terror problem what it is, an outgrowth of a radical interpretation of Islam that resonates with a minority of Muslims. Hot Air’s Allahpundit notes, ”The best he can do is a clumsy, heavily qualified admission that while Awlawki’s version of Islam is wrong, ‘people who espouse a radical version of Islam have had an ability to have an impact on people like Mr. Shahzad.’” Allahpundit also wonders about Holder’s evaluation of Awlawki’s version of Islam: “Incidentally, it’s worth reading the NYT’s recent profile of Awlaki in light of Holder’s answer; note the detail about his 53-disc boxed sets on the life of Mohammed. For a guy who’s evidently so misguided about what the Koran says, he sure has spent a lot of time studying it.” Perhaps Holder cannot bring himself to state certain obvious facts because his prior law firm, and various people he has appointed to policy-making positions in the Justice Department have been instrumental in defending these folks. There’s a certain political delicacy to admitting you’ve been defending radical Islamic terrorists.

I have previously posted about the increased presence of Iranian agents in Central and South America. Iran has caused mischief in the region in the past, including bombings of Jewish and Israeli facilities in Buenos Aires. They operate out of the Paraguay/Brazil/Argentina border region which is home to a fair number of Muslims. But they have also established increasingly warm relations with Hugo Chavez in Venezuela and Chavez want-to-be’s in Ecuador, Bolivia, Nicaragua, and (had the Obama administration’s fecklessness prevailed) Honduras. Iran is also establishing connections, it is feared, with Mexican drug gangs, as they creep closer to the U.S. border. That alone should make securing the border a top national security matter. Things are escalating as the Iran-Venezuela-Russia axis is ramping up operations by introducing more dangerous elements than small groups of agents. Instead, paramilitary groups are joining the agents. “U.S. intelligence officials say Qods operatives are developing networks of terrorists in the region who could be called to attack the United States in the event of a conflict over Iran’s nuclear program….The report links Qods force operatives and the larger IRGC to some of the deadliest terrorist attacks of the past 30 years: the bombing of the U.S. Embassy in Beirut in 1983, the bombing of a Jewish center in Argentina in 1994, the 1996 Khobar Towers bombing in Saudi Arabia and many insurgent attacks in Iraq since 2003.”

Meanwhile, the much-ballyhooed sanctions against Iran after years of the mullahs ignoring the West, are being diluted even before they are in place.

The State of Arizona has adopted a law that seeks to address problems the state has suffered at least in part as a result of lax enforcement of immigration laws by the federal government. The state has been a particular target of violence from Mexican gangs and from others who are in the U.S. illegally. The enactment of the law has precipitated much outrage from interest groups whose monetary or ideological bread is buttered by supporting illegal immigration and open borders.

First, a quick disclaimer. As an immigrant, I both sympathize with and object to illegal immigrants. Though I was a child when we came to the United States from Germany, I was old enough to remember the process through which we had to go, the anxiety about getting the green card, and the excitement when it came. So, I understand the desire of the illegal immigrants to come to the U.S. Most of them are here to work hard. Those who pack up and leave their homes to travel to an alien country are usually highly motivated and self-reliant, though those characteristics may be less pronounced when the country is your neighbor and there is already a very large community of your compatriots to accept you. On the other hand, having had to “get in line,” and knowing others who would like to get a green card to come to the U.S. and who are also waiting in that line, I get very annoyed with “party crashers.” Accepting those people ahead of those who follow the rules is fundamentally unfair, and I grit my teeth at the effrontery of those who see such law breakers as poor victims of a system they have chosen, in colloquial parlance, to “flip off.”

Based on a quick perusal, the Arizona law (text here) does not sound particularly draconian. In fact, I don’t see much there at all. A few sections are worth mentioning. The main operative section people seem to be broadly aware of is Section 2.B. That part permits law enforcement to investigate the immigration status of people under reasonable suspicion of being in the U.S. illegally. The governor has said that the factors for “reasonable suspicion” will be developed further. But the power to investigate seems to be triggered only if there is otherwise a “lawful contact” between the person and the state. Moreover, the requirement of investigation is simply that a “reasonable effort” be made to determine the immigration status, and race or national origin may not be the sole grounds for enforcing the law. Section 2.B. also declares that a valid driver’s license or similar American-issues identification creates a presumption that the person is not an illegal alien. Similarly, Section 4.E. allows officers to stop someone for reasonable suspicion of a traffic violation “and” (not “or”) violation of the new law. That also sounds like the suspicion of illegally being in the U.S. by itself cannot be the cause of the stop.

Other significant subsections that relate to immigration status in Section 2 are “E” and “G” (which are intended to prevent cities from setting themselves up as “sanctuary cities” in the way quite a few California cities have done). Finally, Section 2.K. contains yet another admonition that everything done under Section 2 must comport with the requirements of the U.S. and Arizona constitutions, which, presumably, would mean there could be no actions against individuals based merely on racial profiling.

I find Section 3 to be more interesting. That section prohibits the mere failure to carry an alien registration document, if that also would violate federal law. Presumably that section would not come into play, unless some lawful contact occurred, as defined under Section 2, so that, again, there would be no stopping people on a fishing expedition because of their skin color. Among other matters, Section 3.C. prohibits suspension or commutation of a sentence imposed for violating this provision. Section 3.D. allows the state to charge the defendant jail costs plus $500 for conviction under this section. That section sounds like the most direct effort to make immigration policy.

Section 6.A.5 allows state officers to arrest people whom they suspect to have committed a public offense that might make them removable from the U.S., which arrest, however, must be based on probable cause.

Sections 5, 7, and 8 address employment of illegal aliens, with the first of those targeting employment of day laborers, such as those who hang around the local Home Depot.

What constitutional problems are there? First, the main focus of criticism has been on the supposed ability just to stop people because they have the wrong skin color. Perhaps I am not reading this right, but it appears to me that the state can only get into the immigration status if the person initiates the contact, such as by trying to get a driver’s license, or if there is first an otherwise lawful stop by law enforcement. As noted above, Section 2.B. specifically prohibits the state from relying solely on race or national origin to implement the law. So, I do not see any particular problem under search-and-seizure principles derived from the Fourth Amendment.

Second, the state law might be unconstitutional under principles of dual federalism, either because federal immigration statutes preempt the state law or because the federal power over immigration in Article I, Section 8 of the Constitution is exclusive in the federal government and not shared concurrently with the states. I think that these are the strongest arguments against the state law, but there are problems with them. For one thing, since the Arizona law emphasizes cooperation with the federal government and strongly relies on federal standards, the state law does not thwart operation of federal policy. Quite the contrary. For another, under the federal statutes it isn’t clear that the federal government is intending to prevent such cooperative supplemental state legislation. No one has raised objections against state criminal laws that target human smuggling, for example.

That leaves the argument that the Constitution itself intends to reserve power over immigration exclusively to the federal government and to exclude the states from that field, regardless of what federal statutes do or do not say. That is an interesting proposition and has some precedent to back it up. The Supreme Court, by 6-3 in Hines v. Davidowitz (1941), among other arguments emphasized the exclusivity of the federal interest over immigration in invalidating a state law that required registration of legally admitted aliens. The Arizona law here is different in that it is not intended to set up a separate system of state registration of aliens but to help enforce public safety, a more traditional state concern. Still, this is the best argument against the law, especially the ”carry an alien registration document” section that is quite similar to the Pennsylvania requirement struck down in Hines.

There is another interesting wrinkle, though. Under Article IV, Section 4, of the Constitution, the federal government is obligated to protect each state against invasion. Arizona is currently the target of much illegal alien trafficking and crime. If Arizona argues that the increasing violence along its border constitutes an invasion, the federal government has abdicated its constitutional responsibility. Every political entity has the right to defend itself against a foreign invader. Arizona can claim that, as a sovereign state, the right of self-defense devolves onto it when the Union has breached the constitutional covenant. The Arizona law would be constitutional, then, regardless of other issues, at least until the federal government takes steps adequately to stem the flow of illegal aliens into the state.

As for discrimination in violation of the equal protection clause, it is unlikely that the targeting of illegal aliens as such will trigger strict scrutiny from the courts. Under the intermediate scrutiny test applied in Plyler v. Doe in 1982, the Arizona law directly and substantially furthers the state’s important interest in public safety. The fact that this law likely will be applied disproportionately against Mexican nationals by itself is not enough for an equal protection violation, as long as the standards for “reasonable suspicion” use race-neutral criteria, such as lack of driver’s license or other American-issue identification combined that are specifically approved in Section 2.B. as creating a presumption that the person is not an illegal alien. Disparate impact on an ethnic group is not enough for a constitutional violation. An invidious purpose is required, and the point of the law is to deal with a public safety issue, not just to harass Mexicans because of their national origin. Overall, the law is very carefully drafted and, indeed, a rather minimal intrusion on top of whatever other, more intrusive, “lawful contact” occurs between government officials and private individuals.

Additional commentary from Hot Air and Charles Krauthammer.

UPDATE: Professor Glenn Reynolds (Instapundit) and Professor Ann Althouse weigh in, especially on the “invasion” issue.

Are foxes guarding the henhouse, or at least the detention facilities for suspected terrorists and other unlawful enemy combatants? Middle and high-level Justice Department political appointees in charge of policies about treatment of terrorists previously defended such individuals. This might explain some of the mis-steps and boneheaded decisions of the politicized Obama/Holder Justice Department regarding interrogations, detentions, and trials of unlawful enemy combatants.

I have posted before about the close connection between Holder (through his law firm) and the enthusiastic defense of such terrorists. From what I have seen and heard about (the former Georgetown law professor) Neal Katyal, he probably would make decisions in the Justice Department conscientiously and with fidelity to his position. I cannot say that about others, as I don’t know. But one is certainly entitled to deep suspicions.

Liberals frequently argue that one truly cannot put aside one’s beliefs and attitudes, even if those are unconscious (e.g., “unconscious racism”) and one has never displayed any overt bias based on them. It cannot, then, be possible to put aside the political and ideological beliefs that have led one to represent terrorists intent on killing Americans and to make such representation a significant part of one’s professional identity, as these lawyers have. As the article asks, can we trust these lawyers to protect the interests of Americans over those of terrorists? How will their prior livelihood in advocacy groups affect the way they balance the various considerations? After all, this is not just some lawyer who goes to work in the morning defending this or that minor criminal at the local superior court. Even as to those, there is likely to develop over time considerable sympathy for these criminals as against the concern for crime victims or for society as a whole. The article makes the correct point that this staffing of the Justice Department is analogous to hiring a lawyer whose professional identity is tied to representing organized crime figures and putting him in charge of the Justice Department’s (anti-) organized crime division.

At the very least, there is the appearance of a conflict of interest for such former “human rights lawyers.” That conflict may appear to be the same for lawyers for corporations, unions, environmentalists, or other interest groups, but there is a difference. While people might squawk somewhat about the business, labor, or environmentalist background of other Justice Department lawyers, those are not as suspect. These private interests are not seeking to kill Americans and to destroy Western culture by violence. The terrorists are.

In this segment of Uncommon Knowledge, Peter Robinson of the Hoover Institution interviews University of California, Berkeley, law professor and visiting scholar at the American Enterprise Institute, John Yoo. Professor Yoo is the author most recently of Crisis and Command, a history of presidential power in the U.S. Professor Yoo, while working as Deputy Assistant Attorney General in the Office of Legal Counsel during the George W. Bush administration, authored some memoranda about the legality and constitutionality of various described enhanced interrogation techniques and about executive power. Those memos came to be defamed in the media and among various pro-detainee political and legal interest groups as the “torture memos.” Having read those memos, I can say that their legal analysis on the narrow torture and enhanced interrogation issues are rhetorically dry, legally tight, factually careful, and, in their conclusions, unremarkable. Only some of his assertions of inherent executive authority to act for the security of the nation might have planted the executive flag a bit too far into constitutional terra incognita.

Here is Part 1. The two discuss the nature of executive power under the Constitution as essentially open, in contrast to the textually more defined powers of Congress.

Here is Part 2. The focus is on the decisions by the Bush administration to attack Afghanistan and Iraq. Professor Yoo declares his belief that the President could have launched both attacks under his own authority, but that he was politically wise to obtain broad authorizations to use military force (and, having read them both, I can state that they were, in fact, broad). In response to the question why there was no declaration of war, Yoo simply states that those aren’t done any more, and that it makes no difference. I am not sure I agree with that, as a declaration of war might automatically trigger what are traditionally held to be the President’s full war powers. An authorization, however, brings with it only those powers needed to carry it out. To be sure, those powers, too, might be quite broad.

Here is Part 3. The discussion centers on enhanced interrogation and whether waterboarding constitutes torture under the legal definition. While he discusses the statute’s ambiguous text and the dearth of precedent, I do not think that Yoo presents the strongest possible analysis here, even after prodding by Robinson.

Here is Part 4. They discuss the civil lawsuit brought by convicted terrorist Jose Padilla against Yoo. The case is on appeal to the Ninth Circuit, and the Obama administration has asked that court to order the case against Yoo dismissed. While he discusses the policy behind the doctrine of qualified immunity, Yoo again does not do as strong a job as he might explaining the difference between cases where lawyers are defending clients against the government’s efforts to incarcerate them and cases where lawyers are using the law as a sword to go after government officials seeking to protect the national security. Yoo does describe this propensity of terrorists to use the law and the American legal system (and legal systems around the world fostered by “human rights” elites) to impede American policy and undermine American national security. It is commonly referred to nowadays as “lawfare,” and I have seen publications voice pride in attorneys, often from blue chip firms, who wage this on behalf of the U.S.’s enemies against government officials.

Here is Part 5. Yoo addresses questions about President Obama’s and Attorney General Holder’s decision to try Khalid Sheikh Mohammed and five other Guantanamo detainees in federal civil court in New York. Yoo disapproves of the decision and points out the detriment to national security from trying KSM in that forum. They also touch on the military commission system, which Yoo defends. While I agree with the legal argument regarding the military commissions and with the argument that there will be fewer evidentiary and national security problems with military trials, I worry that those commissions may be institutionally so politically intimidated by now that they will render more lenient judgments against accused terrorists than the federal civil courts would.

A couple of riveting dispatches from Afghanistan by Michael Yon: Patterns and Adam Ray. Check his website and drop him some monetary help for his self-financed war reporting.

Interesting things happening in Pakistan. Check the links. The problem is that nothing is ever what it seems, especially with the ISI. Some of the explanations that suggest that this is a play by Pakistan to re-assert influence over internal Afghani affairs make sense. As I posted previously, the Mullah Baradar who was caught earlier was said to be particularly open to a political solution with Karzai in Kabul. That would have made him useful to President Obama, who has been talking about bringing some of the “moderate” Taliban into the government. If so, the various captures by the Pakistanis may be to prod a negotiated settlement, though they should probably go after the head guy to do that (if he is alive, and if they know where he is).

Or, it may be the opposite. Prevent the Americans from getting that negotiated settlement. Obama has already signalled to all the world that this is probably the last American push in Afghanistan. The U.S. will be out in 2-3 years. Wait that out, and reassert Pakistani military/spy agency influence in Afghanistan when the U.S. draws down.

UPDATE: The latter theory may be gaining legs.

American and Pakistani intelligence operatives have captured the Taliban’s second-in-command in Pakistan. On one level, this is a noteworthy catch, as it may lead Americans closer to Mullah Omar, the Taliban head. It also signifies at least a degree of cooperation, for now, between the U.S. and the dodgy allies in the Pakistani intelligence apparatus. He is described as the most amenable of the Taliban to talking with the Afghani government. Maybe that’s why they brought him in, to “persuade” him to cooperate more productively.

On the other hand, the Americans have not taken control here. That might have to do with concerns about Pakistani sovereignty.  But it might also have to do with the interrogation policies of the administration. Better to let the Pakistanis retain custody and do the heavy lifting, unconstrained by Miranda considerations. That, of course, also raises questions about the effectiveness of the questioning of the Christmas Day Crotchbomber and about the wisdom of the Holder Justice Department’s decision to Mirandize the guy.

It might also have to do with the Supreme Court’s foolish Boumediene decision in 2008 regarding the courts’ use of the writ of habeas corpus to free non-Americans captured abroad and held outside the sovereign territory of the U.S. As many, including yours truly, have argued, such decisions just make it more likely that a serious administration will find ways to make the process more opaque by having foreign entities do the dirty work, with minimal American involvement in the process. Of course, that just makes harsh interrogations more likely and the collection of intelligence useful for the U.S. more difficult. The cost is raised, and the benefit is lowered. Not a good trade-off.

In similar vein, the Obama administration is shunning captures in favor of targeted killings of terrorists. Of course, this risks losing potentially valuable intelligence, as some officials grumble. And it was entirely predictable as, once more, many, including yours truly, have said for a long time. What can one expect when the courts and the transnational “human rights” elite interject themselves into these shadowy national security and anti-terrorism decisions? And when the administration’s reflexive leftism that urges them to kowtow to those same transnational elites crashes into the conservative reality of the facts of life? Closing Gitmo and CIA facilities abroad has deprived the U.S. of a necessary link in effective intelligence gathering that requires secure detention facilities for some period of interrogation.

Last Friday was the 201st anniversary of President Abraham Lincoln’s birthday. Technically, we no longer have a national holiday for his or George Washington’s birthday on February 22. Instead, we have a certain Monday set aside for President’s Day, a more generic and vague designation that has the advantage of producing a regular three-day weekend pleasing to the ski industry. Actual named official holidays are reserved for what must be more important individuals in American history who must have contributed far more to the very existence of the United States. People such as Martin Luther King and, in California, Cesar Chavez. If you do not think that they are worthier of recognition than Washington and Lincoln, rest assured that no, I don’t think so, either. But those are politically-correct holidays designed for various identity groups and don’t involve the DWEMs (Dead White European Males) so despised among “right-thinking” elites. Rather, they involve Non-White Non-European Males, Dead or otherwise, a group whose comparatively far greater worthiness for official recognition than the DWEMs is exceeded only by their female counterparts.

Anyway, I digress. With polls showing that the bloom is off the Obama rose, to put it mildly, one recalls that not long ago it was common for the media pundits and journalists, academicians from many disciplines, and other besotted disciples of the one who proclaimed the cryptic but resonant message that “We are the change that we have been waiting for,” to compare their champion to Abraham Lincoln. Both from Illinois, both lawyers, both served in Congress, both…had two arms, legs, eyes and ears? This before The One had done anything other than declare that the Guantanamo detention center would be closed, enhanced interrogation techniques would be emotionally labelled “torture” and discontinued, and officials from the previous administration at upper levels might be investigated. For that, presumably, he was nominated for the Nobel Peace Prize but 10 days after taking office, an act of insane lack of judgment and proportion as bizarre as the comparisons to Lincoln.

So, I thought that it might be fitting to compare the national security policies of Mr. Obama with those of Honest Abe. By the way, that nickname for the old railsplitter should have been a dead give-away that Lincoln was not like an off-the-rack Chicago pol. Now, Mr. Obama famously has not succeeded in the three promises he made. But that is not due to lack of trying. Instead, Mr. Obama’s failures are due, in order, to the conservative reality of the facts of life regarding detention of terrorists, to the reaction of the American public to the administration’s botched interrogation of the Christmas Day Crotchbomber plot, and the schooling that Mr. Obama got when he unwisely decided to tangle with former Vice-President Dick Cheney on the matter of national security.

It is fruitful, then, in Mr. Lincoln’s memory to connect to some of his robust assertions of executive power in the national interest. This is Lincoln’s war message to Congress on July 4, 1861. For an even stronger and more unabashed defense of real politik based on presidential discretion in the pursuit of national security, there is Lincoln’s letter to Erastus Corning and other Copperhead Democrats in 1863. Even the possibility of the incumbent in the White House or his Attorney General, recruited from a law firm that has made it a significant part of its image to the American bar to represent Guantanamo detainees, writing such a letter seems preposterous and fantastical.

It now looks like the Obama administration is furiously backpedaling from its decision to spend $200 million to give 9/11 mastermind and self-proclaimed Daniel Pearl executioner Khalid Sheikh Mohammed a forum for propaganda and martyrdom. That forum in a public trial in a federal court house would also have been an exquisitely useful propaganda and recruiting tool for al Qaeda. While the decision is officially only “under review,” administration sources agree that New York is out. Other sites are still under review, though the administration’s lack of specificity suggests that they are not holding many cards. After all, any other community would raise similar objections, though I suppose a temporary federal court housed in a former justice court trailer in Adelanto might be out of the way enough to avoid much public outcry.

The apparent decision is part of a broader retreat by the administration on moving detainees from Guantanamo to the U.S.

Still, the idea that a special federal court could be set up temporarily on an army base and guarded by the military has some support. There are problems, though. The new facility would cost quite a bit of money and take considerable time to build. Moreover, if a military court in Guantanamo Bay is a recruiting tool for al Qaeda, as the Left asserts, a federalcourt held on a military base may make a difference to the transnational legal elite. The excitable would-be suicide bomber, on the other hand, enticed by al Qaeda’s use of the cosmetic similarities of the proceedings as a recruitment tool, would find those jurisdictional differences just a bit too abstract.

Andrew McCarthy, a former federal prosecutor of the “blind sheikh” involved in the first World Trade Center bombing in 1993, declares that there will be no prosecution of KSM and other plotters in the federal courts. Rather, the case will be returned to the military commissions and prosecuted at the $40 million facility for that purpose at Guantanamo Bay.

Despite the President’s previous loud support for such trials in civilian courts, the decision will be hung around Attorney General Holder’s neck. The President is increasingly abandoned by his erstwhile political supporters in this matter, such as New York Senator Chuckie Schumer. His long string of blunders and defeats in national security matters, including his politically harmful contests with former Vice-President Dick Cheney, and the administration’s recent embarrassments in the questioning (or not) of the crotchbomber have made a retreat on this issue more palatable than enduring one of the many downsides from a KSM trial in New York.

Over the past year-and-a-half I have posted on several occasions about the “torture memos.” The Left has been going after the Bush administration lawyers who drafted various memos about interrogations of terrorist suspects and other unlawful enemy combatant detainees in the wake of the 9/11 attacks. They want criminal prosecutions, civil disbarment proceedings, impeachments. I have read those memos, including the most controversial ones by Professor John Yoo. As I posted in a lengthy article in 2008, there was nothing extraordinary or reckless in the interpretation of torture law. The only chancy analysis involved some rather bold assertions of executive power over war and national security. However, even those were not technically unfounded, though perhaps impolitic. Certainly, they were neither criminal nor unprofessional.

The matter eventually was referred to the Justice Department. An initial report suggested wrongdoing that at least required referral to state bar associations. The report was criticized by former high level Bush administration officials, including former attorney general Michael Mukasey. After further investigation by the Office of Professional Responsibility, the Justice Department has cleared the lawyers of ethical/malpractice allegations. This has happened much to the chagrin of Newsweek. As represented by the magazine, the Justice Department was critical of the legal analysis. I think that either the article is wrong or the Justice Department is overstating the case. The memos’ torture analysis is very technical and sober. I have heard lots of sniping but not seen any refutation of the memos’ analysis of the torture statute’s text or of the precedents that interpret its meaning.

Some seriously unwelcome news. According to new intelligence analysis, al Qaeda has substantially repaired its terror network, as shown by the combination of the attack at Fort Hood, the killing of CIA officers by a homicide bomber, and the failed crotchbomb attempt. This revived capability goes from Yemen to Indonesia to the Uruguay/Paraguay/Argentina/Brazil border regions (about which I’ve written before, and from which the attacks by Hizb’Ullah on the Israeli embassy and the Jewish Community Center in Buenos Aires proceeded). State-sponsored terror groups such as Hizb’Ullah are also spreading their cancer into places closer to the U.S. through assistance from Hugo Chavez, Nicaragua’s Daniel Ortega, and the Castro brothers with Iran and various local terror groups such as the narco-terrorist FARC in Colombia. That is why thwarting the planned take-over of Honduras by the ousted Chavezisto, Manuel Zelaya, was so important, and why the pro-Zelaya reaction of the Obama administration was so strategically bone-headed (though ideologically predictable).

Even more alarming, according to this article, is that the most dangerous place for the West is Great Britain. The al Qaeda presence there is so well-developed, with numerous agents and relatively unobstructed planning and recruiting ability, that American reports regard the UK as both the source and the target of likely terror attacks later this year.

Then there is this: “An increase in the theft and smuggling of dangerous substances means that terrorists are more likely to be able to use weapons such as a dirty bomb, according to the report.”

Meanwhile, more and more evidence emerges that terror suspects released from Guantanamo have returned to al Qaeda. The U.S. government estimates that 20% have done so, while private researchers put the proportion at closer to 40%. Intelligence services believe that such released detainees constitute most of the leadership of al Qaeda in the Af-Pak region. It is obvious by now that, far from detaining too many innocent goat-herds and peasants, as the transnational terrorist-rights league would have it, the Bush administration (as well as the current one) have released too many threats to national security. And it won’t do to say that the former detainees only became al Qaeda leaders because of their captivity at Gitmo. If one is an innocent peasant just hankering to get back to one’s herd and family, that is what one would do upon release. Moreover, no self-respecting terror group would make some hapless rube who was mistakenly captured into a leader just because of a stay at an American detention camp.

Since taking office, President Obama has made news with his collection of appointees. There were the tax troubles of several would-be and actual nominees, culminating in the selection of Turbo Tax Tim Geithner as Treasury Secretary. Subsequently there was the revelation that one of his advisers, “green jobs czar” Van Jones, was a self-proclaimed Communist from a few years ago and a “Truther,” someone who is convinced that President George W. Bush was part of a cabal that carried out the 9/11 attacks.

Now comes the tale of Mr. Obama’s choice, nine months into his administration, to be head of the Transportation Safety Agency, Erroll Southers. Senator Jim DeMint (R-SC) has put a hold on the nomination. Seems like the inimitable Mr. Southers, on whose expertise regarding threats our safety depends, and on whose ability to balance security with judgment our liberty depends, has a few, how should one describe them, peculiar incidents in his background.

For one thing, he considers “Christian identity-oriented” groups and anti-abortion protesters as the true threats to the country against which the TSA and the government must guard. Then there is his considered judgment that it is the U.S.’s relationship with, and support for, Israel and France, that is producing the terrorist threats Americans face from al Qaeda. His assessment of the gravity of the risk from terrorism is that it has parity with global warming, the economy, and education, though he conceded that national security matters likely will get priority over the others. No doubt he will be part of the bureaucratic cadre whose mindset was so well expressed by Homeland Security Secretary Janet Incompetano’s memorable phrase after the narrowly-averted crotchbomber attack, “The system worked.”

But he does have experience investigating suspects. He apparently accessed confidential criminal records, in possible violation of law, to investigate his then-estranged wife’s new boyfriend. Better still, he has proved his mettle dealing with Congress, potentially misleading the Senate in a sworn statement about that matter.

It is also suspected that he supports unionization of the TSA workers. Just what is needed for that group, a further ossification of procedures and bureaucratization of personnel to come up, post hoc, with measures that do much to inconvenience the public and create frustration and resentment, yet do little to deal with the actual security threat, jihadists (not Christian anti-abortionists). Every day I just feel so much safer with this bunch in charge of national security. Or, maybe not.

President Obama on Tuesday delivered himself of these words: “We will close Guantanamo prison, which has damaged our national security interests and has become a tremendous recruiting tool for al-Qaeda. In fact, that was an explicit rationale for the formation of al-Qaeda in the Arabian Peninsula.”

Let us ignore the approaching passing of the timeline for the closing of the Guantanamo detention center that was trumpeted with fanfare by candidate Obama and made into a written order with great flourish immediately on his inauguration. Let us also ignore the President’s decision to suspend repatriation to Yemen of Yemenis detained at Guantanamo, a decision that will further delay the closure. Let us also ignore that any decision to place the Guantanamo detainees in the U.S. will run into the current Congressional ban on such transfers and the time required to prepare adequate facilities to house those detainees. Is Obama saying that he will keep the Guantanamo detention facility open even though he knows that such a course will endanger national security? Is he admitting to consciously endangering national security? Is he accusing Congress of doing so?

