The Loony Left On Osama

When I say "loony left" I am referring, of course, to Noam Chomsky and his ilk. Brilliant linguist and political whack-job Chomsky has published his take on the Osama operation in the magazine Guernica.

We might ask ourselves how we would be reacting if Iraqi commandos landed at George W. Bush’s compound, assassinated him, and dumped his body in the Atlantic.

Surely Chomsky meant Saudi commandos, since I'm sure he's acutely aware that Iraq had nothing to do with 9/11. Oh, but he believes that bin Laden didn't either!

There is much talk of bin Laden’s “confession,” but that is rather like my confession that I won the Boston Marathon.

Osama Dead

A few hours ago President Obama announced that American forces killed Osama bin Laden and, importantly, captured the body. So there should be proof.

Couple of points. Obviously, I'm happy this finally happened. We haven't heard much from Osama, but he's the kind of guy who's better off dead. So good for Obama for keeping the pressure up and taking the shot when the chance came. There's no doubt the President was in the loop on the final decision.

Second, if I can be permitted a little glibness, Osama's death penalty - executed less than ten years after the crime of which he was guilty, actually came faster than the average time on death row in the United States (which stands at 169 months in the latest statistics I could find - here - and hasn't been less than 120 months since 1993).

Third, while I'm pleased Obama ordered this mission, it's just one more indication of the difference between running for President and being President. I have no doubt that, had this operation been announced during the 2008 campaign, Obama's reaction would have been something like: Great, but we should have captured him and tried him with due process. He now realizes that Presidents often do not have that luxury.

Mirandizing Terrorists

There's recently been some discussion about whether we should have (or should, full stop) Mirandize suspected terror wannabe Faisal Shahzad. Commentators on both left and right have suggested that perhaps we should not.

He should be Mirandized and accorded all other lawful treatments guaranteed under our Constitution and any applicable statutes. This man (a) is an American citizen (recently naturalized, but so what?) and (b) has been arrested on American soil as a suspect in a crime committed in America. This has no relation whatever to the Guantanamo case of a foreign terrorist breaking the Geneva Convention on foreign soil. Nor is it similar to the Abdulmutallab case in which the suspect was a Nigerian citizen who had not yet legally entered the United States (and was caught red-handed, or should we say "red-pantsed").

But there is no provision in law for a recently naturalized citizen to be treated any differently from a birthright citizen. Given that, Shahzad has exactly the same rights as any "home-grown" terrorist, such as Timothy McVeigh. If Shahzad is found to have committed an act of war against the United States, he can be stripped of his citizenship (not that I think this would actually happen). Even then, he would be a foreign citizen who had been caught in America committing a crime on American soil. Such a person is entitled to Miranda warning.

"The Constitution is not a suicide pact", as they say. But Miranda procedures account for this: there is the public safety exception. The exception is inapplicable in this case, as Shahzad was captured after the imminent threat had been eliminated.

If there is a public-safety need to create an exception to Miranda, then let the Congress do so and the Supreme Court test its Constitutionality. In nearly nine years since 9/11, such an exception has not been created. Until that time, the criminal justice system should not make ad-hoc exceptions when convenient.

Assassinating Awlaki

There is a bit of back-and-forth on the Corner about President Obama's announcement that he is targeting Anwar al-Awlaki, a member of Al Qaeda in the Arabian Peninsula. The complicating factor here is that Awlaki is an American citizen. Thus, as Andy McCarthy puts it:

If an alien enemy combatant, such as Khalid Sheikh Mohammed, mass-murders 3000 Americans and is then captured outside the U.S. in wartime, we need to bring him to the United States and give him a civilian trial with all attendant due process rights. If an alien enemy combatant is sending emails from outside the U.S. to an al Qaeda cell inside the U.S., the commander-in-chief needs a judge's permission (on a showing of probable cause) to intercept those communications. If an American citizen terrorist outside the United States — say, Awlaki in Yemen — is calling or emailing the United States (or anyplace else), the commander-in-chief needs a judge's permission to intercept those communications. If we capture an alien enemy combatant conducting war operations against the U.S. overseas, we should give him Miranda warnings, a judicial right to challenge his detention as a war prisoner, and (quite likely) a civilian trial. But, if the commander-in-chief decides to short-circuit the whole menu of civil rights by killing an American citizen, that's fine — no due process, no interference by a judge, no Miranda, no nothing.