I hope that the President is simply attempting to mislead his listeners and does not give his own words any credence. If the President truly believes the implications of these words in their natural meaning, he is either a very dangerous man who needs to be impeached for intentionally endangering the nation, or he is even more foolish and inexperienced than his critics have made him out to be. Let us assume that there is a clearly identifiable group or affiliation of groups that constitutes “al Qaeda.” If the President is telling us that the closure of Guantanamo will eliminate an explicit basis for the existence of al Qaeda on the Arabian peninsula, he is woefully ignorant of how and why Islamist terrorists become what they are.

The alternative interpretation of his remarks, pushed by some liberals, is that Obama is just saying that Guantanamo is “a” reason for the existence of al Qaeda, not the only reason and not “the” cause. Further, liberals argue, Obama is only saying that al Qaeda uses Guantanamo as “a” (presumably successful) recruitment tool for other terrorists, which recruitment endangers our national security. Taking the liberal defense on its own terms, if Guantanamo is just “a” reason, then even taking away that reason will not cause al Qaeda to disappear, as other reasons for its success continue to exist. Therefore, closure of Guantanamo will do nothing to increase our safety. Obama’s premise is meaningless, and his conclusion does not follow.

The same argument would apply to the charge that Guantanamo endangers national security simply because al Qaeda uses it as “an” effective recruitment tool. Moreover, one should ask just how effective such a tool is, and how much of a difference it makes. Al Qaeda was recruiting followers and plotting long before Guantanamo housed a single terrorist. Bin Laden was using what he portrayed as American cowardice and weakness (as in Somalia in 1992 and 1993) and the American government’s fecklessness in dealing with the First World Trade Center bombers as ordinary criminals and in pursuing terrorists in a random and lackadaisical fashion. Bin Laden was also using the stationing of American forces on Saudi soil in the 1990s and the hyped-up grievances of fundamentalist Islam and of Arab nationalism against the West. He even used visions of establishing a renewed caliphate on lands claimed by Islam over the past 1400 years. These are the kinds of emotional buttons that cause true believers, religious or ideological, to blow themselves up, to chop off the heads of captives, and intentionally to kill innocent civilians in the hope of achieving immediate entry into a sensual paradise. Blow yourself up or get yourself killed because some other terrorists end up at Guantanamo? Not so much.

The inanity of Obama’s argument is illustrated quite nicely by considering this: Is there any evidence that, during World War II, FDR (or anyone else, for that matter) made the argument that Japanese Kamikaze pilots were driven to their suicide missions against the Americans because some of their brethren were held in American prisoner-of-war camps? Or even that these suicide bombings were caused because people of Japanese descent in the U.S. were placed in relocation camps? I’m not aware of even an academic making that argument. Instead, the Kamikaze were propelled, so to speak, by a quasi-religious devotion to their emperor and a fanatic belief in their duty to their cause.

But let us assume that everything we know about the motivations of true believers is false, and let us assume that bin Laden was lying when he said what his successful recruitment tools were well before Guantanamo was an issue, tools that remain available today. Even assuming that Guantanamo is a successful recruiting tool for al Qaeda, why would Obama believe for a minute that any alternative detention center would be a less successful tool?

Obama surely is not planning to release the detainees. He has said so. If he did, that would be the greatest recruitment tool for al Qaeda yet, reinforcing what bin Laden has said about American weakness and fecklessness. Arab culture, especially, respects strength. Act strong, and they may hate you; but they will still respect you and act accordingly. Act weak, and they despise and disrespect you. And they will act accordingly, with even greater determination and confidence in their success.

If Obama plans to house these detainees in the U.S., popular pressure will demand that it will be in some supermax-type facility. Whatever may be the eventual outcome of ACLU suits on behalf of terrorists about the conditions of their confinement, to the ignorant outside observer these prisons can be made to appear far worse than Guantanamo. Conditions at Guantanamo are far looser and more relaxed than they would be in a windowless, highly regimented supermax-type facility in the U.S. If prison conditions are the key to al Qaeda recruitment, the terrorists will have banner years as they contrast unfavorably the conditions at a concrete supermax facility in a dreary Illinois landscape with what will be pictured as the tropical gentility of their former abode at Guantanamo. Not even considering the other unwelcome results of closing Guantanamo detention center, will Obama and his liberal supporters then rail about how the prison facilities threaten national security because they will be used as al Qaeda propaganda tools?

I don’t think so, either. This has nothing to do with terrible conditions of confinement. By all reasonable accounts (incuding those of the detainees who insist on staying there rather than being returned, say, to Algeria or China), the conditions are better than tolerable. Nor does this have anything to do with protecting national security. Obama’s inclinations towards that end have always been suspect. His actions of alternately threatening intelligence operatives with investigation or prosecution for seeking information through interrogation and then blaming them when they do not act aggressively on information (the case of the crotchbomber), as well as initially wanting to release pictures of interrogations, in fact disclosing methods of interrogation, and numerous other dodgy steps do not allay those suspicions.

This is, pure and simple, an attempt to gain personal approval among that increasingly dangerous layer of a transnational elite that sees itself as “citizens of the world,” rather than of a country, and that revels in its shared values, many of which run deeply counter to democratic politics, republican institutions, and classic liberal values of individualism. This is the narrow social stratum with which Obama indentifies as a result of his elite prep school and post-secondary education, his work with elite foundations and government, his (brief) association with an elite law firm and his longer connection with an elite university. He has often been presented by his admirers as “president of the world,” an image he has helped to promote with his rhetoric and his Obama World Apology Tours. His wife’s campaign remarks that reflected such a disdain for the United States and his portrayal of himself as healer of the planet revealed in his own speeches adds to the image.

It is his standing among this transnational elite, particularly in the U.S. and Europe, that he hopes to burnish by closing Guantanamo, nothing more. If it takes deception and mischaracterization, so be it. If his remarks falsely boost a malevolent image of the U.S. among those who have no good inclinations towards the U.S. no matter what, that is a cost he is happily willing to impose on Americans. The closing of Guantanamo and his personal quest to do so, has to be seen within that framework, which is about the individual glory and standing of Obama, and to which a detached consideration of national security is simply irrelevant.

Enjoying the Christmas holidays, I have tried to avoid letting the news of the outside world intrude on the spirit of the season. But with reality once again dawning, the unpleasantness of which man is so regrettably capable can no longer be kept at a comfortable distance. One of the events that I let make only a hazy impression on me at the time is the attempt by an al Qaeda-trained jihadist to blow up the airplane on which he was travelling. The terrorist plot failed because the chemical detonator malfunctioned and turned the explosive device into an incendiary device.

Meanwhile, Janet “from another planet” Napolitano, the Homeland Security head, initially claimed that the system worked, even though the guy apparently waltzed through security without a passport and with explosives undetected, and even though he was a person known to U.S. intelligence because his father reported him a couple of months ago. She later changed her story that the system worked after the incident. Even that is partially untrue, as it was the passengers that subdued the guy, not police or an air marshall. I doubt that the Obama administration would be as accommodating of sheer incompetence if a private company whose security measures failed to prevent, say, a chemical leak, then said that the system worked as intended when they eventually clean up the mess.

Al Qaeda will keep probing airline security systems and procedures, and such terrorist attacks will continue. According to British reports, there are 25 British Muslims training with the terrorist group in Yemen, where the “crotch bomber” also trained. They are supposedly training for terrorist acts using airplanes. They are expected to return to Britain, where they will be under constant surveillance. Oh, really? 25 of them will be watched constantly?

The President once more is acting in an oddly detached manner. In a belated press conference, he said,

“Here’s what we know so far: On Christmas Day, Northwest Airlines Flight 253 was en route from Amsterdam, Netherlands, to Detroit. As the plane made its final approach to Detroit Metropolitan Airport, a passenger allegedly tried to ignite an explosive device on his body, setting off a fire.”

What does he mean “allegedly” when a large number of passengers and flight attendants saw the fire, heard the noise, and jumped on him to disable him; when the underwear shows explosive material sown into it; when he admitted that’s what he was doing; and when al Qaedapraises him as one of their own and admits what he was doing? The problem with Obama is that he is in law enforcement mode. The terrorist will be treated as an ordinary criminal, with the presumption of innocence, the concern about not tainting the jury pool for the upcoming criminal trial, and the objective of “solving the crime.” Instead, the Cheney approach would have been the intelligence-gathering approach, with interrogations appropriate to the task, to find out who this guy’s buddies were, whether there was another plot brewing, and the objective of preventing attacks. Call that the war-fighting mode. Both are tools to be used, but one of the concerns about the President, and about Democrats/liberals generally, is that they are incapable of adopting the war-fighting mode. It is alien to their upbringing and disposition and, thus, distasteful. Resort to such an approach might have to be made, but not until a much more massive (and, perhaps, preventable) incident. Rather, let’s adopt only the criminal justice approach and content ourselves just to deal with the aftermath of attacks that do not rise above some yet-to-be-determined level of endemic violence.

Note also the hesitancy to “rush to judgment,” just as what happened in the immediate aftermath of the Fort Hood shootings, and quite unlike his quick condemnation, in absence of the facts, of what he concluded was White-on-Black racism in the case of the Harvard professor and the Cambridge Police Department.

And it didn’t take long for our media to try to humanize the terrorist. Thus, the Washington Post writes about his loneliness and his shyness and ambivalence about women as appears in his on-line musings. The Associated Press joins the hand-wringing. I hardly care about the loneliness and romantic problems of terrorists. It surely won’t do to say that we can help “profile” such people and uncover such plots. That is hardly likely. The government’s track record in such matters is not reassuring, and the administration’s post-hoc law enforcement approach is not designed to prevent attacks. The government’s abject failure to catch the crotch bomber before his attack and the failure to “uncover” Nidal Hasan, the Fort Hood shooter, despite volumes of evidence also do not instill confidence.

What is needed is a change in attitude from the top down. But hoping for change is not enough and, as I noted above, change is not in the cards currently. I am afraid it is just a matter of time before predictable attacks of sufficient magnitude and frequency happen that will finally prompt a change. That change will come, however, at the cost of a lot of Americans killed.

Via Allahpundit at Hot Air comes definitive evidence, courtesy of the liberal Pew polling organization, that former Vice President Dick Cheney has won the debate against President Obama over enhanced interrogation. For the first time since Pew began such polling, a majority of the American public believes that torture is often or sometimes justified. Only 25% of Americans believe it is never justified, which would be those who identify themselves as liberal in other polls (21%) plus a small fraction of independents. These folks are usually called professors. Since carefully controlled and circumscribed enhanced interrogations of the type conducted by the CIA are not torture by definition or in practice, public support for those procedures likely is even higher. This distinction between waterboarding or rude interrogations and real torture is not lost on the American people (or al Qaeda), though it seems not to register with members of, especially, the legal academy.

Support for torture is up by 9% since Obama took office, most of that since he and his administration began the publicized debate with ol’ Vice. All one has to do is watch the two and hear their arguments. In matters of national security, whom would one rather see in charge, Barack Obama or Dick Cheney? For most Americans the choice is clear. It’s one thing to listen to Obama’s feel-good rhetoric when the serious adults are still in charge. It’s quite another when the Candyman is actually in charge. Obama is an inspiring head of state figure. A war chief? Not at all.

More interesting is that support for torture has risen most dramatically among Democrats (+18%) and independents (+9%). This change in attitude parallels an increased public perception that Mr. Obama is not tough enough in foreign relations. Again, most of that change is due to Democrats and Independents souring on the President. Mr. Obama’s apology tours, his softness towards Iran, and his delay in formulating an Afghanistan policy are beginning to cement an impression of the President in the mind of the public.

Perhaps the President’s deflationary polling and the perception of weakness is related to his Afghanistan policy. The timetable for withdrawal of forces announced by the President is seen overwhelmingly negatively by the American public.

While our administration snuggles up to leftist Latin American dictators in joint condemnation of the Honduran government’s decision to deport the Chavez want-to-be president, Senor Zelaya, there is no reaction to the descent of Bolivia into a leftist narco-state. Mary Anastasia O’Grady of The Wall Street Journal writes an informative article about the coca growers leader, current president, Hugo Chavez protegee, and future jefe-for-life, Evo Morales. Morales, like his mentor Chavez and his leftist fellow-thugs-in-chief in Ecuador and Nicaragua, is getting increasingly cozy with Mahmoud Ahmadi-Nejad and the Iranian autocracy. As Hugo Chavez is able to expand his influence in Latin America through his grandiose”Bolivarian revolution” because of what is at the very least benign neglect by the Obama administration, and as Iran is invited to ever-greater presence in the U.S.’s backyard, another foreign policy and national security headache is created for whoever succeeds the current administration.

Senator Lindsay Graham of South Carolina is not on my list of favorite Republicans. His record, on the whole, portrays a distinct lack of principles and of a thought-through intellectual framework. Politicians are politicians, and one cannot expect ideological purity. Nor is ideological purity necessarily good, when the ideological prism by which one can guide one’s analysis turns into an ideological prison that stifles the flexibility that is often needed to address real world problems. There are politicians who can strike just the right balance in substance and tone to avoid appearing too “political.” Graham cannot do that. He exudes a certain smarminess that is offputting, and, fairly or not, makes him appear unprincipled.

That said, he usually votes positions that I favor. More important, on occasion he shines. His cross-examination of Sonia Sotomayor was excellent. The following video is even better. Graham, a former member of the JAG, absolutely dismantles Attorney General Eric Holder’s decision to try Khalid Sheikh Mohammed in the civilian federal court. Holder comes across as ignorant and ill-prepared. At best. Holder, more than any critics, or even Graham himself, demonstrates that there is no legal basis, and certainly no legal necessity, for that decision.

Once upon a time, a Senator lauded military trials as designed under American law as giving Khalid Sheikh Mohammed a fair trial “with all the bells and whistles.” That Senator was Barack Obama, now attempting to distance himself from the removal of KSM to the ordinary federal court. The video of Senator Obama’s comments demonstrates again that the current civilian trial strategy is a solution in search of a problem. Relevant segment at about 1:30.

Conservative commentator and parodist Steven Crowder goes where no journalist has gone before, Guantanamo Bay Naval Base. The commentary starts out looking like a travel documentary, but after a few minutes he gets to the point. It has often been reported that Congressmen and Senators who were skeptical of the conditions and purpose of Guantanamo changed their positions after actually investigating the base. Not coincidentally, President Obama has never visited there, just as he was singularly incurious about Iraq during the campaign even while criticizing the Bush policy there, and just as he has been curiously detached from “his” war in Afghanistan.

Professor Victor Davis Hanson dissects the malign effects of cultural timidity and rampant multicultural “sensitivity” on the very lives of Americans. The latest exhibit of that affliction of, primarily, American Whites to be nice, tolerant, inoffensive, culturally sensitive, and, yes, meek before those who are minorities is the failure to respond appropriately to the many clues to his deadly desires that the Fort Hood terrorist left along the way. That unwillingness to step up and to confront the developing evil is the result of a lifetime of indoctrination and guilt mongering by the Left-elite-controlled civic institutions. Perhaps it is just that people have lost the ability to recognize certain facts as they are, only able to see the world through modern liberalism’s distorted prism, rather than a conscious lack of involvement in a matter that would put them in the uncomfortable position of being judgmental. The cause of that inability is the same.

As I and others have long argued, the mindless multiculturalism that is the dominant current educational and cultural paradigm is eating at societal cohesion. Worse, it is increasingly costing American lives. For the head of the Army, General Casey, when confronted by jihadist terror, to have the immediate reaction that we must be vigilant about diversity is evidence of the lethal political correctness that infests even some elements of the armed forces and under which the ordinary soldiery must labor. Would any other group than Muslims be given such deference? Would soldiers who made the remarks, sent the type of emails, or gave the presentations that Hasan did, but, say, in relation to the KKK be treated with similar non-chalance? Why would the FBI, even while every official (including the President) was admonishing people not to rush to conclusions, almost immediately rush out a statement that there was no evidence of terrorism? Why is there not a similar restraint on rushing to judgment by officials or the media whenever they imagine that something can be pinned on Christians, FOX News, or conservative Americans, especially when, in the great majority of cases the facts show the asserted connection to be non-existent or tenuous? Why, as Mark Steyn enjoys posting, is there such a reluctance to affiliate jihadists with Islam and with radical Islamism? Such linguistic delicacy is notably absent when the accused is a member of some Christian congregation, has a cable TV service that allows him to receive FOX News, or has at some point listened to Rush Limbaugh.

As Victor Davis Hanson points out, “[W]e look for patterns in all cases of individuals’ shooting others on a mass scale. Hasan gave every indication that he was channeling his own personal sense of frustration into a larger Islamic writ against the West — as have some 20 other killers since 9/11 who have shot, stabbed, or run over innocents at malls, airline counters, military facilities, and Jewish-affiliated centers.” The mere fact that Hasan may have had other “issues” does not mean that he was not pushed into this particular action by the teachings of Islam, or at least by his interpretation of those politico-religious teachings. It does not mean that he was not furthering religious (Islamic) goals by his actions.

Hanson again: “[I]f we counted up the number of ‘lone wolf’ incidents and added it to the number of Islamist terrorist plots that have been foiled since 9/11, we would arrive at more than 40 incidents of terrorist killings or efforts to kill on a wide scale. If anyone could find a comparable series of anti-abortion terrorist acts, backlash attacks on Muslims, anti-Semitic attacks perpetrated by non-Muslims, Jewish attacks on Middle Easterners, or radical environmentalist killings, then one could argue that the public was unduly focusing on Islam.” A difficult conclusion to rebut, and an analysis that no amount of politically correct dissembling about what happened at Fort Hood and who perpetrated that deed and why, can undercut.

If the trials of the 1993 World Trade Center bombers and of the “20th 9/11 hijacker,” Zacarias Moussaoui are any indication, the federal court trial wii be a propaganda circus for Khalid Sheikh Mohammed and his co-defendants, abetted by what likely will be ideologically sympathetic lawyers. While at Guantanamolast year, KSM demanded to plead guilty to the military commission, be sentenced to death, and executed. Taking him at his word, and assuming that the government is confident of its evidence, KSM is guilty and will be sentenced to death, anyway. What has he to losebut to turn the trial into a political spectacle that will bolster the morale of al Qaeda supporters and other terrorists and serve as a useful recruiting tool for future jihadists?

I have never understood the liberal argument that keeping detainees at Guantanamo and having terrorists tried by duly constituted military commissions according to formalrules of evidence causes otherwise peaceable and rational Muslims from around the world to flock to the jihadist cause. Jihadists’ reliance on suicide attacks and other terrorist tactics, and their extreme brutality towards captives, does not indicate the presence of particularly rational minds and placid personalities. I would be most surprised that true jihadists, and not the Western liberal reification of such, care one whit about Guantanamo and military commissions, except maybe in a completely different manner from that imagined by the liberal mind. Guantanamo offers amenities that many jihadists can only dream of enjoying in their own countries. The conditions of confinement at Gitmo, and the trial by American military courts trying to prove their bona fides as impartialjudicial tribunals, are far more humane than what those jihadists would find if imprisoned and tried in their own countries for the results of their violent proclivities. After all, if they weren’t fighting the American “crusaders,” they’d be busy killing their fellow Muslims while fighting the Egyptians, the Pakistanis, the Saudis, the Syrians, etc.

If, however, and this is a big “if,” jihadists are at all influenced by the fate of the Guantanamo detainees in the manner that liberals believe, they will be at least equally influenced by fate of their fellows kept in the Metropolitan Detention Center (the harsh conditions of confinement at which already were the subject of an attempted money damage action by one Maher Arar), tried under heavy guard in what will become a fortress-like massive federalcourthouse with the defendants paraded around in prison garb and shackles, and eventually executed or sent to an isolated supermax prison. TheseIslamic holy warriors, as they see themselves, don’t care about the details of American criminal procedure and constitutional law. The visuals for the proposed process are more likely to inflame passions and serve as recruiting tools than anything that would have come out of Guantanamo.

The shift of the trial looks more to have something to do with placating the rabid Left base of the administration and the conference-and-cocktail-party-attending transnational legal and “human rights” elite with which the administration feels such affinity. The morally and economically corrupt United Nations bureaucracy and the kleptocratic elites back home that they represent will approve of this as a sign of American docility in the face of foreign criticism. These elites can engage in such a minuet of stylized moral posturing and be awed by their own importance. The more practical-minded jihadists will be less impressed.

Speaking of a political dimension to this decision. There has already been musing, by myself and others, that this represents a conscious and reprehensible way for the Obama administration to bring to light the details of the difficult decisions the Bush administration had to make about capture, interrogation, detention, and trial of these terrorists and other enemies in the difficult months after 9/11. Despite its veiled threats in the late Spring to go after CIA personnel, the administration does not dare go after Bush administration officials directly, lest Obama, Holder, and company produce a political civil war in this country and seal their electoral fate. Nor will the American public turn against the Bush administration if KSM, his cohorts, and their lawyers make an issue of waterboarding. None of those parties are sympathetic victims and any political spectacle in the courtroom will only remind Americans just what kind of repellent creatures they are. If anything, the Obama administration will come off second-best.

But by opening this up to the sure attempts by the terrorists’ lawyers to make as much of this information public as they can and to turn the proceedings into a political and media trial of U.S. post-9/11 policy and of Bush administration personnel, the Obama administration thinks it can achieve the same result while avoiding political accountability. Then, when the information is released, they will count on the transnational legal Left and their allies in various European judiciaries to “try” various American officials for “human rights abuses” in absentia in kangaroo “trials.” Defending the U.S. against terrorists will, per se, be evidence of such abuses, with the object of weakening American resolve in the future.

That tactic is part of the payoff to keep the increasingly restive loony Left in Obama’s coalition quiescent, a Left that has little to show for its enthusiasm for what they saw as the Community organizer-in-Chief. But it carries some risk. Indeed, the legal and political risks for the administration in this move are considerable. There are so many things that can go wrong, from a physical attack to a legal acquittal to political reaction against disclosure of sensitive evidence that this is more likely to underscore the fecklessness of Democrats on national security matters than to erase doubts. By making this announcement so close to the terrorist attack at Fort Hood, the administration does not instill confidence that its political tonedeafness is not a symptom of a greater incompetence.

Andy McCarthy at “The Corner” on National Review Online agrees and provides further detail about the political dimension of the administration’s decision.

Word has come from the Obama administration that Khalid Sheikh Mohammed and four other Islamic terrorists will be tried in federal court in New York. Predictably, the ACLU and many other left-liberal individuals and organizations have applauded the decision, while many conservatives have denounced it.

I see the decision as highly problematic in a number of ways, but not ultimately as disastrous or threatening. There are several issues here: The evidence to be used at the trial; the security of the facility and any facility to which the terrorists will be transferred later; threats to the prosecutors, witnesses, jurors, and judge; the likelihood of suitable punishment; what to do with any that are found not guilty; the use of the trial by the defendants as a political tool; the use of the proceeding by the administration for self-serving political purposes rather than a means to justice; what kind of precedent is set by the use of this procedure for other cases.

One of the most complex issues is the use of evidence. One problem is that the rules of evidence in federal court are in some instances different from the rules for evidence that can be used in front of the military commissions. Following the 2008 Boumediene decision, lower federal courts are working out constitutional tests for the introduction of evidence in habeas corpus cases and, by implication, for military commissions. However, those cases involve the issue of detention and status as enemy combatants, not the more “criminal” matter of trying such people for the unlawful nature of their conduct. Still there are somewhat more relaxed evidentiary rules under the Military Commissions Act that can be used in the military tribunals, but that cannot be used in the regular civilian courts. Some of the evidence may have been gathered in combat conditions or by foreign governments that do not observe the niceties of American law enforcement. On the plus side, evidence gathered by foreign sources overseas is not subject to constitutional search and seaizure restrictions of the Fourth Amendment. Other evidence that will be used may be the result of waterboarding and other “enhanced interrogation techniques,” some of which procedures will be presented as “torture.” The admission of such evidence is easier in the military commissions than the civil courts. That evidence is likely to be challenged strongly. Some of the evidence may be national security-related. It is possible that such evidence can be turned over to the defendants under various protective restrictions or introduced in court by closing the trial or at least conducting the examination out of the courtroom in camera. However, there are limits to the extent this can be done. Defendants will demand access to records and witnesses some of which ar least will not escape the public eye. The military commissions can better protect against defense abuses of this process.

Keeping all of that in mind, one has to assume for the moment that the administration is well aware of these problems and has selected these defendants for trial because they have plenty of other evidence for a conviction. On the other side, that still may not prevent defendants’ fishing expeditions and demands for more problematic evidence. That is especially so, as the defense attorneys that will flock to defend the terrorists in order to make names for themselves will be especially eager to see these defendants walk and to score ideological points against the United States and, especially, against the Bush administration.

A related problem is whether the lawyers themselves will be security threats. When the suspects for the 1993 World Trade Center bombing were tried in federal district court, Lynne Stewart (one of the attorneys for the “blind sheikh”) conspired to allow the transfer of information from her client to other suspected terrorists> She was convicted and disbarred, though she is appealing the conviction. By the way, information turned over to the attorneys for the defendants in that bombing trial included lists of people the government was watching. Among those listed was Osama bin Laden, who, if he didn’t know it before, was then on notice that he was being watched. There is serious danger that the information that comes out during this process will provide enemy nations and other terrorists with valuable intelligence.

There are also concerns about the security of the detention facility, the courthouse, and any facility to which they will be transferred. That is a legitimate concern. I would think that the government will secure these facilities adequately to keep the terrorists confined, but that does not mean that the facilities might not still be targets for terrorist action. Using the facilities at Guantanamo, including the new but unused courtroom there, would provide security that the federal civilian facilities cannot achieve. That, after all, was the point of using Guantanamo.

Threats to prosecutors, witnesses, jurors, and the judge will be real and concrete issues that would not exist were the proceedings held before a Guantanamo military commission. The identities of these people will be known. They will be likely targets. So, if one is looking at procedural matters and security issues, the military commission process is much preferable, as the administration has admitted in holding some of the Guantanamo detainees to be tried by military commissions there.

While the move of these trials from the military to the civilian system is problematic from the perspective of the presentation of evidence and protection of national security and of the participants, I am not worried that the federal court process will result in less likelihood of conviction or a lesser imposition of punishment. Assuming there are no evidentiary problems (and, as I wrote, there might be), a civilian jury in New York is very unlikely to acquit these defendants, though, depending on the charges, there might be acquittals of some of the defendants on some of the charges. Khalid Sheikh Mohammed will be convicted of the most severe counts. Both the jury and the judge will also seek to show their toughness and sentence him, and perhaps some others, to death. The military commissions, on the other hand, will bend over backwards to avoid harshness. There hasn’t been a death penalty imposed by a military court in almost a half century, though one suspects that KSM would end that streak.

If any of the defendants were acquitted, what to do with them would be a serious problem. One of the perceived advantages of Guantanamo, from the Bush administration’s point of view, was that the base was geographically close for purposes of secure control over the detainees, but also isolated from the general citizenry and, to prevent full application of constitutional rights to these detainees, outside the sovereignty of the U.S. As long as the detainees are at Guantanamo, outside the general territorial sovereignty of the United States, there is a strong argument that they can be kept there pending return to another country. They have no right to enter the U.S. Of course, if they are to be detained there as enemy combatants until the cessation of hostilities, that, too, can be done. But once they are brought into the U.S., they have greater rights before they can be removed to another country. Moreover, if they are to be detained further as simple enemy combatants, not criminals, they might have greater rights to be detained in the U.S. itself rather than returned to Guantanamo. And, if no other country is willing to take them, must they then be released into the U.S.? While there are no one hundred percent clear answers to those questions, the more someone, even an alien, has been given access to the U.S., the greater claim he has to at least some constitutional protections that his lawyer is sure to press.

Allahpundit at Hot Air has a good discussion of these points. He makes the argument that the trial’s outcome, oddly, may be a foregone conclusion. It will be almost impossible to get a fair trial for the terrorists in the commonly-accepted view of that term. Whatever happens in the courtroom, the administration cannot afford politically to let KSM go, so they will find some reason to incarcerate him. One option: Send him to Pakistan for trial about his activities there. But this makes a farce of the administration’s claim that a federal court trial is more consistent with the rule of law, and it makes the trial itself a sham.

In another post, I’m going to address the more political issues from this move.

Many others have expressed their thoughts; Sarah Palin worries about a failure to convict KSM. I disagree with that one. Former federal district court judge and George W. Bush Attorney General Michael Mukasey worries about the danger from the disclosure of evidence and about the September 10 attitude displayed by treating KSM as an ordinary criminal. I think that is part of what Obama is trying to do to placate the Left. Mukasey also worries about the ability to house convicted high-profile terrorists in American prisons without having them become focal points of attention with the chance to do mischief among the prison population. Mukasey: “It would take a whole lot more credulousness than I have available to be optimistic about the outcome of this latest experiment.” Professor John Yoo makes some salient observations about the terrorists’ likely strategy to demand information and tie up the courts by turning this into a political circus. Like Judge Mukasey, he believes that this can provide al Qaeda with extremely useful intelligence and hurt future American intelligence gathering and military operations. I agree with Yoo that these are the biggest dangers.

Via Hot Air, former New York mayor Rudy Giuliani tees off on the Obama administration’s decision.

Andy McCarthy was a federal prosecutor who prosecuted the 1993 World Trade Center bomber. In his book about that bombing, he describes how the terrorists, who hated everything about the United States, loved the criminal justice system. As they planned their attack, they knew how to exploit that system:

“Choosing America as an enemy was not, however, without its advantages.  Amir Abdelgani advised his confederates that, if arrested, ‘Nobody talk until seeing his lawyer.’ 

‘You understand,’ Siddig echoed.  ‘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.’”

In similar vein, when Khalid Sheikh Mohammed was captured in Pakistan and turned over to the Americans, he refused to talk. Rather, his immediate demand is said to have been to take him to New York, as he wanted to talk to his lawyer. Courtesy of Eric Holder and Barack Obama, he has got his wish.

A Senate panel is scheduled to look into the Fort Hood terror attack by lone wolf jihadist Major Hasan. That same panel issued a report and a warning last year about just this type of threat.

“The Senate committee report warned that the Internet was serving as a ‘virtual terrorist training camp,’ and cited that as a contributing factor in the United States becoming more and more susceptible to homegrown extremists….’No longer is the threat just from abroad, as was the case with the attacks of September 11, 2001; the threat is now increasingly from within, from homegrown terrorists who are inspired by violent Islamist ideology to plan and execute attacks where they live,’ it said.”

Questions are also being asked about what was known about Hasan prior to the attack and why warning signs were ignored.

“Neil Livingstone, terrorism analyst and chairman of GlobalOptions, said Hasan was a ‘walking time bomb’ who showed ‘all the signs’ of instability. Livingstone said ‘political correctness’ may have prevented other officials from taking action against him, but that his actions fit the ‘definition’ of terrorism. ‘He was a loner. … He was in contact with radical elements overseas. He was obsessed with his Muslim faith. And I think nothing was done,’ Livingstone told Fox News. ‘I think we have to face up to the fact that this guy was killing innocent people because of his Muslim faith, and we need to say that, and I think that’s going to come out in the hearings and in the trial.’”

Meanwhile, the FBI apparently knew about Hasan’s email contacts with an al Qaeda-connected radical imam in Yemen. The question is whether the FBI communicated with anyone else, especially the CIA and the Army about this, or whether we are back to operating under the failed pre-September 11, 2001, criminal justice approach to terrorists. And that is not all. Evidence is emerging that Hasan had as yet-unspecified connections to other persons the FBI was tracking.

With all this information and the failure of the government to act, the question becomes not just whether Hasan acted alone in this specific attack, but whether, and how many, others like him are there ready to act? Ed Morrissey of Hot Air asks, “As the scope of this failure becomes known, the big question will be this: how many more Hasans do we have, communicating with known terrorists and 9/11 attack suspects?  If counterterrorism officials had this much information about Hasan and still didn’t act, it doesn’t leave any confidence at all that Hasan was just an anomaly.”

Yet some Democrats in the House and the Senate want to eliminate Patriot Act provisions that allow roving wiretap surveillance of “lone wolf” terror suspects (those not affiliated with al Qaeda or other terror groups or networks). Even left-liberal Vermont Sen. Patrick (”Leaky”) Leahy endorses extending such wiretap authority. The Hasan case shows the importance of such actions against “lone wolves” whom the above-noted Senate committee believes to be an increasing threat. The caveat here is that, since Hasan was not a “non-U.S. person,” such wiretap authority would not have extended to him, anyway. But perhaps it would have applied to his conversations with the imam in Yemen.

I have previously written that, based on the torture statutes, case law, and the description of the prescribed method of waterboarding, the procedure does not rise in brutality to the level of torture. However, that conclusion can change, depending on why, when, and how waterboarding is done. Has music performed the same role as waterboarding in efforts to deal with al Qaeda?

There is an effort by various musicians to find out whether their works were played to soften up detainees for interrogation until 2003. In this publicity-seeking grandstanding demand by mostly has-been acts six years after the fact, the musicians characterize the government’s action as torture. I entirely believe that the government played music, repeatedly and loudly, to destabilize the detainees’ psychological and emotional equilibrium. The U.S. did that during the Bush (I) administration to compel former Panamanian strongman and drug entrepreneur Manuel Noriega to surrender to U.S. forces after he holed up in the Vatican’s embassy in Panama City.

There is no doubt, then, that music can be and has been used to break down the resistance of the detainees. But whether or not it amounts to torture, as the musicians claim, depends on a number of circumstances. Playing some kinds of music may be torture per se. For example, having to listen at all to Nine Inch Nails, Rage Against The Machine, the Bee Gees, any form of rap, or the Meow Mix Jingle constitutes torture per se.

On the other hand, sometimes torture depends on the circumstances under which the music is played. For example, as every parent knows, probably going back to Mozart’s parents telling him to stop banging on the piano as if he were Little Richard, playing “what those crazy kids now call music” at high volume constitutes torture. Thus, it would only constitute torture having to listen to “The Real Slim Shady” if the volume were high enough actually to make out the song.

A different circumstance to weigh in a torture assessment may be the topic involved. Thus, Two Live Crew’s “Me So Horny,” Sir Mix-A-Lot’s paean to large rumps, or some of Fergie’s vocalizations would not constitute torture if they were played to get a recently-arrived detainee to talk. On the other hand, if those pieces are played to some guy who’s been detained at Gitmo for years and has been deprived of the reality of what those songs describe—that’s torture.

Another circumstance would be the number of times the song is repeated. Played often enough, say at Christmas time when the daughter is practicing for her ballet performance, even “The Nutcracker” becomes torture. Combine the repetitive playing with the intriguing name (”All right, pal, we’re going to introduce you to the Nutcracker”) as the detainee is led into an unfamiliar room, and, sure, that can be torture. Now, imagine if the song is “Jingle Bells,” or anything by bands named Deicide or Saliva. Even if those works are not torture per se, repeated exposure would be Poison (oh, wait, they aren’t named).

On the other hand, I don’t believe that hearing the theme songs from Sesame Street or Barney can constitute torture. They kind of fade into the subconscious over time as the brain adapts. With seven kids, over the years I have been exposed to those songs countless times. And, as this blog fully attests, I am perfectly normal.

Then there is the matter of styling. Listening to the singing of the Star-Spangled Banner can be a rousing experience. If done in that cute off-key way that kids sing it, listening to the styling can be heart-warming. But then there is the way “artistes” deliver their “interpretations” at sports events and other such gatherings. As these songsters pant and shriek and extend notes beyond their natural lifespans, at a volume usually associated with small jet engines, the experience turns torturous. The performers typically then misunderstand the clapping of hands as applause, leading them to believe they should pursue a career in singing. Judging from my reaction, the clapping is an attempt to see whether the listeners are still sensate and registers a general sense of relief that they have survived the pain and ordeal.

By itself, merely having to listen to the anthem of the Great Satan may be annoying to the detainees, but hardly torture. On the other hand, when it is sung as if by the Great Satan and his malevolent horde, it may well cross the line.

Just as with other techniques aimed at softening up the detainees, the playing of music might or might not be torture, then. It is often highly situational. I am pleased, though, to see so many musicians agree that their works arguably are crimes against humanity, something that many of us have long known. Yes, metalheads, I am talking about your favorite band.

But, not to worry any longer about such difficult distinctions. Our President has decreed that harsh interrogation methods will not be used. Everything must be non-coercive and in accordance with the Army Field Manual (except maybe at those temporary CIA secret prisons that are not being shut down though the President says that they sort of will be). Given its current culture of political correctness, I rather doubt that the Army would even allow the playing of a decent John Philip Sousa march. Instead, each detainee will now get a free head set and a playlist of cool jazz, with some classic Motown thrown in. Certain detainees may, if they wish, opt for a collection of show tunes, instead. Then each can select his own music as a prelude to the interrogation conversation over coffee and crullers.

Charles Krauthammer absolutely eviscerates what he describes as Obama’s young Hamlet performance over the direction of the war in Afghanistan. Krauthammer exposes the Democrats’ declaration in 2004 of Afghanistan as the “right war” (to contrast it with the Iraq War) as mere political opportunism to be used against George W. Bush and to defend Democrats against their public image of being weak on defense and national security. Obama, too, used that characterization and, indeed, added that it was a “necessary” war, again to contrast that with the supposed war by choice in Iraq. All of that lasted, as Krauthammer describes in brutal detail, until the Democrats actually had to come out of their political sniper lairs and govern. Since then, they have resorted to type. One suspects that their delays have the goal of finding ways to distract the American people from the reality of the flight from political responsibility.

The President blames the need to develop a strategy before he can decide on his commander’s troop request. This is indefensible on several levels. As Krauthammer explains:

“On March 27, flanked by his secretaries of defense and state, the president said this: ‘Today I’m announcing a comprehensive new strategy for Afghanistan and Pakistan.’ He then outlined a civilian-military counterinsurgency campaign to defeat the Taliban in Afghanistan.
“And to emphasize his seriousness, the president made clear that he had not arrived casually at this decision. The new strategy, he declared, ‘marks the conclusion of a careful policy review.’
“Conclusion, mind you. Not the beginning. Not a process. The conclusion of an extensive review, the president assured the nation, that included consultation with military commanders and diplomats, with the governments of Afghanistan and Pakistan, with our NATO allies and members of Congress.
“The general in charge was then relieved and replaced with Obama’s own choice, Stanley McChrystal. And it’s McChrystal who submitted the request for the 40,000 troops, a request upon which the commander in chief promptly gagged.”

Even as he delays and dithers, American troops are placed in jeopardy. Not in the sense just of being stretched thin. Unless the President shortly announces full-throated support for the McChrystal plan and acts swiftly to implement it, the damage is done. American troops, as well as the Taliban, are getting the message from this delay and from Obama’s political missteps (such as openly announcing support for Taliban political participation and for Taliban control of parts of Afghanistan) that the President is committed at best to a defensive stalemate and, more likely, a defeat and withdrawal. That emboldens the Taliban, weakens political resolve among anti-Taliban Afghani warlords and more national politicians, and undermines American military morale a la Vietnam. It invites more active Iranian meddling and threatens the precarious stability of Pakistan, as well as of the other “Stans,” who are facing increasing internal threats from Taliban-like groups. Even if Obama eventually approves some additional troops, the very public delay will have done its damage.

Instead, Obama seems to be swayed by the military stylings of that great genius Colonel Klink Vice-President Biden. Whom to believe, the military’s foremost experts in such matters, who were successful in Iraq and who were handpicked, though perhaps only for show, by President Obama? Or a guy who has seen a few too many Rambo and Delta Force movies?

There has long been a suspicion that some of the zealous defenders of terrorists and unlawful enemy combatants are unfortunately interested in exposing those who help the American effort against her enemies. They have used significant efforts at seeking the identities of American agents. If those identities are revealed, it can endanger the lives of those agents. Previous disclosures of such active agents (not Langley desk jockeys who pose on Vanity Fair covers with their husbands), especially when abroad, have led to their death.

Now comes evidence that attorneys for Guantanamo detainees showed pictures of covert CIA officers to their clients. Indeed, ”the photos were taken by researchers hired by the John Adams Project, a joint effort of the American Civil Liberties Union and the National Association of Criminal Defense Lawyers, to support military counsel at Guantanamo Bay, according to the sources, who spoke on the condition of anonymity because of the sensitive nature of the inquiry. It was unclear whether the Justice Department is also examining those organizations. Both groups have long said that they will zealously investigate the CIA’s interrogation program at ‘black sites’ worldwide as part of the defense of their clients. But government investigators are now looking into whether the defense team went too far by allegedly showing the detainees the photos of CIA officers, in some cases surreptitiously taken outside their homes.”

This article identifies another player in the ACLU’s campaign against American security efforts and in favor of terrorists and other radical Islamists, Jameel Jaffer. The man apparently is not an American, but a Canadian, and, as the ACLU’s “National Security Programs” director, he works assiduously to undermine the American struggle against al Qaeda.

As an aside, the article also uses discussions with unnamed current and former White House officials to warn about the Obama administration’s program of accomplishing its radical agenda through regulations put in place by unelected appointees who avoid the Senatorial confirmation process, if the administration cannot get its programs through Congress. A key person in that effort is Obama’s friend and adviser Valerie Jarrett (once mentioned as a possible Senate nominee to replace Obama when he won the Presidency). She, as well as Jaffer, Van Jones, and others are well-connected to the radical left fringe whose political assistance Obama needs and with whose agenda Obama generally sees eye-to-eye.

The Obama administration’s decision to cancel the Bush commitment to build a missile defense system to protect the U.S. against attack by Iranian missiles has stirred a hornet’s nest. The Polish and Czech governments had expended considerable domestic political capital in agreeing to host the systems, including the very sophisticated radar essential to the system. The Russians strenuously objected, claiming the system was an attempt to overwhelm Russian missile power through a massive first strike and a defense against a Russian counterstrike. Never mind that the system is not powerful enough to withstand massive retaliation, but is designed to shoot down a few missiles. Never mind also that the Russians are spending money on missile defense. The Russians’ real objection is to the integration of those countries with the West that makes the Russian goal of re-establishing the Soviet-era sphere of influence more difficult. That was also part of the geopolitical reason the Bush administration moved forward with that plan. Remember Donald Rumsfeld’s derisive reference to “Old (Western) Europe” and his embrace of “New (Eastern) Europe”?

The administration has painted this as merely a technical matter, emphasizing that they are moving ahead to develop other forms of anti-missile defense that will protect Europe and Israel from mid-range Iranian missiles that the regime is building in a collaborative effort with North Korea. Obama claims that there is no need to protect the U.S. East Coast from Iranian ICBMs because Iran doesn’t have any and is not as far along in developing them as the Bush administration thought. That’s not very comforting, given that American intelligence apparently again has underestimated the advanced state of the Iranian nuclear program, and that Iran is actively working on an ICBM, most likely with its North Korean partners-in-rocketry. It doesn’t need a lot to launch an Electro-Magnetic Pulse weapon that can do serious damage. Incidentally, the West Coast does have a missile shield against rogue nuclear missiles.

Maybe Obama’s claims to be developing technically better weapons are valid; I certainly dont’ know. But I am suspicious, given the Democrats’ decades-long objection to the whole concept of missile defense and the administration’s cut in funding for missile defense. Moreover, there may already be anti-missile defenses for short and medium range missiles in Israel and Europe. Most baffling, if Iran will have those ICBMs in, say, five years (as seems to be the more optimistic perception), why not build the defensive system now? I rather doubt that Obama is moving backwards now, with all the political cost that entails, only to incur greater political cost and uncertainty to build the system in five years. It makes more sense to osuppose that he intends not to have such a system.

Obama has also claimed that this is a purely technical decision, while his advisers are hoping that the move will spur concessions from the Russians. The Russians, in turn, quite unremarkably do not see this as either a technical decision or a quid pro quo tactic. They see it as the “correction of an American mistake.” They see themselves as having won a struggle with the Americans and are probably crediting their belligerent statements against Poland, their natural gas shutoff/energy blackmail against Ukraine and Western Europe, and their military action in the Caucasus. The Putin/Medvedev combo has said that they “expect” other corrections of American mistakes by the Obama administration.

Other countries, too, see this as part of the Obama approach of a U.S. that is humble, corrects its perceived injustices to the world, and uses its military muscle only in the service of transnational institutions controlled by American opponents. It believes that this is the way for American influence to be reestablished. Other countries see it as American weakness and are acting accordingly.

Charles Crawford is a former British ambassador to Poland. He has written an excellent and, to me, persuasive analysis of the international politics of the administration’s decision to cancel the Eastern European missile shield. I especially found his explanation of the Russian angle and his conclusion insightful. The U.S., on the one hand, and Russia and China, on the other, have fundamentally different and ultimately conflicting world views. They are playing different games, while the administration thinks they are playing the same game with the same rules and predictable actions.

“Which is why when the going gets tough, Russia will never do more than the bare minimum to give the Americans real help against obnoxious states and extremists and terrorists. Much better for Moscow to keep the prospect of such help dangling like a carrot indefinitely, so that Russia can negotiate from greater strength far down the road as and when its power has grown and America’s has diminished.”

As to his conclusion, I choose a combination of the two, an outcome that is scary enough in terms of what it will cost the U.S. in the future to undo the damage, if that even can be done by ordinary political means.

As anticipated, American allies, such as Poland and the Czech Republic, who are again feeling the political rug pulled out from under them by the fickle U.S., are drawing their own conclusions. It certainly will be no surprise that dealings with those countries in the future will be more problematic. (This link contains some especially caustic reactions unfavorable to the U.S.) They may be well-advised to seek their own accommodations with the Russians, as American geopolitical gains since Reagan are thrown away. Even the Western Europeans at some point may need to face the possibility that the U.S. won’t help them, either, and face up to the prospect that their free riding on American defense dollars to prop up their welfare states is over. If that is the case, that is one good thing to come from Obama’s multi-pronged quest to blunt and soften American power.

Another prong in that quest is Obama’s determination to reduce the American stockpile of nuclear weapons towards an eventual (and, one hopes, not unilateral) nuclear disarmament. The anti-missile decision is a part of that strategy. Needless to say, America’s opponents whose stockpiles are either more outdated or smaller, or both, like that plan, though the French (!) are balking at the strategy. One really has to question whether Iran and North Korea, or even India and China would be awed by the Obama plan into renouncing their nuclear weapons, or whether that would merely be an invitation of another sort to them. It all seems like some International Relations seminar of the type Obama took to satisfy his undergraduate major. It would be interesting to have his undergraduate papers on the topic released.

In another accommodation to the Age of Obama and the new geopolitical realities of the coming post-American era, Turkey wisely is moving to acquire its own anti-missile system.

Other observers see the projection of American weakness as an invitation to nuclear proliferation as countries question the value and strength of the American “nuclear umbrella” in the current administration. Rich Lowry at NRO decries Obama’s decision as a “masterstroke of weakness.” Pointing to Obama’s remarks in April about the courageousness of the Poles and Czechs of hosting the missiles, Lowry doubts that the intelligence about Iranian long-range missiles could have changed so drastically in a few months as to support the American turn-about. Mark Steyn turns his customary caustic word skills against the decision:

“But you’ve got to figure that by now the world’s strongmen are getting the measure of the new Washington. Diplomacy used to be, as Canada’s Lester Pearson liked to say, the art of letting the other fellow have your way. Today, it’s more of a discreet cover for letting the other fellow have his way with you. The Europeans ‘negotiate’ with Iran over its nukes for years, and, in the end, Iran gets the nukes, and Europe gets to feel good about itself for having sat across the table talking to no good purpose for the best part of a decade. In Moscow, there was a palpable triumphalism in the news that the Russians had succeeded in letting the Obama fellow have their way. ‘This is a recognition by the Americans of the rightness of our arguments about the reality of the threat or, rather, the lack of one,’ said Konstantin Kosachev, chairman of the Duma’s international affairs committee. ‘Finally the Americans have agreed with us.’

“There’ll be a lot more of that in the years ahead.”

I’m afraid Steyn’s right.

President Obama has made Afghanistan, the “good war,” his own. Even as the Iraq situation was being stabilized and the al Qaeda-directed “insurgency” broken by the Bush administration’s military policy led by General Petraeus, candidate Obama called for increased effort in Afghanistan. In fairness to Obama, the Bush administration was calling for the same strategy, as success in Iraq caused al Qaeda to reemphasize its earlier alliance with the Taliban and turn Afghanistan from relatively quiescent into an increasingly hot military theater. Since his election, Obama has frequently talked about the need to win in Afghanistan, and that the U.S. would do whatever it took to win. Only last night, on the Letterman show, Obama reiterated the point that the U.S. was going to defeat the bad guys in Afghanistan.

But when it came time to put his money where his mouth is, Obama has been MIA. His administration has directed the military to delay troop requests at least a couple of months, until the White House has completed its assessment (which they have had since late winter to do. The military, sensing that the administration is planning to pull the rug from under them, has fought back. They leaked the Afghan report that claimed that the situation is rapidly worsening. That is a judgment apparently endorsed, at least implicitly, by the administration when it claimed it needed more time to assess the proper strategy as matters had changed significantly since March of this year. Now there are rumors that the general Obama placed in charge of the Afghan War is going to resign if he doesn’t get the troops and support he believes he needs. The military is increasingly doubtful that the administration is committed to the success in Afghanistan that Obama proclaims for public consumption. It’s Vietnam all over again.

I am certainly not in a position to challenge either the military’s assessment or the Obama administration’s political calculus. What is distressing, however, is the administration’s unwillingness or incapability to be clear about its objectives, either to accept defeat in Afghanistan or to move toward victory, including defining what that means and how to go about achieving it.

It always gives me a weird feeling when the French are more bellicose than the U.S. It’s that odd feeling that, not only are the stereotypes crumbling, but you have the bad characteristics you mocked in the other. When the CIA in 2007 came out with a National Intelligence Estimate that Iran had stopped weapons-grade uranium production, the event was trumpeted by American media, the Democrats, and the Iranians as evidence that the Iranian threat was overblown. That gave ammunition to the Obama campaign in 2008. President Bush at the time was obviously unhappy with that NIE and irritated with the reaction. The Israelis scoffed at the information and conclusion and publicly stated that its intelligence services believed the opposite. Even the U.N.’s agency was more cautious. Now, in the CIA’s defense, I recall reading that the actual analysis, not the summary conclusions, was much more reserved and more skeptical about Iranian claims about its nuclear program.

Well, here is Nicholas Sarkozy, who, based on French intelligence, believes that Iran is working on a nuclear weapon. He calls it a “certainty.” He is seconded by a “secret” assessment from the U.N.’s IAEA which also believes the Iranians are pursuing nuclear weaponry and missiles to deliver them. Unfortunately, though not unexpectedly, the IAEA’s head apparently has tried to hide that information. Iran, meanwhile, pointedly refuses to reject the notion.

So, while the U.S. dithers and underestimates the Iranians, the French show some resolve.

Judea Pearl is the father of Daniel Pearl, the Wall Street Journal reporter who was brutally executed by al Qaeda terrorists in a videotaped beheading in Pakistan. One of the Guantanamo detainees so beloved of various human rights types, Khalid Sheikh Mohammed, has declared several times that he is the one who was behind the murder. That hasn’t stopped the human rights lawyers from denouncing the carefully delimited interrogation techniques in the Office of Legal Counsel memoranda to the CIA during the Bush administration as torture, thereby equating limited waterboarding to gain information with sawing off people’s heads for—well, it’s not exactly sure why.

But that’s not the point here. Pearl senior has a good op-ed piece in The Wall Street Journal that correctly identifies the problem with relying either on a criminal law approach or on a pure traditional war powers approach to the detention and interrogation of terrorists and other unlawful enemy combatants. He dismisses the Geneva Conventions as outdated in regards to this new transnational terrorism and urges that the world ”embrace a legal category to deal with the new phenomena of a war with no foreseen ending; an army with no honor and no respect for human life; an army with no uniform, no country and no government; and an army that does not reciprocate agreements.”

He also urges closed trials, not just to protect sensitive evidence but to deprive the terrorists of that oxygen their movement craves, a public forum from which to air their grievances. “Detainees should not be given a platform to broadcast messages to their comrades or recruits back home. There is nothing more enticing to a would-be terrorist than the prospect of becoming the center of world attention, able to broadcast his alleged grievances to every living room on this planet.”

The circus that the trial of Zacarias Moussaoui in open federal court became is ample testimony on behalf of Pearl’s argument. Unfortunately, such a step probably would be unconstitutional, as well as unwise. Secret trials of suspects always create more fantasy of horribles going on there than the reality. Justice must not just be done, but it also must appear to be done. That means that such trials must be open to the extent possible. Moreover, although trials of enemy combatants held outside the U.S. have never triggered constitutional scrutiny, the Supreme Court’s recent forays into national security areas its lack of competence traditionally caused it to shun, make it likely that the Court would extend constitutional rights to terrorists even held and tried abroad in any American tribunals. That is especially likely for the basic right under our Constitution of a public trial.

This is a very sobering evaluation of the war effort in Afghanistan, written by the premier war correspondent over there, Michael Yon. The situation continues to deteriorate. While the military proposes to push for a stronger counterinsurgency effort using an increased number of troops, our “allies” are getting increasingly cold feet and the administration has already rejected proposals for more troops beyond the 21,000 it is in the process od adding. The military has proposed making many of the rear echelon troops into fighting forces. That would increase the stress on the fighters and undermine morale, along with raising the body count.

Yon explains the importance of helicopters, as many of these bases are increasingly cut off from each other and surrounded by Taliban-controlled areas. This sounds similar to the Vietnam War, though the pictures also show the difference between Vietnam’s jungles and the Afghan wasteland. The helicopter pictures, showing the rotor glow caused by the dust whirled up by the rotors, are visually fascinating.

Max Boot of the Wall Street Journal explains the geopolitical importance of our presence in Afghanistan in helping to prevent the disintegration of Pakistan. If the (primarily Pashtun) Taliban were to regain control of Afghanistan, the effect on Pakistan would be extremely harmful. The military is finally turning to a more assertive counterinsurgency, but one that demands more troops, more money, and more time.

Joining the chorus, The Wall Street Journal adds its own editorial call for a more sustained and assertive capture-and-hold anti-insurgency effort.

Liberal realist Richard Cohen, writing in The Washington Post, decries the politicization of counterintelligence efforts that has resulted from the administration’s decision to appoint a special prosecutor to investigate CIA interrogations of terrorists. Cohen agrees that these investigations, combined with the disclosure of interrogation methods forced by the ACLU, and the administration’s formal abnegation of successful interrogation methods have made the U.S. less safe. Future terrorists will be trained to know the limits of the “do-you-take-cream-with-your-coffee” interrogations that are permitted. They will know about the potential legal liability that hangs over the interrogators’ heads. He knows that he is in the driver’s seat. Cohen does not say this, but our hope under those circumstances is that the Obama administration under such circumstances will quickly find an expiration date on their “reforms” and proceed with exactly the same kinds of interrogations that Dick Cheney would approve. Not a comfortable feeling to have to rely on such hope for change.

Cohen gives a generally solid assessment, as he has done in the past on this issue. But, though his sense of this is right, he is a liberal writing for the Post. So he has to insert some dubious claims in the hope of keeping his readers around long enough to get his main message to them. Some of his peripheral assertions and his assumptions are fallacious. Thus, waterboarding as done by the CIA is not torture under any statute or international convention, if the words are given their English meaning, nor under common sense. Contrary to Cohen’s characterization, no conservative I have read has ever claimed that torture always works. His portrayal of Cheney is a laughable caricature. But his main point is valid, and we will come to regret Obama/Holder’s politicization of national security for some cheap political pay-off to the Democrats’ loony left-wing. The more they dig themselves into this hole for short-term political cover, the more likely there will be investigations of them when the opposition regains political power.

Conservative columnist George Will has published a column that, fundamentally, gives up on the war in Afghanistan. The column has produced a storm of controversy among conservatives, with some in favor but most attacking Will. From some of the reaction, one would think that Will is the conservative version of Medea Benjamin of Code Pink. I think that Will raises some valid points but that his solution is a non-solution.

Will points to the backwardness of Afghanistan to argue that the basic premise for nation-building and for successful counterinsurgency is the ability to provide security. Right now, the Americans and their NATO allies can do neither, despite the presence of more than 100,000 troops. Americans are tiring of the war, while the body count goes up. Yet success there would require presence for more than a decade and a far more massive commitment of troops.