McCarthy thinks that's fine, because in this case he agrees with the President that Awlaki is a "proven threat." But Kevin Williamson demurs:

Odious as Awlaki is, this seems to me to be setting an awful and reckless precedent. Consider how "interstate commerce" has been redefined over time to cover that which is neither interstate nor commerce, for the sake of political expediency. It is easy to imagine "national security" being treated the same way, particularly in an open-ended conflict against a loosely defined enemy. And we aren't assassinating U.S. citizens under the rubric of interstate commerce.

The solution here, it seems to me, is to follow established procedures for stripping Awlaki of citizenship, then proceed in the interests of national security. It used to be common practice to strip traitors of citizenship, but the notion of "treason" seems to lie too close to "nationalism" (that ugly word) to be invoked much these days. Still, if a court can demonstrate that Awlaki has taken up arms against the U.S., he could be stripped of citizenship.

Furthermore, while I agree with Williamson that this sets a dangerous precedent, I don't think his argument would be at all persuasive to the President. He is a "pragmatist", you see, and as such is likely to look at each problem as a separate, distinguished entity, not as a variation on a theme whose general solution has already been established by precedent. A pragmatist wants to have the freedom to pick the "best" solution, unconstrained by precedent.

The problem with this view is that others will view your actions as precedent regardless of whether you do. People want predictability. Ours is also supposed to be a nation of laws and not of men. That is, given a conflict between competing principles, law is supposed to provide an impartial resolution; there is not to be recourse to the partiality of a human. (It is an unreachable goal, of course, if for no other reason than that the law is interpreted by human judges. But the principle remains.) Law and precedent are inextricably related. Obama and the "pragmatists" do not wish to be constrained by the law, or precedent, when they are inconvenient. The Awlaki case is just one small example among many.

Morgenthau on the Terrorist Trials

Former Manhattan District Attorney Robert Morgenthau speaks to Brian Lehrer about military versus civilian trials for KSM and terrorists in general.

Morgenthau believes civilian courts should be used because they have "more experience handling complicated cases." But he doesn't believe they should be held in Manhattan. I'm not sure why experience should be a major issue (and neither our civilian nor military courts have any experience with a "suspect" - I guess we have to call him - like KSM).

Lehrer asks Morgenthau about Miranda rights, and this is where the former DA really goes off the rails, in my opinion. He believes we ought to treat terrorists fairly, because it will help our cause in converting the Arab world to democracy. As far as it goes, that's fine, but he doesn't seem to understand the issues involved:

Lehrer: But is anything lost, say, in being able to learn what's really going on in Yemen after that suspect on Christmas Day was arrested by reading him Miranda rights and letting him have a civilian lawyer after just a few hours [actually, 50 minutes - J]? Do you think anything is lost in terms of national security?

Morgenthau: No, I think we should have just been listening to his father, and we would have gotten all the information that was necessary.

I'm not sure here whether Morgenthau is being flippant to avoid answering an uncomfortable question, or really believes this. But it's a shame Lehrer didn't press this point at least a bit. To put the case in terms that a former Manhattan DA ought to understand, suppose a low-ranking member of the Gambino crime family was arrested while attempting to carry out a hit. This arrest has value in unwinding other Gambino plots. It makes no difference whether the hitman's father turned him in; that's just a one-time lucky break. Real intelligence can't just be based on lucky breaks. Surely Morgenthau knows this.

Lehrer asks Morgenthau about this clip by Joe Biden:

Looking at the evidence that has been made available to me as part of the executive branch of the prosecuting team [I don't know exactly what Biden means here, but I think we get his drift - J], I am absolutely convinced - I am absolutely convinced - that [KSM] will be put away for a long, long time.