Will urges that “forces should be substantially reduced to serve a comprehensively revised policy: America should do only what can be done from offshore, using intelligence, drones, cruise missiles, airstrikes and small, potent Special Forces units, concentrating on the porous 1,500-mile border with Pakistan, a nation that actually matters.”

I have some thoughts about Afghanistan. One of the themes commonly heard is that Afghanistan is ungovernable within and unconquerable from without. Therefore, it is said, our effort is bound to fail, as was the Soviets’. Those sentiments have some support in the current facts on the ground. First, Afghanistan is notoriously backward in many parts and its terrain difficult to traverse, as Michael Yon has so well illustrated. This may put modern militaries at a disadvantage if they seek to rely on traditional modes of movement and occupation.

Second, with few exceptions, the NATO forces are, as Mark Steyn has satirized, bound by rules of engagement that make them close to useless. The German forces are so hemmed in by restrictions, it isn’t clear that things wouldn’t be better if they just got out of the way. It certainly doesn’t add to the militaries’ respect for each other, a respect that is necessary if there is going to be a coordinated process toward a uniform goal.

But I differ with the assertion that, judging by history, Afghanistan cannot be militarily controlled. We are not the Soviets, whose theory of massed brutal warfare was blunted by the Afghanis’ willingness to absorb huge losses. Afghani families are large; Russian families not. If an Afghani son is killed in a family of six children, the personal tragedy to the family, culturally already accustomed to the constant presence of death and privation, is less than to the Russian family where he may well be the only child. Over time, the Soviet method of warfare ironically favored the prey more than the predator.

We are not the Soviets, and our own theory of warfare is more conscious of protecting life, ours and theirs. Sometimes perhaps too much so. Thus we have different, and more sophisticated ways, of controlling a population, usually through political and economic tactics. The old “Win their hearts and minds” policy, in contrast to the Russian “When you’ve got ‘em by the ba**s, their hearts and minds will follow” doctrine.

Moreover, the lesson of history is decidedly mixed. Alexander, the Persian kings, and the Mogul Emperors all controlled at least large parts of Afghanistan for considerable periods. In the 19th and 20th centuries, British imperial policy combined military and political efforts to establish some semblance of influence over swaths of Afghanistan. True, the British shunned direct occupation, thereby avoiding the military and economic sacrifices that would have entailed. But they did so also to create a buffer zone and avoid having a direct border between British India and the Russian Empire. They created and maintained an Afghani buffer state, or buffer fiefdoms. It was a hard-headed, non-prettified realpolitik of doing business with unsavory characters in pursuit of the more important geopolitical goal. It isn’t clear that we have the stomach for that today. But it can be done. To the extent Britain relied on military forces, they made extensive use of local allies and auxiliaries. That is generally a smart imperial policy.

As to governance, it is always the case that the population, especially in countries with no democratic tradition, will lean towards the strong horse that is most likely to provide security to live their lives. The Americans have a reputation, nurtured by anti-war movements since Vietnam, of unreliability and lack of staying power. That, in turn, creates a self-reinforcing cycle of skepticism, lack of local support, disappointment, lack of progress, collapse of American domestic support, and failure. Cultures who are not accustomed to spectacles of open debate over such issues misread these protests. The enemy is only too glad to assist in promoting those mistaken views of a superpower whose aura of invicibility is a mirage.

Will is correct, then, in having serious doubts about the success of our mission militarily and politically. I don’t know what the fine details for success are in Afghanistan. The military and political experts are in the proper pay grade for that; I’m not. But Will’s “solution” isn’t one. Lobbing cruise missiles from offshore is not a long-term strategy. Using special forces launched from naval units for the periodic hit-and-run is disastrous. Such forces need information and support that is not easily provided on an ongoing basis from ships or foreign bases. Maintaining the occasional base or retaining Bagram as a mission center would be impossible without military control and local political support, both unlikely in an Afghanistan largely controlled by the Taliban.

By the way, the trial balloons floated by candidate Obama’s team that we could deal with moderate elements of the Taliban is unlikely, as well. Better to boost the corrupt warlords whose alliance is only a matter of getting the price right. As the Iran experience should show by now, even the “moderate” true believers still wish our destruction and are themselves hemmed in by the political reality of militant hate for Western secular humanism in which they operate.

There is a wonderful book by Lt. Col. John Nagl, Learning to Eat Soup With a Knife. He is a counterinsurgency expert. He argues that, based on the experience of the British in Malaya and the French in Algeria, the key to fighting insurgencies (usually a long-term project) is to blend into, and gain the trust of, the population, to operate in smaller mobile units rather than as a major visible occupation army, to retain command flexibility to respond quickly to changing conditions, and to rely on trained local units. The goal here is to provide enough security to buy time to let the appropriate political forces mature and gain the upper hand. The end solution is a political victory that deprives the insurgents of popular support. Similar tactics worked for the U.S. in the Philippines and their absence plagued the American effort in Vietnam.

If Nagl is correct, and history seems to bear him out, the way not to be successful is Will’s way. This last point is one also made by John Noonan of The Weekly Standard.

The Obama administration is finally moving ahead with its plans for further incapacitation of the CIA. Let me state at the beginning what I have said numerous times. I am not a fan of the CIA as an institution. I realize that it is a necessary institution whose efforts are, I hope, supplemented by numerous other organizations that can operate in the shadows relatively unconstrained by the restrictions that the Congressional majority’s Lilliputians seek to put on any effort to combat terrorists effectively. I will grant that there are a lot of dedicated employees, many of whom believe in the agency’s mission, and some of whom do so at personal risk. But I evaluate the leadership of the institution as a group that too often seeks to undermine the regular civilian political structure if it perceives itself under attack, or if it disagrees with the broader policies of the White House. So I am not inclined either to believe uncritically what the CIA says or to have instinctive sympathy for the agency when it finds itself under challenge. That said, I agree with those who aver that the administration’s actions, like those of the Church Committee thirty years ago, are a disaster for agency morale and, again like the Church Committee, will hamper our already compromised intelligence gathering capability.

The administration has taken several steps. It has ordered that interrogations be done by the FBI, assisted by some other, unspecified experts. Attorney General Holder has appointed a special prosecutor to investigate whether CIA personnel have committed crimes by interrogating detainees beyond Justice Department guidelines. The administration has released files about CIA interrogation techniques.

As to the first, there may be less here than meets the eye. On one level, of course, it appears as if this will hamper intelligence gathering. That’s probably correct. The FBI is trained to gather evidence for trials in the federal courts. Even in its investigatory functions, it is looking at ordinary criminal conduct, still with an eye to eventual prosecution. Dealing with terrorists often is not with an eye to criminal prosecution, but to gather information about impending attacks or for other military uses. To the extent criminal conduct is involved it is likely to have a connection to war, such as acts contrary to the laws of war or atrocities, or to quasi-military activities.

For such investigations and interrogations, speed is often of the essence as information is likely to get stale. Careful cultivation of detainees and other long-term projects may work to disclose information for eventual trial use, but not for field use. The administration has to know this. They may want to placate their left wing and to distract from their domestic policy fiascoes. But they also fear a terrorist attack that potentially would seal the President’s political downfall. As a result, there will be more intensive early interrogations. They likely will occur somewhere other than a formal U.S. detention center, perhaps at an undisclosed location. Extraordinary rendition will become more important, and, unlike during the Bush administration, congressional Democrats will experience a sudden lack of interest in pursuing such things. The means will go beyond Obama’s order to use the Army’s Field Manual as the framework. That yields little beyond name, rank, and serial number, and is useful to process the ordinary “honest” enemy soldier, not irregular terrorists who hide among civilians and operate outside any legal order, including the law of war.

Lo and behold, there comes a reportthat the administration will release to the Red Cross the names of detainees at prisons run by the Special Forces. But the Red Cross will not be permitted to talk with the detainees. In the spring Obama already issued a caveat about the closing of Gitmo and CIA “secret prisons.” Such closures would not apply to temporary detentions. Temporary for what? There is no need for secret detention centers if only an administrative processing is to be accomplished. Though these particular facilities are not technically secret, these obviously are interrogation sites.

These are short-term facilities where detainees are “usually” held “for a few weeks.” The interrogations are apparently not done by the FBI. Why not? “It is usually in ‘the early hours’ of detention that interrogators ‘are able to gain the freshest and most valuable intelligence,’ the official said.”

As to the appointment of a special prosecutor, the administration is taking the ludicrous position that this is entirely Eric Holder’s decision. He takes the position that the facts forced him to do so. Both President Obama and Attorney General Holder proclaim that they want to move forward, not look to the past. Nice try, but the public won’t follow that line of plausible deniability. This move has a great chance of blowing up in the President’s face politically, especially in light of the erosion of his public standing on national security issues. The appointment of a special prosecutor is another attempt to put ground between the administration and any decision to bring criminal charges.

My sense is that, in the end, they will find some fall guys to prosecute. Most likely those will not be CIA employees but private contractors. The latter are less sympathetic in the public’s mind that for some irrational reason tends to see the same behavior in government employees as more defensible than when is done by private individuals. Of course, the government heavily relies on private contractors such as Blackwater for security that government forces apparently cannot provide as well. So, there will be future backroom deals and fee adjustments to attract contractors who will be well aware of the administration’s propensity to look for lambs to be sacrificed to the odd sentimentalities of the Left elites.

In a related matter, the administration has released information about CIA interrogations, including an internal investigation by the CIA’s Inspector General. That report details what the N.Y. Times describes as abusive interrogation. Most (not all) of what is described there is intense, a few things might be abusive, and nothing there would, in a sane world, qualify as torture. I assume that the Times, being what it is, has selected the juiciest parts.

These disclosures will damage the CIA. The decision apparently provoked a tirade from CIA Director Leon Panetta, who threatened to resign. That resignation did not come, but reports are that there will be considerable turn-over in agency personnel, something that will severely damage morale. Obama has to hope that there is no “man-caused disaster,” in the inimitable euphemism of Homeland Security Secretary Janet Napolitano for terrorism. There is too much of a record of actions of his administration that have a predictably debilitating effect on national security.

There has been a recent surge in chatter from Obama officials about investigations of the Bush administration, in contrast to the direction things were headed in March, with the then-expressed desire to “look to the future, not to the past.” I had told a colleague who asked me shortly after Obama’s inauguration what I thought of Obama’s then apparent moderation. I told him I would reserve judgment until I saw how Obama acted when things were not going well politically. With Obama’s political agenda running into increasingly stiff political head winds, we may be getting a taste of things to come, Chicago-style.

James Delingpole at the U.K. Telegraph has noticed something similar in the particular instance of an announced investigation into the death of Taliban soldiers at the hands of an Afghan warlord in the time following 9/11. He asks why the U.S. is even investigating this, and, more particularly, why now. He voices the suspicion that hangs in the air:

“So where’s all this nonsense suddenly coming from that the US’s most urgent priority there is to investigate the killing of Taliban  by a non-American in the chaos and mayhem immediately following 9/11? (And incidentally if killing Taliban - plus sundry innocent civilians - is really such a problem, oughtn’t Obama to be investigating himself?)

“Surely it can have nothing whatsoever to do with the fact that Obama’s poll ratings are falling, his economic policy is failing, unemployment is rising, his universal healthcare plan stalling, his cap n trade running into serious opposition, and his Afghan adventure looking more and more likely to turn into his Vietnam?

“Surely a man as palpably noble and decent as Obama would never be so unprincipled as to try - for a second time in three months - to court cheap popularity with his nation’s enemies by undermining his own intelligence services and blaming everything on the CIA and George W Bush?”

Surely not.

There have been many of us who have doubted President Obama’s ability to make good on his hasty pledge to close the Guantanamo detention center within a year of his inauguration. He made much of that gesture, but the reality of dealing with rather bad people and his desire for various reasons not to have a terrorist attack during his presidency is pose more complex questions than can be airily addressed in campaign speeches designed to criticize his predecessor.

Now comes another clue that the deadline won’t be met. Reports for recommendations what to do with the detainees and how to interrogate future detainees have been delayed, possibly until the very day the deadline expires. If those reports come out that day, and Obama immediately closes Gitmo, it will look as if he has not adequately considered them in his decision. That would make the closure appear political rather than prudent and could come back to haunt him. As a result, he almost has to postpone that decision unless the report comes out with at least several weeks’ lead time.

The Taliban are using a captured American soldier to produce propaganda videos. The U.S. has treated captured Taliban soldiers (those with identifying uniforms under an organized command structure) as enemy combatants entitled to the full protection of the Geneva Convention articles on captured enemy soldiers. This is different from the treatment accorded the al Qaeda terrorists and irregulars who are not so identified. They are treated as unlawful enemy combatants who violate the laws of war. One of the protections for regular enemy soldiers is that they may not be exploited for their captors’ propaganda purposes. Can we expect all those self-described human rights groups and those American attorneys who swarmed to Iraq to defend Saddam Hussein to denounce this flagrant breach of the Geneva Conventions and to go to the Taliban-controlled areas of Afghanistan to help protect this soldier’s rights? [Crickets chirping.] I don’t think so, either.

A couple of months ago, Speaker Nancy Pelosi found herself in some political hot water when she claimed that she was not aware of the Bush administration’s waterboarding of suspected terrorists. When challenged, she doubled down and declared that the CIA had misled members of Congress about the waterboarding in that they allegedly told her that it was only being considered, not that it was being done. Ultimately, she conceded that she learned about the waterboarding, but only in 2003. She also noted that one of her aides may have been told earlier but that the aide never informed her, presumably a common practice about such insignificant subjects as interrogations of suspected terrorists. She blamed that one on her having moved from the relevant committee. She also said that, once informed, she kept quiet because she was focused on trying to get Democrats to win the Congressional elections two or four years later. Besides, by that time the program had been ended. The CIA and other participants at these meetings vehemently disputed her version of events, including references to CIA records when what was disclosed to members of Congress. Moreover, she was blasted for her attempts to dissemble about the relevance of whether she learned of this in 2002 or 2003.

Now, in what is obviously a lame attempt by Congressional Democrats to bolster her position, they have leaked a letter by seven of them accusing the CIA of having misled Congress about their activities during the Bush administration. This is based on alleged closed-door testimony by CIA Director Leon Panetta in June and follows a similar letter by the Democratic Chairman of the House Intelligence Committee (a guy who didn’t know what the religious affiliation of al Qaeda was) to the ranking Republican member. The clear implication is that Pelosi’s contention of being misled about waterboarding is correct.

Dafydd ab Hugh does a nice job exposing the Democrats’ snow job in a way that the corporate media are incapable of doing, apparently. First, Panetta’s spokesman has issued a statement that Panetta denies saying anything like that in the briefing. Second, the spokesman has issued a statement that Panetta stands by his earlier declaration about lack of CIA misinformation.

Third, the Democrats do not specify exactly what the CIA did. Except for one instance of unspecified lying, the letter just claims incomplete notification of CIA activities, which act of omission is different from the implied act of commission that a charge of misinformation represents. What appears to be the failure to notify regards a program having nothing to do with the interrogation/waterboarding of terrorists. And the Democrats’ letters carefully avoid any such claim. Worse, the insinuation cannot be rebutted without disclosing information that it is illegal to disclose. Indeed, when specifically questioned, Democrats refused to say what the misinformation was, citing the sensitive nature of the disclosure. Obviously, that cannot relate to the already-disclosed waterboarding. But, predictably, the media and the Democrats have tried to tie this to the waterboarding disclosure issue and to bolster Pelosi’s laughable position.

Finally, the Democrats are launching these “disclosures” when there is a bill before them to expand the requirements of CIA briefings to include substantially more members of Congress. The Republicans oppose this on the very reasonable grounds that the more disclosure of CIA and other secret tactics, the more likely the chance of a leak. Ab Hugh provides a public service with a quick run-down of damaging intelligence leaks and manipulation of entrusted evidence by Democrats in the House and Senate. There is a reason Rush Limbaugh refers to Senator Patrick Leahy as “Leaky” Leahy.

But Republicans have an ally, Barack Obama. The President, like his predecessor, has threatened to veto any such dangerous expansion of the reporting requirements. So, likely, this will just be more political posturing by the San Fran Gran and her gang for their far-left constituencies to wash away the embarrassing fact (for her) that she may, briefly, have put America’s interest ahead of that of anti-American terrorists when she approved of waterboarding in 2002.

A brief panel discussion by Wall Street Journal editors about the decision of the federal district court in San Francisco (where else) to allow a civil suit from convicted terrorist Jose Padilla against Professor John Yoo over the advice memos that Yoo wrote at the request of the CIA regarding the legality of certain interrogation techniques under the Torture Act. As I have written before, this flies in the face of the immunity doctrine that is intended to protect officials from frivolous lawsuits. That goes double for lawyers who are merely giving requested advice, particularly about ambiguous legal doctrines, and who, themselves are not even engaged in the challenged activity.

As one of the panelists points out, the Left is going after mid-level people to paralyze the ability of the U.S. government to protect the people during emergencies. It is a matter of intimidation, and all on behalf of people who are committed to killing as many Americans as they can. The only bright spot in this, if it isn’t reversed by the Supreme Court, is that conservatives will get their turn to sue liberal lawyers and bureaucrats of the Obama administration for a failure to act aggressively enough if Americans are killed. I would start with whatever legal advice has been given that Americans cannot use drones to go after al Qaeda types if civilians are present.

What must not be allowed to happen is that the Left once again gets to define alone exactly what the rules of conduct are, with those rules being applied only to the detriment of the Left’s opponents. They must be held rigorously to their own standards. Only then will they learn the need for discretion and proportion.

The same thing happened some years ago with the “Ethics in Government” Act. As long as special prosecutors were appointed only to target Republican administrations, the Democrats were happy with the system and liberals rejected conservative attacks on the constitutionality of the law. It was one of the few times that liberals liked prosecutors. But when the law was used by Republicans against the Clinton administration, Democrats found their enthusiasm curbed and liberals suddenly saw merit in the constitutional attacks. Hence, the law was allowed to die.

This is turning into a fascinating game of “Beat the Clock.” Obama categorically promised immediately on his inauguration that the Guantanamo detention center would be closed within a year. Since then he has run into potential hurdles, loosely combined as “reality,” that threaten to derail the timetable. Indeed, underlings in his administration, though not Obama himself, have begun to make noises that the one year mark is only a goal if other considerations warrant closing the camp.

A significant hurdle is the transfer of the detainees. Most recently in the news have been 17 Uighurs who were caught in Pakistan after they left the terrorist training camps in the Tora Bora region of Afghanistan. The administration managed to “persuade” the “nation” of Palau (an American foreign aid dependency) to take 13 of them for $200 million of “assistance.” The remaining four Uighurs were to go to Bermuda, whose government accepted the detainees without consulting the British government, which is constitutionally charged with Bermuda’s security. The Obama administration curtly dismissed the role of the British, which has proved to be yet another in a series of diplomatic blunders by the Obama White House towards the U.K. It has also provoked a storm of controversy in Bermuda, whose government now faces a no-confidence vote along with a diplomatic row with London. So much for the vaunted talent of Obama to make other countries like the U.S.

The Palau government, too, has come under heavy domestic criticism. And, as expected, the decision has been ridiculed by Obama’s domestic critics.

Under the heading “No good deed goes unpunished” for Obama, now comes news that some of the Uighurs are unhappy about the choice of tropical paradise made for them with Palau. Seems that there are not enough Muslims for them there, or maybe it is the lack of Uighur fast-food restaurants. Perhaps they don’t like the fact that they will no longer have the free room and board that they had at Gitmo. 

When it rains, it pours. Congress has come down hard on the plan to close Gitmo. For one thing, Congress has stripped the war funding bill of all money that could be used to close the facility. For another, the bill explicitly prohibits detainees from being released in the U.S., prevents the transportation into the U.S. of Gitmo prisoners except under specified conditions, and prevents the release of Gitmo detainees to other countries except under specified conditions. It isn’t impossible to meet the conditions, but, at the very least it increases delays and may well prevent the release of some of the detainees. Moreover, many foreign countries who might take some Gitmo detainees want the U.S. to release some internally. With the Congress’s vote, this becomes a significant barrier. If the U.S. deems these people too dangerous to be sent into the geographically large, 300 million inhabitant U.S., why should a significantly smaller country incur such risk (unless those in charge are persuaded by $200 million)?

Ordinarily, the President ought to be given the discretion to handle such matters. But here the administration is pursuing a policy that has less to do with the safety of Americans than it has with pleasing the ideological preferences of the President, his inner circle, and a limited group of the political elite. The Congress’s vote reflects the preferences of the American people, if various polls are correct. Americans do not want Gitmo closed, and they don’t want the detainees released into the U.S. Perhaps it is this kind of slaughter by released detainees that gives Americans pause about the assurances of the human rights lawyers that these are all just lovable locals caught in the wrong place at the wrong time, who wouldn’t ever hurt Americans. On national security matters generally, the Cheney vision has routed the Obama vision and driven it from the field of debate.

A federal judge in San Francisco has allowed a suit by Jose Padilla, convicted of conspiring to aid suspected terrorist groups, against John Yoo, the author of memos on aggressive interrogations while at the Office of Legal Counsel in the Bush administration. The suit alleges that Padilla was “tortured” while in custody, and that the treatment he received violates the Constitution. He further claims that he was subjected to the treatment because Yoo drafted those memos that argued for the legality of the methods used against him, and that Yoo should have foreseen that such methods would be used as a result of his advice.

Let us leave aside the fact of Padilla’s conviction and the outrageous incongruity that this sociopath should get any money, especially from people trying to prevent the harm to the citizenry this guy was committed to doing. Let us also leave aside the fact that there is evidence that Padilla was involved in a plot to detonate a “dirty” bomb in the U.S. (although it is not clear how plausible the success of such an action was). Let us assume further that he suffered the treatment that he claims. Let us assume further that the treatment occurred within the parameters of facts that Yoo assumed when he wrote that such interrogations were legal. And, finally, let us assume that which is clearly not true, that such treatment was torture.

I do not understand the judge’s reported statement that government officials are responsible for the foreseeable consequences of their actions. Though one cannot be sure without seeing the whole opinion, if he believes that to be the sole requirement to show civil liability for government officials, I believe that mis-states the law for qualified immunity from money damage actions for official conduct (which this clearly was on Yoo’s part). I am assuming here that the judge is not going to impose this liability on a strict liability theory as to the legal issue itself. He must at least require that Yoo was negligent in his interpretation. Again, it is difficult to tell just looking at the report. Perhaps the judge even required a higher standard on the merits of Yoo’s opinion and used foreseeability to measure Yoo’s liability for the actions others took only if Yoo’s opinion on the law was reckless.

Even if Yoo was negligent in his interpretation of the law and his conclusions, he clearly wasn’t reckless. Nor did he lack good faith. Nor did he require, direct, or control anyone to act, so the facts are outside the bounds of any supervisory liability. Nor has a conspiracy be alleged. All of these theories of liability require more active participation or a heightened state of mind beyond mere “foreseeability.”

If the court is correct, then other government officials who enforce, administer, or interpret the law should be held liable for their negligence and for foreseeable results. For example, what about judges who give probation, or parole boards who give early release, to criminals who commit crimes during the time they could have been in prison. Recidivism, after all is foreseeable, and the judge’s grant of probation should be reviewed for negligence. I would like to hold Supreme Court justices liable who create previously-unheard-of constitutional rights for enemy combatants who must then be released due to the difficulty of proceeding against them, and who return to the battlefield to kill Americans. I would like to extend this to executive personnel who participate in extraordinary rendition or even approve the official policy, such as those in the Clinton, Bush, and Obama administrations. We can start with current CIA chief Leon Panetta, who approved was in charge of such renditions in the Clinton administration. In fact, I’d like suits based on such a foreseeability principle against defense lawyers who make arguments that secure the release of accused terrorists on legal technicalities, since it is foreseeable that the released detainees will return to the battlefield. After all, if we’re going to impose liability in the administration of policy, it shouldn’t just be those looking out for the safety of the public who should be hamstrung by threats of money damage actions under so encompassing a concept as “foreseeability.” And, of course, foreseeability should be applied in other areas, as well, such as monetary policy that results in inflation and hurts people’s financial position.

I don’t see that happening. Yoo is hardly the linchpin in the interrogation of suspected terrorists. It would be difficult to hold him liable without also going after those who proposed the policies and asked for his opinion (which may be what the plaintiff’s lawyers unltimately want to do) and those who actually made the decision to interrogate Padilla. Finding Yoo liable would open up all of them to liability, as well as all future government lawyers giving advice in murky areas of the law.

This is only a district court opinion, so it may well be that the government will appeal. Having taken over Mr. Yoo’s defense, they owe him the duty of effective representation. Although the Obama administration politically may well get some satisfaction from the plaintiff’s principle of liability for Yoo and others of the Bush team, the career lawyers in the administration have to be concerned about so low a bar. In the end, I don’t see the courts setting such a low bar. That may happen before or after a decision on the merits in the trial court. Perhaps the trial judge wants to get at the underlying merits of the “torture” argument and will find that Yoo’s memo was correct on the law, thereby avoiding any liability on “foreseeability.”

One has to wonder why the lawyers are pursuing this. There may be personal interests involved. I think they are part of a collection of “human rights” lawyers and law professors who just do not like John Yoo. His position as a prominent constitutional law professor only adds to their dismay. Constitutional law is supposed to be the province of the liberal elite, not some conservative bomb-thrower. It disturbs the “force,” as I can attest. I have seen an example of such a professor in action. Perhaps they accept that they will lose on the merits but want to establish the principle of a low barrier to legal liability for future cases against other targets. Or maybe this is just a way to get publicity for the next AALS or ABA convention. Who really knows? After all, Padilla is hardly a sympathetic plaintiff for whom one’s heart bleeds.

Looks like the bribes and pressure diplomatic efforts of the administration have paid off in the release of the Uighurs to Palau and Bermuda. At the very least in the case of the former, the skids were greased by $200 million, some of which actually might not end up benefiting the community and not in the pockets of various local politicos.

But why didn’t this transfer of harmless folks maliciously seized by their enemies and turned over to the U.S. for unconscionable detention at Guantanamo go more smoothly? After all, the Bush administration tried to transfer them, as well. Seems like other countries wanted the U.S. to take some of them as a sign that these people, having fled to the mountains of Pakistan when the al Qaeda camps at which they were training in Afghanistan (where they had contacts with senior al Qaeda types) were attacked by the U.S., really were tame and peaceful folks who would not endanger the security of the potential host country. When the Obama administration fought a court order to release them into the U.S., and when local communities made known their concerns about letting loose trained terrorists in their midst, the other countries followed suit. If they were not safe to release in the U.S., which they claimed not to be the target of their jihad, why would they be safe to release in Germany, France, or the U.K.? Or in Palau, as that part of the population who are not direct recipients of the American “incentive bonus” make clear.

On the other hand, the Chinese (the proclaimed target of the Uighurs’ terrorism training) continues to express acute interest in getting their hands on these folks. And I don’t think that the Chinese will demand any U.S. monetary “assistance.” (They already own enough dollars.)

The Obama administration’s profession of a lack of risk in loosing the Uighurs also lost credibility when the administration ordered travel restrictions to be put on the released detainees. They would not be permitted to enter the U.S. without specific prior consent.

This article by Thomas Joscelyn details the exotic particulars of some of the Uighurs.

Despite meaningless changes in vocabulary, President Obama is continuing most of the important aspects of the campaign against Islamic terrorists set in place by the Bush administration. Here is a roundup of some of the significant non-changes from the Bush administration.

More and more Democratic politicians oppose closing Guantanamo and transferring detainees to the U.S. So, a Democratic Congressman (without consultation with the White House, of course, though he is a political ally of Obama) floats a trial balloon to keep Gitmo open. With more transparency and accountability, naturally. At least in theory.

Then there are those pesky Uighurs. The administration has taken the position in court that Uighur detainees ordered released by a trial court have no right to enter the U.S. in contravention of immigration law. The Uighurs were captured in Pakistan and have admitted to training at terrorist camps in Afghanistan, but against China, not the U.S. The order to release them was reversed by an appeals court, but they have petitioned the Supreme Court for review. The Bush administration agreed that they were not enemy combatants, but the detainees’ terrorist links mean that they do not want to return to China to face prosecution and that other countries are not willing to take them. The Obama administration has decided to laud the amenities at Guantanamo and to argue that Congress’s refusal to allocate funds to close the detention center prohibits the Uighurs relocation to the U.S. That proposed relocation has caused considerable dismay in the communities that have been mentioned as possible places. Despite their moral posturing about Guantanamo, foreign countries are no more enthusiastic about taking any detainees than are American communities.

The Uighurs have not taken kindly to the administration’s approach and have compared the U.S. unfavorably to Hitler and equated Obama with the Chinese Communists. While one may sympathize with the latter comparison, the obvious answer would be to put the Uighurs to the test. Return them to China and see whether they maintain their views. It now looks that the Uighur case may be moot by the transfer of them to, wait for it, the great “nations” of Palau and Bermuda, for a hefty sum of money. These are both more or less tropical islands, perhaps to replicate the ambiance of Guantanamo to which these detainees have become accustomed, though without the free exercise yard, TV, or library. Remember the Left’s (including various Senators’) insults of the allies that helped the U.S. in Iraq as the “coalition of the unwilling,” contrary to all evidence? Palau and Bermuda are the “coalition of the bribed.”  As an interesting side note, the transfer to Bermuda has sparked a row with the U.K., which is responsible for security matters for the island and which already feels slighted by various diplomatic faux-pas of the Obama administration.

Indeed, in some ways the administration may be moving beyond the Bush-Cheney-Rumsfeld axis of evil (in the eyes of the Left). Obama is thinking about establishing a preventive detention system for terrorism suspects. “President Obama told human rights advocates at the White House on Wednesday that he was mulling the need for a ‘preventive detention’ system that would establish a legal basis for the United States to incarcerate terrorism suspects who are deemed a threat to national security but cannot be tried, two participants in the private session said.” These are not likely passing thoughts disclosed during idle chatter while the Attorney General was present. The human rights advocates found it stunning to have to fight this issue with Obama, when the Bush administration never moved that far.

This goes beyond the current Guantanamo detainees for whom Obama is mulling similar indefinite detentions without trial. On the other hand, he wants to move them from Guantanamo to the U.S., which might create additional constitutional problems.

And then there is the return of military commissions for Guantanamo detainees. Obama had suspended such proceedings, with an eye toward closing Guantanamo and having the detainees tried in federal court. The promised changes in procedure are insignificant, at best, and, more likely, irrelevant, as former federal prosecutor of the “blind sheikh” Andrew McCarthy explains. The usual suspects, such as defense lawyers and academics, also remain unpersuaded that there is anything essentially different about the Obama proposals from the practice under the previous administration.

There is also the distinct possibility that the administration will defend the NSA’s warrantless surveillance of phone calls between people in the U.S. and suspected terrorists abroad. Incidentally, the FISA appeals court has, in opinions by two different judges, recognized the President’s inherent constitutional power to conduct warrantless national security surveillance.

Speaking of broad executive power that Obama, his Attorney General, and other Democrats once condemned, Ed Whelan of National Review’s Bench Memos gives examples of the continuity between Bush and Obama on executive signing statements.

Moving from continuity in national security and constitutional matters to military strategy, does anyone in the media remember Obama’s distortion of McCain’s position during the campaign to keep troops in Iraq for years to come rather than have the withdrawal, and a rather precipitous one at that, favored by the nominee and many of his Democratic Party allies? Now comes word that the military may need to keep combat troops in Iraq for ten years.

I applaud many of Obama’s moves in these matters, though some, such as the handling of the Uighurs, reek of political manipulation and desperation. I also appreciate his ability to “sell” these policies by adopting, for the most part inconsequential, changes. But I am not hearing the moaning and gnashing of teeth over these policies from most of the academic and media-centered Left that was so prevalent during W’s administration.

Sometimes I read an article and think that it captures so thoroughly some defining aspect of our society. This article by the author, journalist, and military veteran Ralph Peters does just that. Though the article is long, it doesn’t drag. In fact, I have made some of the same arguments as does Peters, yet I still found his presentation fresh.

Peters chides us for our effete, narrow, overly-legalistic, and media-driven manner of waging war. He constrasts this with the views of our enemies, state as well as non-state actors, whose views are much more militantly result-oriented. This difference is, to Peters, a matter of grave concern with potentially terminal consequences for our society. He blames this erosion of our will to fight in part on the usual suspects, such as the academic and other elites. The media come in for a strong pen-lashing. But, ultimately, the blame lies with us. If we did not choose to be passive, nothing that professors, lawyers, or journalists did could put us in this position.

Contrasting our approach to war with that of the Islamist terrorists, Peters writes, “We become mired in the details of minor missteps, while fanatical holy warriors consecrate their lives to their ultimate vision. They live their cause, but we do not live ours. We have forgotten what warfare means and what it takes to win.”

Peters attributes this to several reasons. While all have merit, I find several particularly apt. Peters comments that the professionalization of the military has contributed to a disconnect between the population at large and an understanding of how the military operates. I find this to be an accurate assessment of our lack of civic sophistication. It is one reason why I believe that a fairly-run system of universal military service is more consistent with republican principles and well-being than is a volunteer army. An example of this civic ignorance is the public’s response to the federal effort during Hurricane Katrina. Perhaps more fairly, the ignorance was displayed even more blatantly by the media. But the public’s views on such matters are shaped by media coverage. The public expected the military to ride in like the cavalry in an old Hollywood western movie. Leaving aside the political and constitutional niceties that prevented immediate federal invasion of a state even in the aftermath of a disaster, speed is not the military’s forte. Plodding organization, represented by the phrase, “Hurry up and wait,” is. That’s why General Russel Honore’s dismissive comment to the media, “Don’t get stuck on stupid,” struck such a chord.

Peters also points to policy-makers who were seduced by defense contractors and academic theorists to believe that warfare can be quick and bloodless. I agree with Peters about the current myth of sanitized warfare. I think that he is partially correct about the American fascination with military gadgetry and technological wizardry. The use of “smart” weapons obscures what Peters calls human psychology and 5,000 years of precedents, that is, fighting spirit and the terrible swift sword of bloodshed in warfare. But technology and material superiority has long been the mark of American warfare, and never more so than now. But there is another aspect to this, which is the public’s child-like attention span. Warfare in the age of video games, instant replay, and sports events timed to fit commercials and limited television time slots tests the public’s patience if it goes on past weeks or, at most, months. I remember the media fretting about the beginning of a “Vietnam quagmire” three days or so into the invasion of Iraq, when the military columns had to stop temporarily to consolidate supply lines that had become too stretched because of the rapidity of the advance. The military’s conquest of Iraq and the battle of Baghdad were spectacular successes and by no means a sure thing. I also remember George W. Bush warning after the capture of Baghdad that there would be many difficulties ahead and that there would be further bloodshed. Other administration officials subsequently echoed that sentiment. At the time I remarked to my wife that those words would not be remembered in the future if things got difficult. War weariness is a common and understandable human emotion. It always happens. The historical record of the Civil War, for example, is rife with such weariness, in public speeches, private correspondence, and political agitation. But ours sets in at record pace.

Peters also blames what might be termed the feminization (or, more colloquially, “wussification”) of America. As Peters characterizes it, “a child’s bloody nose is no longer a routine part of growing up , but grounds for a lawsuit.” Our time really is the “era of good feelings.” To that end, we emphasize dialogue and talking “without preconditions,” even if the other side is not interested. Talking only works if both sides are in the same game.

He places much of the blame for the American collapse of will on the weakness and willful ignorance of the intelligentsia. I fully agree with this. There is always a split and tension between the elites and the masses in relatively egalitarian societies. There is a reason why Plato in the Republic had Socrates define the “just society” as one of stability where the classes are in balance and everyone is content with his lot. Such divergences can be destructive. There is today a serious disconnect between the Americanism of the masses, that is, those to whom Obama has referred as the bitter gun and Bible-clingers, and the elites with their multiculturalism-inflected relativistic transnationalism. This is a cultural rot that does not bode well for a long-term struggle against an ideologically militant, religiously inspired, ruthless and determined enemy or against states with fewer scruples about how to fight wars.

Finally, Peters disposes of some trite bumpersticker slogans that currently pass for ethical thought. One set is, “War is not the answer,” or, “Give peace a chance.” Peters dismisses these fantasies by pointing out that the world in which we actually live “remains one in which war is the primary means of resolving humanity’s grandest disagreements, as well as supplying the answer to plenty of questions. Another is that, if we fight as fiercely as our enemies, we will “become just like them.” He points out the historical precedents of Japan and Germany in World War II and asks whether American bombings of their cities turned the U.S. into Japanese Imperialists or National Socialists.

Truly an outstanding and intellectually-powerful article.

The Patriot Act was a lightning rod for anti-George W. Bush agitation. Though it wasn’t clear that anyone at the time had read the Act’s provisions before voting or commenting on them, the Act really did very little as far as the rights of ordinary citizens are concerned. But, by amending the FISA statute and allowing easier wiretapping of terrorism suspects, it helped break down the infamous “wall” between CIA and FBI that Clinton functionary Jamie Gorelick had been instrumental in building and that had likely contributed to the failure to “connect the dots” about the 9/11 attackers.

If this analysis is correct, the Act may well have helped prevent the NY City bomb plot from coming to fruition.

Looks like the administration is getting desperate to meet its timetable to close Gitmo. One of the hurdles has been the failure of other countries to take a group of Uighurs, even those countries with a Uighur community, such as Albania, Germany and Australia. And the U.S., with its own Uighurs, won’t take them because the local communities affected by such relocation have gone ballistic at the proposal. Why? These Uighurs are Muslim separatists from China who were training at a terrorist training camp in Afghanistan. But, not to worry. The federal courts ordered them released because, while they are trained terrorists, they are only terrorists against the Chinese. As such, they could no possibly be a threat to anyone else, right? Even though they have some robustly negative opinions of the U.S., as well.

Well, the specks of land in the Western Pacific known as Palau have agreed to take the 17 Uighurs—for $200 million. That’s $12 million per. I would have given the administration a 20% good citizen discount and bought these guys mansions and a lifestyle to make them forget jihad. I see a number of problems from this precedent. First, it sets the minimum price for the relocation of any other Gitmo detainees at $12 million each. The other countries Obama is trying to pressure, that is real countries such as Germany and France, will demand at least the amount given to Palau.

Second, what if China, which is practically Palau’s neighbor (certainly when compared to Gitmo), decides to send in its agents to capture these people and show Palau what’s what? Will the U.S. be an accessory for placing the detainees in such an obviously dangerous place, or will the human right types and the media give Obama a pass because, well, he is Obama? Or is that merely a rhetorical question?

Third, what if the tropical paradise of Palau does not change the minds of these Uighurs from violent jihad? The Philippines are a mere 500 miles away, and they have their own violent Muslim separatists, the Moro. Would it be that difficult for the two groups to connect, to the disadvantage of both countries? Fourth, Palau relies heavily on tourism for income. In choosing one’s vacation spot, one may decide that being on a small island where 17 out of only 20,000 inhabitants walking around are known terrorists has the potential really to ruin one’s vacation. On the plus side, due to their appearance these Uighurs ought to be easy to spot.

Since we’re on the topic of foisting unwanted and dangerous persons whose presence is hurting our progress to Obama’s vision of ourselves, how about getting some other impoverished nation to accept our spent nuclear fuel from reactors? That supposedly is the major “obstacle” to the use of nuclear energy on a massive basis. Use of nuclear could reduce our dependence on imported oil, which, supposedly, is enabling terrorism. I remember that a few years ago Arianna Huffington made the argument that SUV drivers are supporting terrorism. I believe she made that argument from her 7,500 square foot air-conditioned house. Or maybe from one of the private airplanes in which she likes to fly.

When the Justice Department Office of Legal Counsel’s “torture memos” were disclosed beginning last year, the media created a cast of villains and heroes in the tragedy of the memos’ writing. The villains have been Professor John Yoo, (now-Judge) Jay Bybee, and, to a lesser degree, Stephen Bradbury. Though the Obama administration has backed off from criminal prosecution of the memos’ authors, they have floated the proposal to let state bar licensing authorities go after the first two. Some of the more rabid liberals want more drastic action, such as the firing of Yoo from his professorship and the impeachment of Bybee. None of those proposals is likely to go anywhere.

The heroes have been primarily (now-Professor) Jack Goldsmith, Dep. A.G. James Comey (who also made a name for himself opposing the NSA’s warrantless wiretapping program), and Daniel Levin. Goldsmith was the OLC head who withdrew Professor Yoo’s memo that set a high imposition of physical pain to constitute torture, and who also temporarily banned waterboarding, until a further review reinstituted it. Comey tried to intercede with the Attorney General against the use of intense interrogations.

Now, evidence is emerging, through the New York Times, no less, that the roles were much less clear-cut. Goldsmith approved of another 2002 memo, also probably written by Yoo, that left intact all the techniques other than waterboarding. Levin wrote most of the 2005 Bradbury memo that reaffirmed the legality of all of these interrogation techniques. Comey is on record agreeing with the Bradbury memo. The Times correctly states,

“The lawyers had to interpret a 1994 antitorture law written largely with despotic foreign regimes in mind, but used starting in 2002, in effect, as a set of guidelines for American interrogators. The law defined torture as treatment ’specifically intended to inflict severe physical or mental pain or suffering.’ By that standard, a succession of Justice Department lawyers concluded that the C.I.A.’s methods did not constitute torture.

“The only issues that provoked debate were waterboarding, which Mr. Goldsmith questioned, and some combinations of multiple techniques, which Mr. Comey resisted.”

Both Bybee/Yoo and Bradbury also raised concerns that multiple techniques used together, including when used together with waterboarding, might cross the line to torture because of the severity of the mental pain inflicted.

One wonders why the Timesis promoting the theme of how common and widespread within the Justice Department the understanding about the limited meaning of the torture statute was. One is curious about the sudden recognition that everyone agreed that the intensive interrogations, while aggressive, fell short of torture, at least within the parameters for questioning set out by the CIA. Is this laying the groundwork for the Obama administration’s eventual use of such techniques? After all, Obama has renounced torture; he has ordered that waterboarding not be used; but he has reserved the right to order aggressive interrogation techniques be used.

With the Supreme Court’s ill-advised opinions that overturned centuries of Anglo-American legal practice and gave foreign unlawful enemy combatants and other terrorists kept at Guantanamo access to habeas corpus to challenge their confinement, and with the firestorm over detainee interrogations by the CIA, the Obama administration has been looking for ways to detain and question terror suspects. Obama ostentatiously has taken several steps to burnish his credentials as the anti-Cheney, by ordering the closure of Gitmo (we shall see); prohibiting waterboarding (which W already had abandoned after 2003); prohibiting any interrogation beyond the ambiguously milder questioning permitted under the UCMJ (though with caveats and reservations); closing “secret” CIA prisons (well, at least for long-term detention); and abandoning military commissions (except when they are needed).

But liberal posturing does not adequately address conservative facts of life. There is still the need for detention and interrogation of suspects without meddling from civilian courts whose rules of evidence and adherence to traditional constitutional rules applicable to Americans and those others within U.S. territory make them unsuited to the task. One way to deal with that is to keep people at American bases overseas (such as Bagram in Afghanistan), rather than at Gitmo. Obama has continued that, but at least one lower federal court sees Bagram as just another Gitmo. This augurs poorly, in light of the current Supreme Court’s predilection to expand its powers outside traditional boundaries by interfering in executive decision-making. So, more permanent fixes are needed, where the extraterritorial ambitions of American courts are likely to meet resistance.

Enter rendition. While the Bush administration’s extraordinary rendition policies were roundly attacked, not surprisingly, the U.S. relies more on foreign intelligence services under the current regime. So much for the administration’s vaunted “transparency.” That is the inevitable result, though. When relatively transparent procedures are prohibited, yet there remains a need for those procedures, alternatives will be less transparent. But alternatives will arise. Just think of campaign financing. Raising political cash, which the legendary former California Assembly Speaker Jess Unruh called “the mother’s milk of politics,” has become more convoluted and opaque the more efforts are made to “reform” the system.

As to detention and interrogation of detainees, if those are performed by “allies” in the Middle East (Egypt comes to mind), there are two immediate problems. Those intelligence services may not have our best interests at heart and the intelligence obtained may be more unreliable than if the U.S. maintained control. The other is that those countries’ perceptions of permissible interrogation techniques and conditions of confinement may not complement our professed delicate natures. You know, we outsource those jobs that Americans won’t do. The Obama administration’s CIA, as Bush’s before, insists that it assures that it is unlikely that there will be torturous conditions or techniques used while the detainee is in the foreign service’s custody. It does that by asking the foreigners not to do that and getting their agreement. It is not clear exactly how many winks and nudges accompany such a exchange.

As to the value of the information, the CIA says that it built up enough evidence under the Bush administration to have a good idea whether the information developed by the “allies” is truthful. Moreover, the CIA only outsources interrogation of lower-level detainees. Yet information goes stale. Higher-value intelligence assets are still detained and questioned by the CIA. But where? Though the article doesn’t say, this is where Obama’s clever obfuscation about closing only CIA secret prisons used for “long-term detention,” allows use of such facilities for short-term detention for interrogation.

The response from the “human rights community,” while reflecting displeasure, is remarkably muted. Perhaps that has something to do with the occupant of the White House. Bush’s extraordinary renditions (inherited at least from Clinton, by the way) are to be roundly condemned. But Obama is merely engaged in rebuilding American standing in the world by reaching out to other countries, though in this case by enlisting the efforts of allies against the terrorists in a more questionable manner.

Before reversing himself in the face of an outpouring of public criticism, President Obama wanted to release pictures of prisoner abuse at Abu Ghraib uncovered by Army investigators. The always dependable ACLU had sought these pictures to….well, it’s not clear why, unless it is to smear one of the liberal elite’s favorite targets, the U.S. military.

At the same time, ACLU lawyers are in the forefront of calling everything connected to the interrogation of high-value terrorists “torture,” legal definitions and common sense be damned. While doing some research, I came across this article from 2004, which discusses the kinds of actions done by Saddam’s people at Abu Ghraib. I have not been able to find the original Saddam torture video itself. It seems not to be accessible on the AEI website. But the text conveys enough of the brutality.

In any event, while our media have always been quite pleased to publicize all images that make the U.S. military look bad (at least during the Bush administration), the media were quite uninterested in covering the AEI event. Quite predictably, then, the media were uninterested in showing the video, just as they refused to show videos of the execution of Americans by Muslim terrorists. Too graphic and incendiary for public consumption, they said. Just as those media types who like to congratulate themselves for their bravery in “speaking truth to power” refused to publish the controversial Danish “Muhammad cartoons” that resulted in world-wide riots and death threats by Muslims a few years ago. But they’re happy to publish offensive and contemptuous anti-Christian “art.” There’s a limit to journalistic bravery, after all. 

This is a video of the AEI presentation where victims of Saddam’s torture speak about their experiences.

I mentioned this during the campaign. Odd how in 2004 Bush and Cheney’s military records became a central focus of Democrats who thought that, for once, they had a “war hero” on their ticket. Bush’s “mere” Air National Guard service and Cheney’s draft deferments became for the Democrats the single-best measure of character. Until Kerry was exposed by the Swifties for the blow-hard opportunist that he is. Edwards’ lack of military service was conveniently buried. Of course, when Bill Clinton, who had avoided even National Guard service by prevarications to the draft board (what, Bill Clinton prevaricate?), was running against two decorated war heroes in 1992 (George H.W. Bush) and 1996 (Robert Dole), even to mention military service was regarded by Democrats as the depth of perfidy and lack of character. Democrats “explained” the difference by claiming that, in ‘92 and ‘96, there was no war (Bosnia notwithstanding). Once a war starts, the candidates’ military records become crucial (even for the incumbent who had been guiding the war effort already).

In 2008, with another Republican decorated war hero running for Commander-in-Chief against Democrats with non-existent military background, the Democrats and the media reverted to 1990s form. Odd, that, since the same war conditions on which they had relied in 2004 to trumpet Kerry’s allegedly superior military brilliance was still ongoing. Any mention of Obama’s (and Hillary’s, Edwards’s, and, later, Biden’s) lack of military experience was unfair and probably racist. Indeed, Leftie Senator Tom Harkin of Iowa (whose own attacks on the military record of W had come to naught in 2004 when it was discovered he had vastly exaggerated his Vietnam “war” experiences), opined that it was better to have someone like Obama than McCain, who would be too set in a military way of thinking. The media’s obsession in 2004 with Cheney’s five draft deferments gave way to utter silence about foreign relations and national security “specialist” Joe Biden’s—five draft deferments. Hillary was ridiculed by the press for her explanation that she visited a recruitment office once in her 30s and thought of joining, but was dissuaded by the recruiter. Right. But the reason the press pilloried her was because by then they had all gone in the tank for The One.

Now it turns out that the Community organizer-in-Chief has no use for people with a military background (except as Defense Secretary and as head of veteran’s affairs). Obama’s high level appointees come predominantly from law schools, not the military. Given the administration’s approach to fighting “lawfare,” as the transnational legal elites nesting in our law schools favor, this is not a surprise. But it is not good news for Americans; of course, our enemies may feel relief, which will raise America’s standing abroad. After all, isn’t the President’s job under the Constitution is to make sure that the world feel good about the U.S., even if that may reduce the quality of life—or life itself—for Americans? That’s got to be somewhere in the penumbras of Article II and discoverable by a judge with the proper empathy for those who have long suffered from American power and over-consumption.

If you like “Darth” Cheney’s defense of national security and his take-down of President Obama, you’ll love his daughter Liz. Below are some examples. The first is a response to Obama’s speech.

In the second video, she exposes Norah O’Donnell of MSNBC as a partisan hack spouting Democratic campaign fantasies, while explaining how the enhanced interrogation programs worked in reality:

The third is her pointed and accurate attack on the Obama administration’s destructive actions regarding the release of the Abu Ghraib photos (since reversed by Obama) and the criminalization of legal and policy differences:

Liz Cheney is not just a very bright, articulate, telegenic and formidable debater, she is an experienced Washington insider and mother of five. I’d love to see her run for political office soon. If I can’t have Dick Cheney as President, his daughter will do fine.

As I have posted before, and as the OLC memos made abundantly clear, a crucial factor in determining whether an action violates the torture statute is the actor’s intent. Even if the actor engages in conduct so outrageous that it fits within the ill-defined but narrow categories of serious bodily harm or long-term mental injury, he or she is not criminally liable, unless the actor intended to produce that harm. The intent, as has been clearly established by the courts and under general criminal law, is a “specific” intent. The actor’s state of mind must be sufficiently focused on the goal of producing such harm, for example, as a form of punishment. The state of mind must not be to achieve some other goal, such as eliciting information, even though a reasonable person would conclude that the means used would likely produce such physical or mental harm. Professor Yoo and others made that point clearly and convincingly in their memos.

Now comes Attorney General Holder. As I posted previously, Holder already expressed support for enhanced interrogations in 2002 in an interview, when it behooved Democrats to be seen as forceful in protecting Americans. Since then, Holder has generally followed the party line and described controlled waterboarding and similar techniques as torture. This, of course, has become the throw-away emotional definition and has characterized these methods in the public understanding (though a majority of the public supports waterboarding, nevertheless). But that isn’t the legal definition.

Andrew McCarthy of National Review catches Holder admitting that the crucial issue of what separates torture from, say, waterboarding as a training exercise, is the intent of the actor. Yet Holder then confuses general intent and specific intent, which one would not expect the Attorney General to do. McCarthy concludes that Holder’s concession about intent, all the while as he maintains that waterboarding violates the torture statute, shows that either Holder has not read the statute or is willfully misstating it.

Indeed, the difference between general intent and specific intent in the torture statute was emphasized by the Third Circuit Court of Appeals last year (with language drawn straight from the Justice Department’s brief in the case) in a case involving the deportation of Haitians who feared torture in Haiti, and made by Holder’s own Justice Department in a filing with the Sixth Circuit Court of Appeals just three weeks ago in its opposition to John Damjanjuk’s fight against extradition to Germany. Though those cases involved interpretation of the Convention Against Torture, the language of the convention and the statute, and their respective interpretations, are alike.

Nor is this a novel interpretation. The Third Circuit in 2005, in the deportation of the wonderfully-named Napoleon Bonaparte Auguste to Haiti, determined that the specific intent requirement was very difficult to meet. As The New York Times described the court’s conclusion:

“Under Haitian policy, federal and immigration courts have found, deportees with a criminal record are placed in indefinite preventive detention, without food, water or toilets, in cells so crowded that they cannot lie down; prisoners are subjected to police beatings, and sometimes are burned with cigarettes, choked, hooded and given electric shocks. Some have died in custody.

“But is that tantamount to torture under the law? The answers have varied in the last four years. The Third Circuit panel, while likening the conditions to ‘a slave ship,’ ruled in January that indefinite detention in Haiti did not constitute torture because Haitian officials intended the detention to prevent crime, not specifically to inflict severe pain and suffering amounting to torture.”

The intent has to be very specific, indeed, according to these cases. And the conditions of confinement alleged are a far cry from carefully-controlled waterboarding for information.

And the beat goes on. The Obama administration has argued, as the Bush administration before it did, that it has the authority to detain foreign enemy combatants indefinitely, without charges or trials, at Guantanamo. The U.S. district judge hearing a challenge to that claim, sitting on the FISC (Foreign Intelligence Surveillance Court), agrees. The AUMF (Congressional authorization to use military force) of 2001 was previously interpreted by the Supreme Court to permit detention even of American citizens who were enemy combatants. Traditional laws of war permit such detention to be for the duration of hostilities or until the detainee no longer poses a threat. These are not punishments, but merely protective detentions.

The court did, however, limit this to actual Taliban, al Qaeda, or al Qaeda affiliates, their combatants and participants who planned or aided the 9/11 attacks, and those who harbored them. This means that those who “supported” such actions more tangentially than these more direct participants may not be held in this manner. Presumably, they can still be tried in appropriate civil or military courts for whatever crimes they have committed.

This ruling further clears the way for Guantanamo to remain open.

The Supreme Court has rejected a suit for monetary damages brought by a 9/11 detainee against the FBI director and the attorney general for allegedly being responsible for his confinement under highly restrictive conditions. If proved, the facts show a very harsh detention. The detainee eventually was cleared of suspicion of being connected to terrorism, but plead guilty to immigration fraud. He was sentenced to prison and eventually deported to Pakistan.

The pattern here is clear. The attorneys are not particularly interested in the fate of this particular small fish. Instead, their agenda is to get the Court to recognize broad personal liability based on a command or controlling persons argument to go after Bush administration officials for whatever happened at Guantanamo. Presumably, whether or not suspected terrorists are innocent, the goal is to allow them (and the attorneys) to recover plenty of damages to allow them and their families a good life style, while also inhibiting officials from vigorously prosecuting anti-terrorism efforts.

The Supreme Court did not bite here. However, the Court also did not clearly reject the bait. Indeed, the suits can still proceed against the lower officials who actually administered the detentions. Also, the theory of liability against the higher-level officials was not rejected, just the argument that the complaint was factually adequate to state a claim. The complaint could be amended, though, in reality, I think that’s doubtful. And, it bears noting, four justices dissented even from this limited rejection.

Setting up liability of officials for such national security responses is unwise. If Congress believes that the detainee was treated unfairly, Congress can vote a private bill of compensation. Placing the burden on individuals, even if there is indemnification and even if the government pays for legal representation, lessens the vigor of those expected to deal with national security threats. Rather, I’d like to see personal liability for judges and attorneys whose actions weaken national security by emboldened terrorists if there is another attack on Americans in the U.S. or, if done by court-released detainees, on Americans anywhere.

Some interesting poll results from CNN confirm what other polls have shown, as well. A majority of Americans support the use of waterboarding. Indeed, they support it even though a substantial majority believe (incorrectly) that it is torture. Even more interesting is that a substantial majority oppose the investigation, by Congress or otherwise, of Bush administration officials over interrogation techniques. True, 2/3 of Democrats support such investigations. But even that number is low, meaning that even among the Democrats 1/3 see at least the political danger that comes from such a precedent. The rest of the Democrats are the true believers, the fundamentalist left-wingers, some of whom nest among the faculty at my school.