Morgenthau believes this is inappropriate, which of course it is. It undermines the whole point he made earlier that showcasing a fair trial for KSM would help to convert the Arab world to our cause. Surely seeing our President, Vice President, and Attorney General all agree that KSM is definitely guilty and will be convicted negates any positive effect the trial might have in that regard. If convicted, they can call it a show trial (and they'll have a point). If not convicted... well, we needn't worry about that, because it won't happen. And that's the problem. The Obama administration has gotten themselves into an untenable position, where it's politically impossible to allow an acquittal, but diplomatically unhelpful to make one impossible. The whole thing could have been avoided by simply finishing the military trial that was already underway when Obama was inaugurated.

Morgenthau tries to burnish his anti-terrorism cred with this anecdote:

Morgenthau: I was on the receiving end of seventeen suicide attacks - seventeen - they called them kamikaze attacks in those days. I was on a picket station on a destroyer in Okinawa. So I'm not soft on these guys, and I know what our people have gone through in dealing with them. But I think we want to be known as a country that is fair.

Lehrer: Do you see a moral difference between the suicide bombers who were the kamikazes for Japan in World War II, and these suicide bombers [like KSM]?

Morgenthau: No.

This is a stunning conclusion. The kamikazes in WWII flew aircraft with Japanese emblems on them, in a war zone. It's certainly true that they did horrific damage to American forces, and it's understandable that someone who fought against them, and lost friends to them, would view them negatively. But there simply is a difference between the kamikazes, who flew military aircraft into military targets in the midst of a declared war, and the terrorists who masqueraded as civilians, took over civilian aircraft, and flew them into civilian buildings. That a former DA can't see that, or won't recognize it, is troubling in the extreme.

Remembering 9/11

That morning eight years ago I was at work when the first plane hit. A colleague of mine heard the news and told me, but I just assumed it was a small private plane that had been in some sort of accident. Busy with other projects, I didn't give it much thought.

Then the second plane hit, and it was obvious this was no accident. At a 21st century workplace, naturally the first place we looked for more information was the Web. Ominously, cnn.com was not responding. But we learned pretty quickly that the two planes were not small aircraft, but huge jetliners.

The Twin Towers were visible from my office building, so we walked over to the window to see what was going on. The towers, normally just mirrored glimmers on the horizon, were clearly on fire, smoke pouring into the clear morning sky. I tried calling my wife on her cell phone, but got the message that all circuits were busy. I left a message at home instead.

By now we were hearing rumors, some peddled by CNN: a plane had been shot down by the Air Force; a plane had crashed into the Pentagon; another half-dozen airliners in U.S. airspace were unaccounted for. News Web sites, overwhelmed with traffic, had reverted to a minimalist text-only mode to make reports, with just a few pictures of the unfolding events. It was there we saw the first close-up images of people jumping, of brave firefighters, of the Pentagon in flames.

My wife called me around the time the south tower fell. She had been running errands that morning and had just heard what was going on when she arrived back home. She was horrified; I will never forget the choked sound of her voice on the phone.

There was a television in one of our offices; a few of us congregated there to watch the efforts to save the north tower. Surreally, from that office we could see the actual tower through the window. When it finally collapsed, I could see the dust and smoke billowing in the distance.

Work had come to a standstill, of course. By now it was clear that the capital markets would be closed that day; our business, dependent on those markets, thus had no real reason to stay open. A few of us discussed the processing consequences of being closed unexpectedly for a day or more. We took the necessary steps, and then we all went home to our families. It was a Tuesday; the office would not open again until the following Monday.

We spent the rest of the day watching the news and calling friends and family to make sure everyone was safe. It was quickly clear that this would be a transformative event in our history: we would for a long time refer to the "post-9/11 world" versus the "pre-9/11 world." On that day we were shaken out of our post-Cold War reverie, and reminded that there was still evil in the world, that demanded to be fought if our way of life was to continue.