With the ongoing Nancy Pelosi CIA-briefing fiasco, and the numerous Democratic voices that supported torture or waterboarding at the time when it seemed politically expedient to do so, make it likely that any enthusiasm for such investigations among Democratic pols will evaporate.

In last year’s Boumediene decision, the Supreme Court overturned centuries of doctrine and practice to create a right for suspected unlawful enemy combatant detainees held outside the United States to sue for habeas corpus to challenge their detention. Following that decision, a court ordered that Boumediene be released. The Bush administration took the position that even a court order to release would not be obeyed unless and until the executive deemed it safe to do so. In yet another continuation of W’s policies, the Obama administration has stayed the course on that claim of executive prerogative.

Boumediene, as an Algerian, should be returned to Algeria. But the Algerians, understandably, do not take kindly to a suspected terrorist returning to Algeria. The U.S. is unwilling to return him to Algeria, as American officials are concerned that he would be greeted with interrogation methods somewhat more robust than anything described in the OLC “torture memos.” So, now, the administration has received consent to send Boumediene to France.

As a conservative, I am becoming a fan of Nancy Pelosi. I want her to keep holding press conferences. Especially about what she knew about interrogation of terrorists and when she knew it. As she keeps tweaking the facts when her previous explanations are debunked, her performances become more entertaining and the substance of her position more convoluted. Then, when not just the Republicans but her fellow Democrats begin to disparage her claims, what does she do? She ignores the first rule of holes: When you’re in one, stop digging. Instead, she accuses the CIA of lying, and does so in a press conference that makes it obvious she is reading from talking points that have been drawn up for her and which she hasn’t quite mastered. And, as the Hot Air post makes clear, her “explanations” and accusations only get her into a deeper hole.

Needless to say, this is not likely to calm the roiled waters for her. Here is Senator Joe Lieberman’s amused response that the CIA tells him the facts. And here is Senator Christopher Bond’s common sense rejoinder that the CIA doesn’t call briefings to say what they will not be doing and haven’t done. Now, one can say that these are Senators and, as such, are not predisposed to protect the House Speaker. Moreover, they are not nominally, at least, Democrats.

But here is House Majority Leader Steny Hoyer. OK, maybe Steny has an axe to grind, as San Fran Gran Nan defeated Hoyer for the Speakership and, as second in command, Hoyer likely would become Speaker were the botoxed one to resign.

But here is fellow California Democrat, ex-Congressman, fellow ethically-challenged pol, and current CIA director Leon Panetta. OK, maybe he is trying to defend turf. Then there is this discussion about the contents of a DNI report.

Is it likely, though, that all of them, plus then-Congressman (and later CIA director) Peter Goss who also was present at the September, 2002, meeting, are lying or unfamiliar with CIA briefings, while Pelosi is telling the truth? Indeed, Goss insists that both he and Pelosi asked the CIA whether they were doing enough to get the information. Would a report prepared by the Obama administration’s Director of National Intelligence that contradicts Pelosi be lying, as well? Why? Various others, Democrat and Republican who were not leaders of the Intelligence Committees, were informed at other times, so only Pelosi didn’t get the same info?

Oh, and here she is herself in May, 2002, talking about the CIA’s problems with getting info out of Zubaydah initially.

Even accepting what appears to be her claim, she admits that she was informed by an aide in early 2003 that waterboarding had been used. And in one of her earlier explanations, she admits that, at the very least, she was told in 2002 that waterboarding was on the table but hadn’t yet been used. Why she thinks that to be an excuse is incomprehensible. At least arguably one can say that if one is told about a past practice, it is of no use to object to or disclose this. After all, what is done is done, and disclosure might hurt national security. But if one is told that such methods might be used in the future, and one is dead-set against those methods, that’s the time to object. Her own explanation damns her. That may be why, in desperation, she is doubling down and now accuses the CIA of outright lying. Most recently, she has backed down and made the incomprehensible claim that the CIA (who did the briefing) didn’t mislead her, but the Bush administration did. Huh? Is she suggesting that the CIA said that they were waterboarding and described what intel they got, but that some unnamed Bush administration official told her not to believe the CIA’s claim, but that that official in turn was lying when he told her that the truth told her by the CIA was really a lie? Can anyone still follow these twists and turns?

I am not a fan of the CIA. I think they are a turf-protecting, arrogant, politicized institution that is a danger to republican government. The higher echelons, in particular, seem to think that they are a parallel policy-making institution that will leak like a sieve and involve itself uninvited in political decisions. I think that the CIA did a great disservice to the Bush administration with its faulty intelligence evaluations (and I’m not talking about WMD) and, worse, its incessant leaks that undermined the administration once the CIA was getting heat. They have a history of this, including their failure to have adequate human assets on the ground (which is substantially the fault of the Carter-era Congress—think Church Committee—and Jimmeh himself) and their underestimation of the Soviet, Chinese, Indian, and Pakistani nuclear programs. So, unlike the Democrats and their liberal allies in the media who proclaimed their faith in the CIA when it was undermining Bush, I am not a defender of the CIA. I view them as a necessary evil in need of substantial reforms. But I don’t trust them, especially not the senior careerists. I do see the CIA functionaries as ready and willing to lie when it suits their institutional purposes. And, typical of bureaucracies, their interest, first and foremost, is to protect themselves and their institution. But what Pelosi attended was a confidential briefing; it was not a defensive response to an attack on the agency.

My concern here is that Pelosi soon will become a topic of ridicule for comedians. That might force her out of her position. Steny Hoyer, a much more competent and no-nonsense skillful partisan, would become Speaker. When conservatives raised the hue and cry over Tom Daschle’s tax problems and pressured him to reject the nomination for HHS Secretary, we got the ideologically worse Sebelius. I believe that Hoyer, David Obey, and others are even now running the show, with Pelosi as a figure-head. But having her front and center in front of the camera is an invaluable asset—for Republicans. So conservatives need to be careful not to overdo this. Pelosi needs to be identified as a symbol of what is wrong with the Congress. Her buffoonery provides a useful means. She can be counted on rhetorically to shoot herself and the Democrats in their collective behinds. If she is demoted to being a back-bencher, her babbling will no longer receive media attention, and her usefulness as a campaign theme in 2010 is gone.

Conservatives need to act cautiously. Wound, but don’t kill. I am proposing that conservatives send emails and letters to Pelosi’s office, imploring her to stay on and continue her fight. We need her in 2010. This, along with the polls that show that a majority of the public supports waterboarding even though a majority thinks it is torture, and the polls that show that a solid majority want no Congressional or other investigations of Bush administration officials, should dampen the enthusiasm among Democrats for formal investigations.

UPDATE: I disagree with Newt Gingrich and Representative Steven King that Pelosi should go. I hope that Rove and the New York Times are right, that this will not cause the Democrats to replace her.

Guy Benson at Townhall piles on. If he can actually say this with a straight face, Speaker Pelosi should hire him as her P.R. flack.

I previously posted about the apparent ignorance of critics of John Yoo, et al., who, while at the Office of Legal Counsel, drafted various memos analyzing the legality of the proposed use of waterboarding and other interrogation methods, particularly in relation to the Torture Statute. One of my posts was an article in the L.A. Daily Journal legal newspaper. I questioned whether there even existed a formal analysis that showed clearly how those memos were wrong. I challenged the notion that there was anything for which these attorneys might be held liable. Victoria Toensing, former chief counsel to the Senate Intelligence Committee, raises similar objections in the Wall Street Journal. She analyzes the legal (not emotional) definition of torture and the role of the OLC attorneys. Her analysis confirms my reading of the statute and affirms my sense that the OLC attorneys did exactly what they were asked and did it properly.

While waterboarding has received round condemnation from liberals as torture, there seems to be less opposition to sleep deprivation, at least among some in the current administration. Although the method is currently banned under the Obama order against “enhanced interrogation techniques” (i.e., anything worse than a question not preceded by a “Please tell us”), there is an ongoing review that may well restore its use.

As analyzed in the OLC “torture” memos in 2002 and later, I found sleep deprivation to be harsher than waterboarding. It is the method that I think comes closest to the legal definition of torture, though I agree that it doesn’t cross the line. From a common understanding, too, it is nowhere nearly as harsh as electric shocks, breaking bones, beating with pipes, or worse.

But I think that it is far worse than waterboarding. Shackling and leaving people to stand (or hang from their shackles) for a week while depriving them of sleep by loud music, water spraying, slapping, uncomfortable physical confinement, etc., seems to be far more torturous than simulated drowning for a matter of some seconds. One notices that there are no Christopher Hitchenses or other journalists lining up to test their endurance skills with a simulated sleep deprivation regimen. Having gone just 36 hours without sleep once, I know how debilitating and uncomfortable sleep deprivation can be for even a relatively short time period. For that matter, going with just one hour of sleep over a 27-hour period on the latest red-eye flight made it difficult to function.

I am also not clear how that method is more effective than waterboarding at producing valuable and truthful information, given the weakened state of memory after prolonged sleep deprivation. That is, if we can even consider effectiveness when evaluating harsher interrogation techniques, as the moral idealists who are not responsible for anything but their next press conference or academic gathering would insist we cannot. But on the effectiveness point, I will have to defer to the claims made by the CIA interrogators who perceive this to be a particularly valuable method.

I am going to wade into a matter about which many with little experience and background have their unshakable faith. The matter is whether enhanced interrogations work. I don’t know whether or not it does, but it seems to me that there is a broader consensus that it works, at least sometimes and under certain conditions, than there is for the hypothesis of catastrophic anthropogenic global warming. I use the bland designation “enhanced interrogation” on purpose, to indicate any form of questioning that goes beyond a mere question and response. Anything, from raising one’s voice, engaging in deception, or using a good cop/bad cop charade, to electric shocks, beatings, and amputations is within that broad designation. Since so many critics of the CIA’s interrogations methods use the emotionally-loaded “torture” to describe a wide selection of tactics, my broad use of the more generic term should be less controversial.

The criticisms against such techniques are several. One is that they don’t work because the terrorists will have hardened themselves against them. Another is the opposite, namely, that such techniques don’t work because people will say anything for the pain to stop. Another is the qualitatively different assertion that, even if they do work, such techniques are banned by law (a legal matter), unworthy of us (a political matter), or contrary to basic human dignity (an ethical matter). In this post, I want to limit my observations to the first two (pragmatic) criticisms.

As to the first, it seems to me that one’s power to resist depends on many factors too difficult to control. Different people have different pain thresholds and psychological walls. Still, it is possible to stell oneself, at least up to a point. Perfect training is unlikely, since trainees at least have the knowledge that, at the end of the day, they will be alive and free, and that the interrogations are not going to cross some, albeit unknown, line. That said, as the military and, apparently, the terrorists recognize, everyone breaks at some point if the interrogators lack any limits. As the questioning proceeds from shouting to verbal abuse to minor physical contact to controlled waterboarding to beatings to those actions that indubitably constitute the most brutal abuse that rightfully is called torture, one cracks. It is as John McCaine has so eloquently described about his experience and that of others in the “Hanoi Hilton.”

The second criticism is that the victim will say anything to get the pain to stop. Therefore, the information received is faulty. At some level, of course, the same can be said of even the calmest, most composed detainee who tries to lead the interrogator astray. As the pressure is increased, the ability to engage in calm deception may be impaired. For some, that point comes sooner than for others. Those who have no information will protest their innocence loudly and vigorously.

Critics are probably correct that blindly abusive interrogation will induce those who have no information and who have reached their breaking point to lie just to make the interrogation stop. But why would those same critics assume that the terrorist with good information who has reached his breaking point continue to fabricate elaborate lies rather than cough up the information to make the interrogation stop. Again, that point is not the same for all, but expert interrogators seeking information probably have some skill at detecting it. This also does not resolve the issue whether the coercive interrogation methods should be avoided, despite their ability to produce creditable evidence.

It is also possible that non-coercive techniques might gain the same information as he more coercive ones. Perhaps. At the very least, though, such techniques take time, often a long time, especially with an ideologically motivated and hardened enemy. If time itself is the enemy in the situation, a gradual process is self-defeating. And the situation need not be as critical as the “ticking time-bomb” scenario. Khalid Sheikh Mohammed, a person who boasted of having killed Daniel Pearl by sawing off his head with a dull knife, is an unlikely convert to the school of disclosing evidence on gentle questioning.

Finally, if the process is not simply brutal punishment, or even to obtain a usable confession, but to gain intelligence, there is greater likelihood that the interrogators can gauge the accuracy of the response based on other information already in their possession. This, in turn, more likely will dissuade the detainee from providing false information as the pressure increases. Moreover, the interrogators likely will try less coercive methods first, at the least to establish a baseline of information and cooperation. This pattern of careful calibration of means and prescribed standards to test the reliability of divulged information is common even in notorious historical examples of the use of torture, such as the Spanish Inquisition and witchcraft trials. The rules for gathering evidence and the permissible gradations of questioning were strictly set down. There is, in short, a long history of experience of what works, if, again, one’s goal is not indiscriminate brutality, but eliciting information.

It makes sense to conclude that, especially in the hands of experienced interrogators, enhanced interrogations can produce results that would not have happened through less coercive means at least some of the time and with some individuals. This is not an issue of black-or-white, of enhanced interrogation works or it doesn’t work. Rather, it may. That uncertainty enters into the equation of when, how, with whom, or even whether a particular technique should be used. But it won’t do to try to escape the difficulty of the question by dismissing the utility of such techniques across the board.

Stuart Taylor in the National Journal makes just that excellent point in one of the best articles I have seen on the topic: “The fashionable assumption that coercive interrogation (up to and including torture) never saved a single life makes it easy to resolve what otherwise would be an agonizing moral quandary.” Precisely.

Those conclusions appear to reflect the experiences of those most familiar with the techniques. Here is Vice-President Dick Cheney last December. Dick Cheney is now requesting the release of two classified memos that he says will provide evidence of the success of such techniques. Here are former CIA director Gen. Michael Hayden and former Att’y General Michael Mukasey. Former CIA directors George Tenet and Porter Goss concur that this type of questioning has produced actionable intelligence.

Perhaps because of Cheney’s request, even President Obama is now no longer phrasing the issue in the vein of, “These techniques don’t work,” but as “We shouldn’t do them, even if they do work.” The latter is a quite different question than the former. The L.A. Times of course describes the Obama position as nuanced, whereas similar hedging in the “torture” memos of the Bush administration OLC lawyers does not keep those from being described as inadequate.

For a clear overview of the information produced by the waterboarding of Khalid Sheikh Mohammed and Abu Zubaydah, especially the planned “second wave” of airplane hijackings and attack on the Library Tower in Los Angeles, see this article by Marc Thiessen and this update. Or this article.

It is interesting to go back in time to the months shortly after 9/11 to discover how some Democrats and liberals viewed the rights of captured unlawful enemy combatants and the proper etiquette for interrogating terrorism suspects. For example, there is President Obama’s Attorney General Eric Holder, the man now tasked with investigating whether any crimes were committed by those OLC lawyers who gave opinions on the legality of “enhanced interrogations.” Speaking on CNN in 2002, Holder declared:

“One of the things we clearly want to do with these prisoners is to have an ability to interrogate them and find out what their future plans might be, where other cells are located; under the Geneva Convention that you are really limited in the amount of information that you can elicit from people.
It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war. If, for instance, Mohamed Atta had survived the attack on the World Trade Center, would we now be calling him a prisoner of war? I think not. Should Zacarias Moussaoui be called a prisoner of war? Again, I think not.”

Unlike what the Supreme Court’s forays into the rights of such detainees imply, Mr. Holder got that right.

And then there is Newsweek’s star pundit, the reliably anti-conservative, anti-Republican, anti-Bush Jonathan Alter, writing “Time to Think About Torture” on November 5, 2001. He derided those who held to old-style restrictive interrogation rules: “Some people still argue that we needn’t rethink any of our old assumptions about law enforcement, but they’re hopelessly ‘Sept. 10′—living in a country that no longer exists.” Note that he wanted to apply more invasive interrogation rules even to law enforcement efforts, not just intelligence-gathering, or, perhaps, he did not appreciate the difference. Alter approvingly quoted Justice Robert Jackson’s aphorism, “The Constitution is not a suicide pact.” He noted the muted criticism by the ACLU of the Patriot Act. He again quotes approvingly, this time the liberal First Amendment lawyer Floyd Abrams, who notes the Bush administraion’s “incomparably more sober and sensible approach” compared to what other administrations had done in times of emergency.

Alter also lauds the forthright position of Alan Dershowitz, who proposed court-issued torture warrants in certain cases, rather than relying on ad hoc decision-making by the interrogators that had no independent pre-screening but made the interrogators potentially liable due to the uncertain and vague lines drawn under the law. In words that sound downright bellicose when judged by today’s tone of perpetual shock and outrage over anything more than a sharp tone of voice, Alter declares, “We can’t legalize physical torture; it’s contrary to American values. But even as we continue to speak out against human-rights abuses around the world, we need to keep an open mind about certain measures to fight terrorism, like court-sanctioned psychological interrogation. And we’ll have to think about transferring some suspects to our less squeamish allies, even if that’s hypocritical. Nobody said this was going to be pretty.” Having recommended the involuntary administration of sodium pentathol (”truth serum”) earlier in the article, Alter at the end recommends psychological pressure and, if necessary, extraordinary rendition for the physical stuff. Outsourcing torture because to do it here would be against our pristine sense of ourselves. Foreigners, doing the jobs Americans won’t do.

Reacting to the Alter piece, the New York Times’s Jim Rutenberg explored the media’s gingerly entry into the torture debate. Rutenberg interviewed Alter himself, who remarked that, not only were people not sending emails expressing shock at his having become an Alter boy for the administration on torture, but that liberals (often quietly) expressed support.

Then there is William Jefferson Clinton. Having been in the position of responsibility for national security, Clinton offered this approach on National Public Radio, according to a 2006 article by Alan Dershowitz (himself a politically liberal supporter of torture in limited circumstances) in The New York Sun:

“Look, if the president needed an option, there’s all sorts of things they can do.Let’s take the best case, OK.You picked up someone you know is the No. 2 aide to Osama bin Laden. And you know they have an operation planned for the United States or some European capital in the next three days. And you know this guy knows it. Right, that’s the clearest example. And you think you can only get it out of this guy by shooting him full of some drugs or water-boarding him or otherwise working him over. If they really believed that that scenario is likely to occur, let them come forward with an alternate proposal.

“We have a system of laws here where nobody should be above the law, and you don’t need blanket advance approval for blanket torture. They can draw a statute much more narrowly, which would permit the president to make a finding in a case like I just outlined, and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court.”

Assuming that he is talking about real torture as statutorily defined, Clinton’s apparent “limitation” on torture by requiring an after-the-fact approval from the FISC is a fig leaf for interrogation methods far more onerous than what was at least officially done, and what is officially criminal. Perhaps there were other, not-yet-disclosed tactics. And perhaps these were also done under the Clinton administration. That would explain Clinton’s emphatic support.

These are inconvenient truths for liberals, and one needs to keep these remarks in mind constantly, as the liberal blood fever for Bush administration officials runs its course.

More evidence that quite a number of Senators and Representatives were apprised of the existence and extent of enhanced interrogations of terrorism suspects, including Democrats Nancy Pelosi (despite her increasingly desperate denials), Bob Graham, Jay Rockefeller, and Jane Harman, of whom only the last voiced any concern about the use of those techniques.

Time magazine has a story about the interrogation techniques that are still available to the CIA to question terrorists. The methods are restricted to those permitted under the Army Field Manual. Here are some examples:

“The revised manual allows for 19 interrogation techniques, ranging from offering ‘real or emotional reward’ for truthful answers to repeating questions again and again ‘until the source becomes so thoroughly bored with the procedure, he answers questions fully and candidly.’”

I’m sorry, what was that again? “Emotional reward?” What is that? “Oh come here, Khalid, you ol’ camel driver, let me plant a big one on ya”? And asking again and again until he gets bored? Is this the interrogation equivalent of “Are we there yet” on a trip with the children? That really does sound like torture. If so, it might just work. More examples:

“Interrogators are allowed to flatter a detainee’s ego, for instance, by praising some particular skill. Alternatively, the interrogators may attack the detainee’s ego, by accusing him of incompetence — forcing him to defend himself, possibly giving up information in the process. If interrogators choose to go on the attack, however, they may not ‘cross the line into humiliating and degrading treatment of the detainee.’”

Of course not. So they can “flatter” him? “Man, Abdul, the way you sawed that captive’s head off on that jihadi snuff video, that was totally awesome. You had the dude screaming his head off. Get it? Head off?” Or say he’s incompetent? “Telling me your sister can detonate IEDs better than I can?! Wow, that really hurts. Sure. I’ll tell you everything.”

Are these people serious? The interrogators also generally may not tell the detainee lies, although some of the nastier Americans would like to allow the kind of deception police use against ordinary criminals, which so far is not permitted with the terrorists. However, interrogators may go so far as to claim that they are not Americans—but only if necessary. Isolating detainees from each other may be permitted under exceptional circumstances, but the ACLU considers separating members of a terrorist cell, for example, a form of cruelty. No word from the ACLU what they consider getting blown up by a terrorist. Maybe that is the basis for this evaluation of the ACLU.

The problem is that the Army Field Manual is not designed for these kinds of interrogations. The military usually questions prisoners of war wearing identifiable uniforms, not members of a hidden terrorist cell. The military usually isn’t looking for actionable “intelligence,” but to process captives. The military questioning is usually done as an administrative routine by people comparatively inexperienced in this task, while CIA interrogators presumably are trained thoroughly. Since the scenario envisioned by the Army Field Manual is quite unlike that faced by the CIA interrogators of terror suspects, the rules of the manual may work for the questioning in conjunction with routine military pocessing. But something different is needed with the extraordinary circumstances of a terror investigation.

In her own inimitable manner, Ann Coulter evaluates the torturous nature of the existing interrogation methods—and finds it lacking, unfortunately so. A caterpillar is not an animal likely to cause serious long-term psychological harm. Coulter sees even th CIA interrogations as soft. And she has a point, compared to what can be mustered by those yelling loudly for the abolition of even the limited methods of psychological or physical pressure used before Obama’s order. The new methods are just ridiculous if you don’t have months or years to get the info. The Army Field Manual as described there reminds me of:

Obama is on thin political ice here. One big attack or series of smaller attacks, and all of this handwringing will be mere historical curiosity, along with Obama’s career.

From Hot Air: It looks now like there will not be any criminal charges attempted against the OLC attorneys who drafted the memos that parsed the potential legal liability for coercive investigations of accused terrorists such as Khalid Sheikh Mohammed. Still unclear is whether the Obama/Holder Justice Department plans to refer the files of John Yoo and Judge Jay Bybee to state bar associations for disciplinary action, as initially recommended by investigators but now possibly withdrawn.

There is speculation that Bush administration officials are quietly lobbying to have the Obama administration drop the whole matter, perhaps by pointing out the inevitable investigation of the Obama administration when a Republican president is elected. One of the most obvious candidates for such a future investigation is Eric Holder himself, both for his dealings in the corrupt Marc Rich pardon by Bill Clinton and for his possible prevarications to Congress when asked about that matter during his confirmation hearing. If it is true that former Attorney General Mukasey wrote a letter showing the poor legal analysis of the draft report against Yoo, et al., (which was begun by the DOJ career lawyers under Bush), those lawyers, too, might find themselves facing investigations in the future. What goes around does have the nasty habit of coming around.

I find a couple of other things interesting about this process. If the matters go before state bar associations, especially if the proper one is the California State Bar, the liberals that typically run those associations may be pressured (and inclined personally) to move against Yoo and Bybee. On the other hand, if either Yoo or Bybee are disciplined by a bar association, it is far from clear that it would have a huge professional impact on them. Neither is a practicing attorney. If what Bybee is said to have done does not constitute an indictable offense, and he is not bringing the office of judge into professional disrepute or engaged in corrupt actions, it will be extremely difficult to impeach and remove him.

Yoo has tenure, and he has not committed a crime or engaged in academic fraud or otherwise corrupted his position. However, he is in a weaker position in that regard than Bybee. Law schools are populated by true believers from the Left. Even at my school there are several who still suffer from BDS, so one can imagine that the dean at UC Berkeley will come under considerable pressure from vocal radical faculty and alumni to get rid of Yoo. Maybe there’s some kind of deal to have Yoo go to the friendlier environs of Chapman Law School, where he currenly is a visitor. The dean there, John Eastman, is more supportive of non-leftie law professors than many others are. The anti-Yoo professors, of course, are the same people who would fall all over themselves if they could have former President Bill Clinton be on the faculty, you know, the Bill Clinton who got disbarred for perjury.

The third lawyer, Steven Bradbury, apparently was not even targeted for a potential disciplinary hearing. He is in private practice, and an adverse result from a state bar action might have done significant damage to him. That may be the reason for the different treatment, or it may be that his memos were even more cautious, though they did not differ materially from his predecessors’.

The other interesting point is that, if we assume that Yoo and Bybee gave bad advice by drawing the wrong conclusions about vague statutes and precedents, why is that a state bar matter? If this is an ethics violation, let the investigations of all lawyers begin. Let’s discpline all lawyers who have given clients bad advice when trying to interpret vague statutes and precedents. This should open the market tremendously for recent law school grads.

A lot of hot air is being produced by members of Congress, such as Senator Pat Leahy (D-Vt) and House Speaker Nancy Pelosi, to investigate Bush administration officials over interrogation of suspected terrorists, whether through a rigged committee investigation before Sen. Carl Levin (D-Mich) or a broader “truth commission.” I am not convinced that such a hearing will ever occur. For one thing, members of Congress need to be very careful, as they were privy to information about interrogation techniques.

Representative Peter Hoekstra has requested information from the Director of National Intelligence to provide a list of the members of Congress in attendance at meetings where such information was provided. “Members of Congress calling for an investigation of the enhanced interrogation program should remember that such an investigation can’t be a selective review of information, or solely focus on the lawyers who wrote the memos, or the low-level employees who carried out this program. I have asked Mr. Blair to provide me with a list of the dates, locations and names of all members of Congress who attended briefings on enhanced interrogation techniques.”

One of the Democratic members under suspicion is Speaker Pelosi. Others are Senator Bob Graham (D-Fla) and Jay Rockefeller (D-WVa). Representative Jane Harman, who was there, as well, wrote a letter to the CIA to object to the questioning. When this evidence of the Democrats’ acquiescence came out, Peolosi, in typical  fashion, at first lied about waterboarding being disclosed to her. When that position became untenable, she changed it to the back-up that she was told it could be used, but not that it would be used. Now, post hoc self-serving memos to the file notwithstanding, her response doesn’t help her. Even if she is right, she was comfortable enough with the procedure not to object to it.

Representative Peter Goss, the future CIA director, claims that the interrogation methods were clearly presented and that, indeed, objections were raised that the CIA was not going far enough. A Washington Post article from 2007 confirms that Congressional leaders, including Pelosi, were carefully briefed, and even received a virtual tour of a CIA “black prison.”

Noemie Emery proposes that all the liberals and the Congressional Democrats who voiced support for these methods and harsher ones be put on the spot. Bret Stephens identifies some of those liberals and Democrats.

I know that I should be shocked about this, but by now it’s hard to work up much bile over yet another administration reversal of position about fighting terrorism. I remember the years of criticism of the Bush administration from “human rights” groups over the use of military commissions to try foreign unlawful enemy combatants. Those groups pushed for trials in the regular courts under ordinary rules of criminal procedure. The Bush administration, relying on well-established precedent going back to the Revolutionary War, carefully crafted a system of military commissions that gave the accused more rights than were given to previous detainees, what was available to the defendants at Nuremberg (contrary to candidate Obama’s assertion), and what was required under Article 3 of the Geneva Conventions.

When the Supreme Court in its strained separation of powers interpretation in the Hamdan v. Rumsfeld case struck down this system, Congress responded with the Military Commissions Act of 2006, which basically gave the Bush administration what it had set up on its own earlier. Senator Obama opposed that law. It was a clear legislative rebuke to the Court. That act, in turn, came under attack from those same groups and, in the 2008 campaign, from candidate Obama. He promised to close Gitmo and abandon the military commission system.

Now comes President Obama. According to the New York Times, the administration is taking a long look at reviving the Guantanamo military commission system:

“Officials who work on the Guantánamo issue say administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies….

“But in recent days a variety of officials involved in the deliberations say that after administration lawyers examined many of the cases, the mood shifted toward using military commissions to prosecute some detainees, perhaps including those charged with coordinating the Sept. 11 attacks.

“’The more they look at it,’ said one official, ‘the more commissions don’t look as bad as they did on Jan. 20.’”

Of course, they’ll add the window dressing that the accused will be given more rights than they had under the Bush administration. But, as Chief Justice Roberts pointed out in his dissent to yet another silly Supreme Court opinion, the Boumediene case, what other rights can they be given consistent with the need to protect intelligence information and the need to deal with people that are not ordinary criminals?

The problem is that liberals believe that terrorists are ordinary criminals and that the battle against a political/military terrorist network is the same as dealing with the local gang. I don’t believe that the military commissions, as currently constructed, are needed for this task. I agree with those who say that these cases could be handled by a specialized court, a “national security” or “terrorism” court, staffed by non-military judges. But the procedure used would be essentially that provided by the Bush administration, not that available to ordinary American criminals under the Constitution, statutes, and rules of criminal procedure. In the absence of such a court, the military commissions are the way to go. Apparently, the administration, having to govern rather than just criticize, now agrees.

The way things are going, most of the remaining detainees will be scheduled for release (as the Bush administration also was doing), but many of those will not find a country to receive them. Some of those will be released into the U.S., with considerable protest by the communities of relocation. To mollify critics, some of the non-released detainees, those for whom no sensitive information is needed, will be tried in the regular federal courts as a fig leaf for the administration’s decision.  The rest will be tried before military commissions. Come January 20, 2010, Guantanamo will still be in business.

Via Hot Air’s Ed Morrissey, who has difficulty suppressing his sarcasm.

See also Jules Crittenden of the Boston Herald for some expressions of Schadenfreude and assorted links to equally acid commentary.

The Ninth Circus has done it again. In a strange decision, the court rejected the state secrets doctrine as grounds to dismiss a lawsuit against a Boeing subsidiary brought by people who claim they were subject to capture, extraordinary rendition, and torture. The Obama administration intervened to support the defendants. I am not sure that there is a lot to be read into this. It is not a clear rejection of the state secrets doctrine, but, as Ace of Spades points out, it is a totally impractical decision.

It may go to the Supreme Court and certainly seems to be contrary both to the established Supreme Court position regarding state secrets and to the expansive reading given to the doctrine by the other appeals courts that have addressed the issue. Perhaps the Ninth Circus is betting that the current Supreme Court is more willing to substitute its judgment for the executive branch’s in national security matters. That’s a plausible supposition. On the other hand, the Ninth Circus has a long history of making wrong bets on Supreme Court decisions.

Barely was the inauguration over and the evil George W. Bush finally on his way back to Crawford, Texas, and, liberals hoped, eventually to prison for war crimes, then President Obama with a great flourish signed an executive order to close the Guantanamo detention center. Well, at least in a year. If possible. Unfortunately, the pomp of the occasion was not warranted by the circumstances. Guantanamo may be around a bit longer than anticipated, if the New York Times is correct.

The problem is that there are some bad guys at Guantanamo. The American legion of lawyers may proclaim these detainees’ universal innocence, but the rest of the world isn’t buying the propaganda. Almost half the detainees at Guantanamo are Yemenis. The U.S. wants to transfer them, to Yemen, if possible. Other countries are unwilling to take them. The detainees’ terrorist pasts as al Qaeda foot-soldiers makes those countries queasy about welcoming them. Officials in U.S. states are similarly unenthusiastic.

But Yemen and the U.S. have been unable to come to an agreement to have Yemen take them. The administration is also worried that Yemen’s government has been less than forthright in their dealings with the U.S. about previous transferees. There is too much al Qaeda influence in Yemen to be confident that repatriated detainees won’t resume anti-American terrorism.

Officials of the Obama administration are stumped. They have no alternative plan for the detainees, but the repatriation of those detainees is critical to the plan to close Gitmo. Alternative: Keep them at Gitmo and have them tried before the military commissions. Maybe Bush, Cheney, et al. were on to something.

Has it come to this? There has been a geometric increase in piracy around the Horn of Africa. With every successful capture and ransom, the incentives for further piracy increase. As recently as a few years ago, piracy was but a minor nuisance.

Piracy so far is an economic way of life in an extremely impoverished part of the world, where a million dollars goes quite a way. Piracy has always had that core aspect. A condition that is conducive to piracy is if an organized government does not hold sway in the area. That, too, is a characteristic of Somalia, and certainly aids the pirates’ endeavors.

Piracy has been an endemic problem throughout history and in many parts of the world. Organized polities have dealt with piracy in various ways. The ancient Athenians periodically sent their navy to clean out pirates’ lairs when the pirates got too numerous, organized, and bold to go beyond being a mere commercial nuisance. The Roman navy dealt with pirates periodically, as well, including a famous campaign by Pompey. Cicero branded pirates “enemies of the human race,” so the Romans and Roman law obviously were familiar with this scourge. The medieval and early-modern Republic of Venice built a powerful navy to protect its vital shipping and trading interests against pirates, many of whom might be better considered to be privateers in the service of Venice’s enemies. Venice effectively organized its state-subsidized merchant fleet into convoys guarded by the navy.

In the late 18th and early 19th centuries, the U.S. and various European nations resorted to tribute to stop the depradations of Mediterranean pirates, mostly Moslem, who captured ships and either ransomed the crews or sold them into slavery. Again, many of those “pirates” were more like privateers or, in particular relevance to the current situation, forces under the control of various Moslem warlords. Technically the Maghreb (North Africa) was under the control of the Ottoman Emprire. But, in reality, Ottoman control over that part of the world was tenuous, at best, and local warlords built up their own forces, including commerce raiders on the Mediterranean. Only once the pirates, filled with hubris from the West’s timidity and tribute, got too persistent and greedy, did the Jefferson administration send a naval force and a motley expeditionary land force to deal with the Moslem Barbary Coast pirates. Unfortunately, that proved to be only a temporary measure until the British Navy and the French Army gradually brought the area under stable control and put piracy out of business.

In the Caribbean, piracy was a problem for nearly two centuries, until, once again, the British Navy’s presence and intensive settlement of the islands deprived the pirates of hiding places beyond the reach of organized military forces. A major factor in the defeat of the pirates was the development of customary international law that punished piracy summarily in captain’s courts without the need to transport these people to Britain and to give them rights that traditionally belonged to Englishmen. It didn’t matter whether those pirates were “English,” operated in English waters, or held English captives or property. In Cicero’s terms again, pirates being enemies of the human race, there was a universality to the struggle against them. The U.S. Constitution recognizes the existence of this customary “Law of Nations” and gives Congress the power to make laws to criminalize conduct contrary to it and otherwise to enforce it. Indeed, Congress used this power early to enact the Alien Torts Statute of 1789, which allowed suits to be brought in U.S. courts against piracy wherever it occurred, in a form of universal jurisdiction. It is telling that, in our time, human rights lawyers would like to use this peculiar and oddly-pedigreed law more robustly to go after Bush administration officials for all manner of grievances over conduct against the modern-day counterpart to the old buccanneer, the nationless terrorist, than against pirates or terrosists themselves.

Certainly the profit motive and the status of a large area of central and southern Somalia as a failed state without a cohesive and functioning government able to impose its will on these pirate-warlords contributes to the instability. More significantly, the problem has been an appalling lack of political will on the part of the United States and other Western powers. Other countries with interest in preventing piracy in those shipping lanes lack the naval capability to inflict a military defeat on the pirates by themselves. For that, the U.S. is needed. But the U.S., and the rest of the West, is so hamstrung by its emerging ”human rights” lawfare mentality that dealing with the pirates becomes a procedural and logistical nightmare. Since many “human rights” fundamentalists, along with some governments (including, incredibly, the British) insist that captured pirates be given broad protections and trials (presumably in countries removed from Somalia with its non-functioning courts), attempts to deter piracy through swift and summary justice are non-existent. We probably could not even house the pirates in some Caribbean redoubt such as Guantanamo, if Justice Kenedy and the Supremes have anything to say about this matter.

So, one way to deal with such actors who traditionally were beyond the law of any particular nation is simply to kill them. That’s what happened with the pirates who took the captain of the Maersk Alabama, and who were shot by U.S. Navy sharpshooters. Good. And good for President Obama for giving that order in the complex and over-bureaucratized rules of engagement under which our forces often operate. Let’s hope that this will be how our forces treat other unlawful combatants whose activities go well beyond the run-of-the-mill local crime. But a single instance of this vigor will not snuff out piracy. That is a process that involves a long struggle of will, until the pirates are convinced that the certainty of punishment and the risk of capture outweigh the economic gain. For now, the pirates can rest assured that our lack of civilizational fortitude and our ossified culture of lawfare will keep us from maintaining the necessary commitment to defeat them.

But, it might be said, so what if it takes somewhat longer, a few decades rather than a few years? The problem is that today’s economic pirates, operating locally, are like the small predator whose success attracts larger and more dangerous predators. Somalia already attracts foreign Islamists. That terrorist organizations like al Qaeda would find Somalia a wonderful staging area is almost too obvious. Terrorists that consider beheadings a kind of recreational activity are a far more dangerous breed than the pirates. They will demand and get protection tribute from those pirates, a kind of customs duty. And it is that source of steady funds collected from safe bases that poses a danger that should concern the U.S. and the West. To prevent the economic piracy from metastasizing into a terrorism-financing mechanism requires more robust military action and less legalistic prissiness. Whether we can summon the necessary resolve and stave off this latest growing menace to civilization remains to be seen.

H/T Mark Steyn

UPDATE: This happened sooner than even I expected.

Peter Robinson of the Hoover Institution and National Review has another tremendous offering, a five-part interview with former U.S. Ambassador to the U.N. John Bolton. Bolton can be abrasive, abrupt, and, to be charitable, a curmudgeon. Not your prototype of the avuncular friend everyone seeks out for conviviality. But he also knows what he is talking about and represented American interests fiercely and defiantly. This ruffled many feathers among the U.N.’s fowl. Bolton often seemed unable, or unwilling, adequately to hide his disdain for the scabrous lot of U.N. corruption mongers. That’s at least one thing I liked about him.

This is Part One, where the two discuss the danger posed by Saddam Hussein in the impending demise of sanctions and the resuscitation of his nuclear program, and the successes and failures of the Iraq War strategy.

This is Part Two, about North Korea. Bolton correctly castigates the Bush administration for its passivity during W’s second term, when the multi-lateral six-party talks became the only game in town. Bolton also points out that this was a policy initiative of the Democrats, and Hillary Clinton has said that the Bush approach was exactly the right one.

This is Part Three, about Russia, or, realistically, about Putin. Bolton discusses Russian expansionism and the dangers to the U.S. I am not as persuaded by that argument as by his others. I also disagree with Bolton’s Nato expansion plan, because I am not sure that Nato is a credible threat at this stage. Therefore, I am not convinced that the Russians would be deterred by fear of a Nato response. I agree with the Canadian ambassador who opined that Nato is going through an existential crisis. Right now, at least, Nato is the U.S. and a supporting cast, mainly in the supply and rear-echelon business.

This is Part Four, and the problem of the Iranian nuclear program. Bolton correctly concludes that this poses an extreme danger of proliferation of nuclear weapons and a massive destabilizing shift in the balance of power in the Middle East, as well as a siginificant threat of terrorism. While the military option is risky, it is the only alternative to an Iran with nuclear weapons. Since the current administration is never going to have the stomach for the political risks of a military strike, the dirty deed will have to be done by Israel. On Obama: “This is a very inexperienced, naive, and uninformed administration.”

This is Part Five, with a predictably acid, but correct, judgment about the U.N.’s fecklessness and impotence, as well as critical evaluations of the State Department bureaucracy and of the Bush and Obama administrations.

This is the whole series.

As the Iranians continue to develop the sophistication of their nuclear program, Israel moves inexorably towards the military option. Meanwhile, the U.S. and the EUnuchs continue to talk as they have done fruitlessly for years to get Iran to cease and desist. Iran can afford to talk for years and lead the addled West by its nose. That this project isn’t going to get Iran to change is apparent to everyone. Yet, the kabuki non-proliferation theater continues.

Needless to say, the U.N. has nothing to contribute here, as Iran has a large coterie of sympathizers in the General Assembly, along with its patrons Russia and China on the Security Council. And, as everyone knows, the West isn’t serious. That leaves the Israeli option to pull the West’s chestnuts out of the fire. In January, the Israelis apparently practiced on an Iranian weapons convoy in Eastern Sudan that was transporting weapons to Hamas. The distance was farther than what Israeli warplanes would have to fly to get to Iran.

On the other side of the world, North Korea advances its missile program. While Western commentators point out that the North Koreans failed miserably in their effort to put a satellite into space, in the next breath they say that the satellite theme was merely a cover for testing long-range missile technology. This technology is being exported to Iran, and there is also cooperation between those two countries on developing nuclear weapons technology.

What is the administration’s prescription to avoid the coming nuclear blackmail of the U.S. or its “allies”? Continue the talks that the cowboy unilateralist George W. Bush undertook in his second term, following the same inglorious and unsuccessful strategy as his predecessors. North Korea is Lucy with the football, and the West as Charlie Brown won’t learn to stop playing the game. North Korea will change when its patron China wants it to. And China doesn’t want it to stop, as long as North Korea continues to be successful in extracting concessions from the West to feed its people and prop up its decrepit system with “humanitarian” aid. Imagine if the U.S. were to say, “No more.” North Korea would become a disaster for China. Where would the starving North Koreans flee, but China? Which of course is the reason China wants to keep the North Koreans away.

As the North Koreans continue their provocations, what does the administration propose? Curtail funding of the anti-missile system that might have a shot at defending the U.S. and Europe from missiles from rogue regimes. There is a pattern here. Republican administrations advance the funding and, thus, the research and deployment. Democratic regimes cut it back.

And what does the U.N. propose? Nothing, thereby further cementing its uselessness. They can’t even agree to issue the usual two-adjective statement, much less the stricter six-adjective one.

What else? How about nuclear disarmament—primarily by the U.S.? This is the defense policy of a naive high school sophomore—or a (mis)calculating liar. Either the President knows this disarmament will not come to pass, and he is needlessly encouraging our enemies’ adventurism by signaling a weakness that those enemies, in turn, also will miscalculate. Or, the President is serious and earnestly believes in what Mark Steyn has called the “Princess Fluffy Bunny” approach to dealing with enemies. In that case, too, our adversaries will be tempted to adventurism, but this time they won’t be miscalculating. Either way, there is no happy ending to this massaging of our adversaries.

Oh yes, there is also the power of “moral authority” that Obama grandiosely believes has arrived with his ascent to the throne presidency and suggests was lacking in his predecessors. Moral authority just has done such wonders in the past with anti-American dictators bent on arming their fiefdoms. Unless, again, there is the megalomaniacal conceit that there has never been such American moral authority before Obama.  By focusing on the moral responsibility of the U.S. to lead nuclear disarmament and have Iran and North Korea follow by learning from that moral leadership, Obama has the reality of war and peace exactly backwards.

Mark Steyn fears that the administration’s vapid non-proliferation pronouncements mask a policy that is a global disaster in the making. He also reminds us, though not in so many words, that the problem is only in part that this is an Iranian weapons program. The Sunni Arabs are not likely to tolerate an Iranian regional nuclear monopoly. But for the larger world, the problem is not so much that this is a weapon of Iran, but that it is a weapon of Ahmadi-Nejad and Khamene’i.

American military planners and civilian and intelligence resources from federal, state, and local authorities are joining the Mexican government in trying to fight the drug cartels that are destabilizing not only the Mexican interior and border regions, but the United States, as well. This is ultimately a national security issue. If smugglers of drugs and people can work with impunity and military-style operations in the area, so can foreign terrorists.

I have posted before about Iran’s strategy to project power into the “Great Satan’s” back yard. They are not content to sit back and play defense against the U.S. and the West. Nor do they limit themselves to regional strength. They envision themselves as a world power. The mullahs (and their Hizb’Ullah stand-ins) made quite an impact years ago with the Buenos Aires bombing of the Israeli embassy. They established themselves in the border area of Paraguay, Argentina, and Brazil. Since then, Iran has established close connections with Cuba and Venezuela.

Now, Iran continues its efforts and gets closer. Their latest appearance is in Managua, Nicaragua, with a 100-person contingent. SInce a poor country like Nicaragua has nothing to offer but bananas, the purpose of the Iranian presence is obvious. The Iranians don’t seem to be overly busy building projects in the country, so the main benefit to the Nicaraguan regime is Iranian help for regime survival. Don’t count on the Nicaraguan political opposition to win office for a long while. If they did, the Tehran regime’s machinations would be exposed. And there is no one in Washington to challenge either the Iranians or the Sandinistas in Managua. The current occupant is no Ronald Reagan.

As well, the Iranians are extending their influence into Mexico. With Mexico’s precarious political position, Iranian interference is not likely to be to foster stability. Meanwhile, our defense is to content ourselves with sitting down without preconditions and talking. While we talk, they prepare.

Further evidence about the endangered and deteriorating state of Mexico. I have posted about this before. Even the L.A. Times had some excellent reporting on it. It has been a matter of concern for the U.S. government for several years, with intelligence agencies warning of the systemic dangers posed by the festering wound caused by the influence of the drug cartels. This danger has spread across the border to the U.S., but the administration is occupied with adopting massive wealth transfers and the political economy of corporate statism. The drug wars are escalating, not just between the cartels jockeying for position, but between the cartels and the military. With other institutions, such as local police and civilian officials at all levels of government, infiltrated and corrupted by the cartels, the military may be the last line in Mexico between an orderly, stable, and reasonably democratic society and a narco-state divided into spheres of influence of various criminal gangs. The author suggests that at least some of the cartels may instead be aiming for another goal, control of Mexico’s oil and gas production.

I disagree with one point he makes, and a commenter bears this out. Large shipments of automatic weapons (never mind RPGs) are not going across the border courtesy of the average licensed gun dealer. Those kinds of weapons can only go to (relatively) few licensed private persons, so they would not be stocked in large quantities by gun shops. These are specialized gun smugglers at work. The author is correct, though, to show the incompetence of the government in securing the border. This article from the Los Angeles Times gets the weapons issue right.

The administration has given notice that captured terrorists will no longer be called “enemy combatants.” Why, or what difference it makes, is not clear. Nor is it clear what they will be called. I doubt that they will just be called “terrorists.” Too insensitive. It’s psychological torture. Perhaps this is a prelude to transferring them to be tried as ordinary criminals in federal courts with full constitutional protections. If one were of a Machiavellian bent, one might even suppose that the administration wants the court to order such transfers, so it can just throw up its hands and claim that they didn’t want that but have to obey a court order. It lessens the political price the administration would pay for such a move if the terrorists’ comrades-in-arms were to launch an inconvenient attack on the U.S. on President Obama’s watch.

But the matter is muddied by the administration’s insistence that it can detain not only people caught on the battle field, but also those captured elsewhere, such as in cities. The argument is positively Cheneyesque.

Moreover, the administration is opposing arguments to hold senior Bush officials civilly liable to former (or, presumably, current) detainees. Building on the Supreme Court’s holding in last year’s Boumediene decision that non-Americans held at Guantanamo have constitutional rights, these folks are now demanding damages for violation of their free exercise of religion and the Religious Freedom Restoration Act. Hey, how about giving them disability payments or veterans care if any of them were wounded while they were fighting the U.S.?

Ed Whelan at National Review suggests that, in like manner, President Bush just should have renamed Guantanamo. Then he could have said that there were no more detainees at Guantanamo.

Andy McCarthy, meanwhile, addresses Obama’s habit of adopting Bush’s policies, but renaming them or giving them a cosmetic tweak to make it appear that he is living up to his anti-Bush campaign rhetoric. He also suggests that the detainees be renamed “undocumented freedom fighters.”

Not to be outdone, Mark Steyn provides a link to some other potential characterizations for the detainees, such as “future Facebook friends.”

Five Guantanamo detainees declare that they helped cause the 9/11 attacks. They are proud of their actions. Yet, I know people who refuse to take Osama bin Laden’s word that al Qaeda planned and executed the attacks. Such people still prefer to believe that Bush, Cheney, Rumsfeld, the CIA, the Mossad, the North Dakota Air National Guard, and various elements of the U.S. military planned and executed those attacks perfectly. Bear in mind that those same people believe that the government is utterly incompetent to do anything. Bear in mind, too, that the government leaks information like a sieve leaks water. But this kind of complicated conspiracy, they believe, the government has executed flawlessly and seamlessly. Yes, there might be such a “9/11 truther” or two even on the faculty at my school. So, I have some doubt that those folks will be convinced by the statements of some of the al Qaeda participants in the attacks.

Also, I wonder where Obama will have these people tried, and where (and whether) they will be imprisoned. It’s only a matter of time before the professional terrorist defenders among the legal class will insist that these are all just misunderstood, innocent yakherds who gave their statements only after prolonged torture by vicious camp guards who refused to supply their charges with donuts and coffee during questioning.

The Obama administration is, once again, endorsing the Bush administration’s constitutional positions in the “War on Terror.” The administration takes the strongly pro-executive power position that 600 unlawful combatants held at Bagram Air Base in Afghanistan have no constitutional rights, and that the habeas corpus rights extended to the Gitmo detainees should not apply to others. While that position is backed by solid precedent in Johnson v. Eisentrager, it flies in the face of Obama’s campaign rhetoric. Needless to say, mere solid precedent does not mean that the Supreme Court will be deterred from making up yet another constitutional innovation. Indeed, the tone of the opinion lends scant comfort that the damage the Court has wrought will be contained to Guantanamo. Rather, in typical fashion, Justice Kennedy talked about numerous factors to consider. That not only allows the Court the flexibility to extend the decision to reach wherever American forces are (”The Constitution follows the flag”), but, worse, it creates an uncertainty in the law, under which the executive branch can ill afford to labor.

The President also has reaffirmed resort to renditions.

The administration’s position has the incidental merit of giving the President the option of grandiosely closing Gitmo, and transferring those people to Bagram. At the very least, any new detainees will be kept there, farther from the gaze of American courts and media than W ever did. It bears noting also that the facilities at Bagram appear to be much more spartan than those at Gitmo.

Likewise, the Obama administration backs George W. Bush’s views on the state secrets doctrine. Their position embraces strong executive branch power and argues that the judicial branch lacks the competence to decide when classified information should be released. A similar argument is being made in another case involving rendition, about which I have posted before. As the Wall Street Journal points out, “[We] are relearning that the ‘Imperial Presidency’ is only imperial when the President is a Republican. Democrats who spent years denouncing George Bush for ’spying on Americans’ and ‘illegal wiretaps’ are now conspicuously silent.”

This article raises serious questions about the continued deterrent value of the American nuclear forces. They are becoming antiquated, and the U.S. is in danger of losing power in relation to the developing and modernizing forces of other countries. Such a multipolar world threatens more instability. The administration will receive a Nuclear Posture Review towards the end of this year, a comprehensive review of strategy and weapons development. This is a critical stage.

“On December 2, 2008, the bi-partisan Commission on the Prevention of WMD Proliferation and Terrorism released its report declaring, ‘The Commission believes that unless the world community acts decisively and with great urgency, it is more likely than not that a weapon of mass destruction will be used in a terrorist attack somewhere in the world by the end of 2013.’”

Nor is a terrorist attack the only problem. Apparently, Iran has been testing rockets and detonating them in flight. Some think that Iran is planning a strategically devastating effect of an air burst over the U.S. All it takes is a single nuclear device, for which Iran probably has enough material. By destroying power grids and the electronic components of vehicles and computers, such an electro-magnetic pulse attack has the potential to put the U.S. into pre-industrial age conditions for some unknown period of time. This may be just doomsday mongering, but part of the job of defense planners is to think the unthinkable.

A few months ago, I posted about the drug cartel wars in Mexico that threatening the country’s stability. This is now getting increased media attention (not from the bi-coastal Times papers, however)  as the danger of Mexico becoming a failed narco-state rises. Even if there is not full-fledged social collapse and political disintegration, but “merely” an endemic scope of “tolerable” violence, the danger to the U.S. is significant. Increased migration across the border, further violence on the U.S. side from these drug gang rivalries that are already making Phoenix, Arizona, the kidnapping capital of the world, and national security risks as the gangs that use increasingly sophisticated methods of protecting their turf and smugglers find it increasingly profitable and easy to transport people and contraband across the border.

Following the lead of the Bush administration, the Obama administration argues in court that detainees held at Bagram Air Base in Afghanistan do not have constitutional rights, and that the Supreme Court decision extending habeas corpus relief (and by implication, at least, constitutional rights) to prisoners held at Guantanamo Naval Base does not apply. “Human rights” activists are miffed. The “hope” they had has not turned out as expected. Time to change some hope.

And the fun continues. A Pentagon study commissioned by the Obama administration concludes that conditions at Guantanamo meet Geneva Convention standards.

Then comes the good news in a report from The New York Times that Obama’s anti-terror legal tactics will largely and in various ways carry forward the approaches undertaken by the administration of George W. Bush. Mark Steyn quotes a line from Orrin Judd, “Wouldn’t it have saved a lot of time if Obama had just asked W to be his War-on-Terror czar?”

Last year, a federal district court ordered 12 Chinese Uighurs held at Gitmo released into the U.S. itself. The Uighurs had been captured at a terrorist training camp in Afghanistan and taken to Guantanamo as unlawful enemy combatants. After investigation at Guantanamo, it was determined that the Uighurs, though trained in terrorist tactics, were anti-Chinese terrorists, not anti-American. The U.S. tried to get other countries to take them, because they could not be returned to China. Despite the view of some on the left that Bush is the world’s biggest terrorist, China is less reticent about torture than the U.S. is about speaking loudly to a detainee. Other countries also refused to take these men, partly because of Chinese diplomatic blustering, partly because these guys are, well, trained terrorists.

The executive branch was displeased with the district court’s ruling, in part on the constitutional ground that it was the executive branch’s authority to determine what to do with these people, especially as regards immigration into the U.S. itself. In part the executive branch was concerned about the practical effect of admitting these people. Again, my solution would have been to buy them a house right next to the federal judge’s. A federal court of appeals now has overturned the district court’s ruling. The executive branch is still trying to place these people, and no one can doubt that, with his international following and his promise to change America’s evil ways, Obama will have no problem placing them in short order. Let’s see how long sanity prevails, or, in other words, how long until Justice Kennedy and the Supreme Court get a hold of the case.

HT: Shane Skelton

Let’s review the “Scooter” Libby saga. He was unjustly convicted of perjury and obstruction of justice for allegedly lying to investigators and to a grand jury about his knowledge of who told him about Bush-administration critic (and unmasked liar) Joe Wilson’s wife’s CIA employment. I say “unjustly” because the initial investigation had nothing to do with Libby, but was an investigation by special prosecutor Patrick Fitzgerald into who had leaked Wilson’s wife’s name and CIA connection to Robert Novak and other reporters in possible violation of federal law. Now, it turned out that Fitzgerald already knew who the leaker was when he talked to Libby. It was Colin Powell’s assistant and Iraq War critic Richard Armitage. Moreover, there was no violation of federal criminal law, among other things because Wilson’s wife, Valerie Plame, was not a covert CIA operative, having become a desk jockey at Langley years earlier. Moreover, Fitzgerald apparently had personal animosity toward Libby. So, Libby should never have been put in this position over some dubious recollections of who told him what when before he told others. Fitzgerald’s claim that, due to Libby’s statements, he could not find out who disclosed Plame’s identity and whether any violation of law had occurred is patent nonsense, as it is beyond peroration that Fitzgerald already knew these matters when he questioned Libby. Chris Hitchens detailed the whole sordid tale in a series of articles.

I bring this up because of this story. The supposedly sane half of California’s duo of Senators, Dianne Feinstein, is the head of the Senate Intelligence Committee. (Yes, I know there’s a cheap joke there.) It turns out that she blurted out classified information in a public hearing that implicates the Pakistani government in American Predator drone strikes against al Qaeda terrorists on Pakistani soil. Such government assistance, the use of Pakistani bases, to the U.S. is a deeply divisive political issue there. The government has steadfastly denied such involvement and has even loudly protested the Predator strikes, as they sometimes kill civilians. Given the politically tenuous position of the Pakistani government, Feinstein’s massive blunder can cause the collapse of a fragile alliance and greatly complicate U.S. efforts to deal with al Qaeda and the Taliban hiding in Pakistan.

Yet there is no outcry for Feinstein to be sacked. But then, that is no different when other Democrats disclose national secrets, such as Senators Jay Rockefeller and Patrick Leahy have done about American intelligence and weapons systems. There is a reason why Rush Limbaugh calls the latter “leaky” Leahy. Even Clinton’s former national security adviser Sandy “Burglar” Berger, who was caught taking classified materials from the National Archives by stuffing the papers down his pants, received far less of a punishment than Libby. It seems that Democrats compromising intelligence is less of a problem than a Republican failing to recall who told him about Valerie Plame before he told someone else.

While Obama has “closed” the secret CIA prisons, he has not prohibited the use of “temporary” secret detention sites under certain circumstances:

“One provision in one of Obama’s orders appears to preserve the CIA’s ability to detain and interrogate terrorism suspects as long as they are not held long-term. The little-noticed provision states that the instructions to close the CIA’s secret prison sites ‘do not refer to facilities used only to hold people on a short-term, transitory basis.’” What is the over/under that “short-term, transitory” will soon take on a very flexible meaning?

Now it also comes out that renditions will continue. Along with the “all deliberate speed” message of the Obama order regarding the closing of the Guantanamo detention center, there seems to be a morphing of Obama into George W. Bush (who also wanted to close Guantanamo as soon as possible).

Indeed, with Gitmo closed and other CIA “secret prisons” closed at least for now, renditions are likely to increase: “Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism — aside from Predator missile strikes — for taking suspected terrorists off the street.”

Predictably, human rights groups changed their tune from what they were singing when the Bush administration engaged in renditions: “‘Under limited circumstances, there is a legitimate place’ for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch.”

Ironically, the CIA is not particularly thrilled about renditions, and appear to prefer to keep these suspects under American control in Gitmo or abroad. They see renditions as a less effective way of gaining information because they do not control the process.

For now, at least, the Obama administration is following the Bush administration in opposing money damages actions by terrorism suspects subjected to extraordinary rendition. It is even using the state secrets doctrine in its attempt to block the suits.

The headline of this article makes the matter sound more certain than it is. But the prospect of al Qaeda working on biological terror, including the plague (which probably was an ebola-like hemorrhagic fever), is horrifying. Given the problems the Canadians have had (and we would have) isolating known SARS carriers upon their return from Asia on scheduled flights, one can imagine what could happen if infected persons were smuggled across the southern border and were to travel around cities.

On Friday, I attended a symposium hosted by the law review students at Chapman Law School (part of Chapman University) in Orange, California. The topic was Lincoln and the Constitution, with application to the current conflict with terrorists. Particular subjects were suspension of the writ of habeas corpus and detention of American citizens; Lincoln’s financing of the war; and wartime infringement of civil liberties.

Most of the panelists stuck to the topics at hand, though some decided to talk about themselves and matters of interest to them, whether or not there was any obvious relevance to the subject of the symposium. The panels were evenly split between what one might call the Left and the Right, though the economists were generally united in their disdain for the Fed and (with one libertarian exception) supportive of resurgent vulgar (as contrasted with Lord Keynes’s version) Keynesianism, the economic fad of the year. U.C. Berkeley law professor John Yoo (currently on a visitorship at Chapman Law) of the libelously-named “torture memo” fame was there, as were Roger Pilon, a national security libertarian from the Cato Institute, and Professor Harry Jaffa, a noted Lincoln scholar and historian from the Claremont Graduate School. The discourse was civil and the liberals from the ACLU and others who had litigated to expand the rights of Gitmo detainees and other suspected terrorists made reasonable, though in my mind unfounded and misguided, arguments.

The thoughtful discussion and exchange of ideas was shattered by a Professor Marjorie Cohn, a professor at Thomas Jefferson Law School in San Diego, who is also the head of the National Lawyers’ Guild, a hard-left group. She was the last speaker of the day and read a diatribe against President Bush and other administration officials. She also taunted, insulted, and, one might imply from her remarks, threatened John Yoo, in a typical left-wing display of lack of class and manners. Her fellow lefties in the audience interrupted her speech with applause, a tactic that the classier conservatives did not do when intellectual points were made that they might favor. As I’ve pointed out before, lefties say that they want to build a classless society in the U.S. Most people think that means a supposed enforced equality of condition. But judging by their behavior, lefties are intent on producing a society of people who have no class. Her physical appearance was exactly what might be expected of someone with hard-left politics from New York. I doubt that she has laughed warmly and joyfully about anything since the last Ice Age or when she was a young girl, whichever came first. Anyway, I eventually decided that I was not learning anything or having my views challenged by this bitter harridan, so I stepped outside for a break.

The point of the post, though, is to address an argument made by one of the other speakers, Chapman law professor Katherine Darmer. She took what she thought must have been a bold stand against torture. But she went further and characterized waterboarding as torture. I wanted to ask her a question about this, but the presentation was running late and ended before they could get to me. So, I will present the argument here, along with some other points.

Liberals like to say that torture produces no reliable information, because people will just say what they want the interrogator to hear. To me, that proves too much. And, indeed, as best as can be said, torture sometimes produces good information and sometimes not, much as other methods do. So the justification of torture or opposition thereto has to be based on other grounds, such as ethical norms or, for the utilitarians, a cost-benefits approach. The reason the liberal argument proves too much is that they say that the practice is so destructive of the will to resist that the victim will say whatever it takes to end the long-enduring painful process. Therefore, the victim who really has no information will confess to acts that he has not in fact done just to make the pain stop.

Two problems: The less significant objection is that all questioning is suspect on that basis. Indeed, even without questioning some people will confess to crimes that it turns out they have not done. That is one reason why a confession alone is not enough for conviction of a crime. Confessions are inherently unreliable without corroborating evidence. Confessions are useful only to produce potential new leads or to corroborate evidence the interrogator already has. So confessions produced by torture are no worse in that respect than those obtained through other questioning.

The other problem is that, using liberals’ test, presumably those with valuable information will also want the pain to stop and will tell the interrogators what they want to hear, namely, the good information. For liberals to say that those with good information will craftily concoct false stories under torture, while those with no good information will confess to that false information is changing analytical parameters in mid-stream. Asserting that someone has the presence of mind to concoct a web of lies while under the unbearable mental and physical anguish of torture undermines the definition of the term.

But that last seems to be part of the liberal program. Professor Darmer considers water-boarding torture. Now, the Yoo “torture memorandum” about which I posted last summer, incorporates the law’s traditional tight compartmentalization of degrees of interrogation. The law distinguishes between torture, “ordinary” cruel or abusive conduct, and other physical interrogation techniques. Torture is the “worst of the worst.” Professor Darmer brought up Christopher Hitchens’s article describing how he underwent waterboarding to see how long he could go without giving in. He then tried a second session twenty minutes later to see whether he could go longer. Professor Darmer related Hitchens’s conclusion that this was torture. I should note that a Fox news reporter also underwent waterboarding to see what it was like, and at least some groups within the armed forces are subjected to the experience for training.

I see Hitchens’s (and the others’) experience differently. Whatever else one might call it, any procedure that an out-of-shape, middle-aged journalist voluntarily undergoes and then repeats to see if he can “better” his timeis not torture. It’s a sporting event. Contrast that with the historically-verified actions of the Japanese in World War II about which I have posted before. They conducted medical experiments on POWs, including American servicemen. Among those experiments were vivisections, where live POWs underwent forced operations, without anesthesia, and had organs removed or manipulated (such as manual stopping of the heart) to see how the dying process, such as through organ failure, occurred. After a typically lengthy operation, these unfortunates would die. These Japanese practices, historians have determined, were of a much higher order of magnitude of inhumanity than anything that the Nazis or the Allies did.

Now, it seems that everyone could agree that the Japanese vivisections were torture and war crimes. Yet it seems incredible to me that such procedures would be equated with 30 seconds of waterboarding that produces no physical injury, much less death. Using torture outside its traditional meaning may have rhetorical shock value, but erodes the distinctive message the word once conveyed and makes it increasingly opaque and useless as a device to define and distinguish qualitatively different actions. This is particularly a problem for definitions of crimes, for which we demand some precision. Worse yet is imprecision for criminal responsibility for actions deemed as horrific and morally repulsive as, well, behavior on the level of the Japanese vivisections.

I wanted to ask Professor Darmer to give a definition of torture, one that would be sufficiently precise for criminal law, and that would account for vivisection and similar behavior, but also offer a distinction for less repugnant actions. If she also wants to treat waterboarding the same as vivisection, again what would the definition be to cover both of those, but distinguish them from other interrogation techniques? Such a definition would have to account for the fact that behavior more like waterboarding in severity than the latter is to vivisection would not be considered torture, while waterboarding is equated with vivisection. Along those lines, I wanted to ask her what techniques more severe than failing to serve the terrorists coffee and doughnuts, would still be permitted. She did not offer such a definition of her own. Nor have I seen others provide it. It is easy to posture about being opposed to torture in a vague and general sense. It is another to come up with a precise definition to replace the current accepted one.

I also asked Professor Yoo whether he was aware of any article that had actually shown where his analysis of the law of torture in his memo was incorrect. There has been a lot of invective, and one may opine that he stretches the precedents to their utmost to accommodate executive power. But his conclusions are a matter of legal interpretation left for ultimate political decision-making. They are not legal error. He said that he was not aware of any such article. Nor has anyone come up with a different framework for the law regarding torture and the legal distinctions Yoo’s memo explored.

I don’t expect that there will be new developments along that front. After all, there must be some distinction that the law retains for the Japanese vivisection and analogous kinds of morally degenerate infliction of pain likely to result in death.

Liberals are fond of declaring how the rest of the world has come to despise the U.S. in general, and the Bush administration in particular, for the treatment of terrorists. They claim, as was done at the Chapman conference, that Abu Ghraib and Guantanamo brought recruits to terrorist organizations. Instead, those liberals claim, we should emulate the European way of doing things, since the Europeans are much more effective at dealing with terrorists without the use of torture. Leaving aside bin Laden’s statements about the recruiting bonanza provided by the U.S.’s appearance of weakness for failing to respond to various terrorist attacks in the 1990s, it should be noted that Somalia, the First World Trade Center attack, the Khobar Towers attack, the Kenyan Embassy bombings, the U.S.S. Cole attack, the aborted Pacific Ocean airliner attacks, 9/11, and even the Bali bombings all occurred before Abu Ghraib and Guantanamo had any effects.

Moreover, the Europeans are as honest in their criticism of enhanced interrogation techniques as they are about the U.S.’s failure to sign any climate change deals. In both cases, the Europeans lie about their own actions. See, for example, this article about an interrogation technique used by German police and essentially validated by the European Court of Human Rights. That technique was not permitted to be used by the U.S. military, per directive by that “war criminal” Don Rumsfeld. The twists and turns of reasoning by the European Court to justify the German police behavior is particularly ironic when one compares its similarity to the reasoning in the Yoo memo.

This can’t be good news for those believe that the evil Bush regime is keeping lots of innocents imprisoned at Gitmo, and who want the facility closed down and the detainees sent abroad to their countries of origin.

Gateway Pundit has more about these Gitmo grads starring in their own video.

For those who think that George Bush had no success in the war against terrorists: Al Qaeda’s leadership continues to head to rendezvous with the grim reaper.

So far, at least, Obama is continuing these policies. Al Qaeda is ticked off at Obama and is treating Obama with the same bombastic contempt they heaped on George Bush. But the Washington Post thinks that al Qaeda is just mad at Obama because he has charmed the Muslim world to the point that al Qaeda cannot any longer get recruits. With a complete descent into irrationality, the paper interprets these attacks on Obama as al Qaeda leaders getting frustrated because the “divisive” George Bush, who was a perfect foil for them to get recruits to their terrorist cause, is gone.

One tool sometimes used by U.S. law enforcement and by the CIA is “rendition.” In essence, this involves having American agents kidnap a wanted person while that person is outside the U.S. In “ordinary rendition,” the person is then brought to the U.S., while in “extraordinary rendition” the person finds himself in the, ahh, “embrace” of foreign agents acting pursuant to an understanding with the U.S. The public image of renditions fostered by the media, Hollywood, interest groups, and defense attorneys is that such actions are the creation of the evil Bush administration violating the constitutional rights of innocents.

Well, no. Renditions of both types have been going on for a long time. While the pace particularly of extraordinary renditions has picked up since 9/11, the practice has been in place since before the Reagan administration. I have seen reports that the first Bush administration had between 10 and 20 such cases, while the Clinton administration had dozens. The Supreme Court has no problem with ordinary renditions, though it has not yet addressed extraordinary renditions. Lower courts, however, have addressed them and refused to find officials who engage in them liable for damages, though the cases do not have to face the issue of the constitutionality of the practice squarely.

Listening to their early campaign rhetoric, one would expect the Obama administration to abandon at least extraordinary renditions. His decision to close Guantanamo and “other secret CIA bases,” to limit CIA interrogation techniques, and to appoint Leon Panetta, an outsider, to head the CIA were also described as pointing in that direction.

But, what do you know? First, closing the secret bases and changing interrogation methods is more light than heat. Bush already emptied the prisons and ordered the inmates released or sent to Guantanamo, but he refused to close the prisons. Obama is formally closing the prisons:

“But the orders leave unresolved complex questions surrounding the closing of the Guantánamo prison, including whether, where and how many of the detainees are to be prosecuted. They could also allow Mr. Obama to reinstate the C.I.A.’s detention and interrogation operations in the future, by presidential order, as some have argued would be appropriate if Osama bin Laden or another top-level leader of Al Qaeda were captured.

The new White House counsel, Gregory B. Craig, briefed lawmakers about some elements of the orders on Wednesday evening. A Congressional official who attended the session said Mr. Craig acknowledged concerns from intelligence officials that new restrictions on C.I.A. methods might be unwise and indicated that the White House might be open to allowing the use of methods other than the 19 techniques allowed for the military.”

So the secret prisons may return as needed, as may the interrogation methods. Then it turns out that Panetta is the guy who was in charge of extraordinary renditions for the Clinton administration! More “hope” and “change” out the window.

Michael Ramirez gives Panetta a dressing down.

Maher Arar is a Canadian of Syrian birth who was detained by the U.S. in September, 2002, as he was in transit through New York’s Kennedy Airport from Tunisia to Montreal. He was detained as the result of a tip from the Royal Canadian Mounted Police that he was a suspected terrorist (having been observed in a three-hour conversation with Canada’s top terrorism suspect in 2001). Mistakenly told by the Canadians that Arar had moved away from Canada, the Americans detained him at the Brooklyn Detention Center for a couple of weeks, and then took him to Amman, Jordan. There, he was turned over to the Syrians. When he emerged ten months later, he returned to Canada and began to claim that he was tortured by the Syrians and detained under inhumane conditions. He also complained that he had suffered harsh interrogation and unconscionable detention conditions while he was held by the Americans. While in Syrian custody, he signed a confession in which he admitted that he had been at a terrorist training camp in Afghanistan in 1993. Upon release, he claimed never to have been anywhere near Afghanistan.

After his return, Arar to Canada, Arar filed a lawsuit against Canadian officials for their involvement in this matter. The suit was put on hold, while a special commission looked into the matter. In early 2007, the commission awarded Arar CDN$10.5M for his claimed ordeal of having been tortured and kept in subhuman confinement. They believed his tales of, among other things, having been beaten with a 2inch steel cable and that he had never been in Afghanistan.

Arar also filed a suit for damaged against American officials, including the FBI Director and the Attorney General arising out of his confinement in Brooklyn and having been turned over by the U.S. to the Syrians. The U.S. District Court dismissed his case on the basis of the “state secrets” doctrine. The Appeals Court affirmed that decision, but on the ground that Arar had failed to make out a legal claim on any of his allegations.

Arar has been a hero to Canadian, American, and foreign “human rights” groups and Muslim organizations because his tale confirms their views of the malevolence of the American law enforcement and military, and of their Canadian poodles. Except that things may not be exactly as Mr. Arar presents them. Evidence is emerging that Mr. Arar is not the innocent victim of brutal torture that he claims.

Apparently, Arar never complained of physical torture to the Canadian consular officials who visited him nine times while he was in Syrian custody, including within a week of when Arar later claimed the beatings took place. Those officials never saw any physical signs of beatings or other torture. Nor has anyone else. When one of the officials, an experienced hand at detecting torture, asked Arar point-blank whether the Syrians were physically torturing him, Arar replied that they had “other ways.” He did complain about the cramped cell in which he was kept. No medical evidence was ever introduced about physical torture, even though the types of beatings he alleged would have left lasting scars and disfigurement. His supporters more recently began to change the theme to unspecified ”psychological” torture.

Moreover, despite being asked to provide evidence of Mr. Arar’s whereabouts in 1993, to show that he was in Canada and not in Afghanistan, he and his family have failed to do so. There is no accounting for him that year. And now, it turns out, two suspected terrorists interrogated independently in the U.S. and at Bagram Air Base, respectively, have identified Arar as someone whom they saw at an al Qaeda “safe house” in Kabul and at a terrorist training camp in Afghanistan. While the testimony of one is suspect because he said that he thought Arar looked familiar, that would have been in 2001, when Arar can prove his whereabouts in Canada. But the other’s testimony is not as easily dismissed.

Read the linked article, but especially the links within the article, which are more detailed and fascinating. Arar continues to be on a U.S. watch list to keep him out of the country.

As the new administration prepares to fulfill a campaign promise to the loony American left and to its European confreres and issue an executive order closing the Guantanamo Bay detention site, it might consider these statistics. Rather than having been unduly harsh in detaining people, the Bush administration’s military bureaucracy may have been unduly lenient in releasing them. So, chances are good that of the more difficult cases still at Guantanamo, there will be a number of, ahh, recidivists. This presents the new administration with some difficult choices of where to house these terrorists. But, then, ordering that Gitmo be closed is not the same as actually closing it. These things take time, you see.

During and after World War II, there was an enduring theory widely spread among the political Right that the FDR administration knew about the attack on Pearl Harbor before it happened and did nothing so that they could trick Americans into war. These are the soulmates-in-paranoia to the current fringe elements on the Left and the Right (e.g. Rosie O’Donnell) who believe that Bush, Cheney, Rumsfeld, et al., staged or at least knew about the September 11 attacks. Whatever may have been the effect of the FDR administration’s efforts to isolate Japan economically and to deprive the Japanese of raw material for their industry on Japan’s decision to go to war against the U.S. at that time, analysis of historical evidence shows that the administration did not receive a tell-tale coded message about the imminent attack. As one historian points out,

In an interview, Mr. Hanyok said there were several lessons from the controversy that reverberate today. He said that some adherents of the theory that the message was sent and seen were motivated by an unshakable faith in the efficacy of radio intelligence, and that when a copy of the message could not be found they blamed a cover-up — a reminder that no intelligence-gathering is completely foolproof.

Washington also missed potential warning signs because intelligence resources had been diverted to the Atlantic theater, he said, and the Japanese deftly practiced deception to mislead Americans about the whereabouts of Tokyo’s naval strike force.

“The problem with the conspiracy theory,” Mr. Hanyok said, “is that it diverted attention from the real substantive problems, the major issue being the intelligence system was so bureaucratized.”

Does he mean to say that intelligence is not fool-proof, and that the enemy may try to deceive you about his weapons capabilities? Nah, that can’t be because we all know that the CIA and foreign intelligence services always get things right and that the real problem is “Bush lied; people died.”

What does one make of this? Khalid Sheikh Mohammed and some of the other heavyweights imprisoned at Guantanamo want to plead guilty rather than face trial before military commissions? Even though their offenses carry a possible death penalty? And they decided this on the day Obama got elected? You know, the guy who wants to close Guantanamo and have these terrorists tried in civilian courts? The pre-September 11 approach that did so well in preventing terrorist attacks on Americans at home and American interests abroad? Powerline has their own theory.

In this article, Thomas Joscelyn of the Weekly Standard takes another look at the folks who are detained or imprisoned at Guantanamo. He speculates that Obama will soon find out, if he hasn’t already, that the people kept at Guantanamo are there for a reason. Joscelyn goes through a list of first-level and second-level terrorists held at Gitmo, and their roles in attacks on the U.S. The list decribes a terror network whose efforts to kill Americans could not have been thwarted without the means used by the Bush administration and which have come under attack from “human rights” lawyers and other armchair critics. He discusses various “red flags” that characterize terrorists who are fighting the U.S., and he talks about the many de-classified documents in a government database that relate to the terrorists that the media have failed to use. Joscelyn also refutes the notion that the Clinton administration successfully used the existing civilian courts to deal with accused terrorists, a notion that should have received a quick burial on September 11, 2001. Joscelyn concludes,

When the Bush administration sent the first detainees to the U.S. Naval Station Guantánamo Bay in 2002, it was improvising-understandable in a situation without precedent. The captured jihadists and terrorist agents were not conventional prisoners of war, and they were not ordinary criminals. In the ensuing seven years, the administration failed to replace its stopgap measure with an institutional response seen as legitimate. Bush’s successors should remember, however, that he took the steps he did in the context of a war against enemies who are still seeking to attack our homeland. President Bush, whatever his faults, protected America after September 11, 2001. Shortly, it will fall to President Obama to do the same.

The Wall Street Journal provides a fascinating account of the terrorist attacks in Bombay (Mumbai), India. The article reads like the script of an action movie, but the bad guys are the gung-ho action types. The good guys are mostly bumblers, ill-led and ill-equipped.

The Atlantic’s Robert Kaplan analyzes how the attacks play into a widening Hindu-Muslim gulf in India that threatens India’s development as a world power and undermines U.S. efforts in Afghanistan. In that country, the U.S. struggle against al Qaeda and the Taliban covers up a broader background struggle between India and Pakistan for influence in the region. Kaplan argues that the religious divisions in India have deep historical roots and are becoming more pronounced due to rising Hindu nationalism and pan-Muslim radicalism whose emergence has been made possible by modern communication technology.

On the plus side, the Indian government seems far less reticent to thumb its nose at Westerners concerned about the rights of terrorists than our incoming administration’s talk makes it seem they would be.

And here is an analysis of the terrorist attack from the viewpoint of a gun rights supporter.

Hugh Hewitt provides links to some good interviews and articles. He wonders why the American media, with some exceptions, have been so superficial and flighty in their coverage of this event, as if it were an isolated matter rather that part of a broader ideological and cultural struggle going well beyond India.

Mark Steyn has some thoughts about the Mumbai massacre from last week. He warns again that the enlightened elements in the West have not yet grasped the nature of the danger. We treat events such as this as isolated incidents notable primarily for their local color. To the extent we look further, we ask whether the incident was perpetrated by al Qaeda. If not, we go back to sleep. Steyn explains the obvious. These attacks are not isolated, but they are not directed by a central authority. They are perpetrated by independent groups who may be loosely connected in an organizational manner, but are united by a spreading ideology of radical Islamism that is ”a totalitarian ideology: It is at war with Hindus, Jews, Americans, Britons, everything that is other.”

Nor, given the world-wide ideology and the local personnel connections, is Mumbai going to be the last such incident:

“What’s relevant about the Mumbai model is that it would work in just about any second-tier city in any democratic state: Seize multiple soft targets, and overwhelm the municipal infrastructure to the point where any emergency plan will simply be swamped by the sheer scale of events. Try it in, say, Mayor Nagin’s New Orleans. All you need is the manpower. Given the numbers of gunmen, clearly there was a significant local component. On the other hand, whether or not Pakistan’s deeply sinister ISI had their fingerprints all over it, it would seem unlikely that there was no external involvement. After all, if you look at every jihad front from the London Tube bombings to the Iraqi insurgency, you’ll find local lads and wily outsiders: That’s pretty much a given.”

What to do? That’s not clear. What not to do? Steyn warns, “So Bush is history, and we have a new president who promises to heal the planet, and yet the jihadists don’t seem to have got the Obama message that there are no enemies, just friends we haven’t yet held talks without preconditions with. This isn’t about repudiating the Bush years, or withdrawing from Iraq, or even liquidating Israel. It’s bigger than that. And if you don’t have a strategy for beating back the ideology, you’ll lose.”

In light of the recent terrorist attacks in India, Attorney General Mukasey has much-needed advice for Congress to come up with a solution to the danger posed by the Supreme Court’s Boumediene decision. The danger is that the courts will begin to order Guantanamo detainees to be released in the U.S. That is all the more so in light of the recent decision by Judge Leon to release five detainees because he found the evidence to hold them insufficient (though not insufficient for intelligence purposes). Add to that Judge Urbino’s decision that 17 Uighur detainees have to be released into the U.S., because no other country will take them, and a coherent approach agreed to by Congress and the Executive becomes imperative.

General Mukasey describes the problem in general: “But on a more general level, the court’s order highlights the challenges that inhere in applying a civil litigation framework to wartime decisions that often must be made on the basis of the best available intelligence.” And he explains the particulars:

“The questions with which courts have grappled are of critical importance. They include foundational issues: How should we define an “enemy combatant” during a conflict with a nontraditional enemy like al Qaeda? They include trial issues: What evidence may the government rely on when making that determination? And they include practical issues: What does it mean to order a detainee “released”? Can a court order release into the U.S. if a detainee cannot be transferred to his home country, either because it won’t accept him or because we fear he might be mistreated upon his return?”

As Victor Davis Hanson notes, Obama already has dropped the anti-Bush rhetoric that characterized his campaign. Davis expects that some of Obama’s ill-conceived proposals, such as shutting down Guantanamo, will follow. And none too soon. The reality of Al Qaeda and terrorism is a lot more real from the White House than from 143 barren days in the Senate and a political campaign. It is more real still after the Mumbai attacks. And it will be even more ghastly real should the streak of seven years of no terrorist attack on the U.S. end. Let’s hope Obama drops one more of his crazy pre-election ideas, that terrorism is mainly a series of local problems to be handled through the means and institutions of law enforcement.

I have thought for some time about the use of military commissions to try suspected terrorists caught as unlawful enemy combatants in an ideological movement. This has been the problem with the proceedings involving Salim Hamdan. While I think that the President clearly has the inherent authority to use such commissions to try foreign terrorists caught and held abroad, and while Congress can give the President additional authority, the Supreme Court’s most recent opinion on the matter disagrees at least as to the first. But I think that the government should explore alternative ways to try such people, without resorting to the plainly inappropriate ordinary civilian court system. One proposal in that regard that I have thought a good alternative is a “national security court,” with specialized procedures and personnel. I have seen proposals to that effect, one of which is this article by a law professor from the Coast Guard Academy. The article is a couple of years old, so there are some factual inaccuracies due to subsequent events, but the overall point remains important.

Using national security courts rather than Presidential (constitutional) or Congressional (statutory) military commissions would leave the latter to deal with matters to which they are best suited, namely, quick trials of crimes committed by prisoners of war while in detention, and trials in theaters of war where the civilian courts are not functioning. It would eliminate their use in settings such as this where trials occur for conduct done years earlier before the prisoner was caught and where there is no public policy need to have the military conduct trials because the ordinary justice system is gone. Yet it would address the unusual nature of the crimes charged, the need for evidentiary security, the difficulty of acquiring evidence, and the quasi-military nature of the conflict that gave rise to the proceedings.

While I agree with almost all his proposals, I am queasy about closing the trials across the board. I appreciate the need for military secrecy and national security. But I think that those needs can be met by means short of closing the trial altogether, such as by closing the trial only when such sensitive evidence is presented, by having rules that redact sensitive information from whatever evidence is introduced, and by preventing the discussion of sensitive information by the accused’s attorneys or the prosecutors while court is open or to anyone outside the courtroom, under criminal penalty. If our concern is the appearance of justice, I am not sure that having a few selected outside representatives who may have their own political agendas (why, on Earth, would anyone trust the U.N.?) will provide that appearance.

The other thing to note is that this would only apply to criminal trials of detainees, not to the procedures for determining whether someone should be held simply as an enemy combatant. Those procedures, it seems to me, are satisfied by the determination and review system set up by Congress and the President. On that last point, I have been clear that the Supreme Court’s decision in Boumediene this past June is simply indefensible as a matter of constitutional law.