Ah, remember when the adults were in charge? Those were the days. McCarthy is magnificent here. Lots of pearls and wry smiles ........ but considering the odds and the AG, I am hardly smiling.
Andrew C. McCarthy
May 1, 2009
By email (to the Counterterrorism Division) and by regular mail:
The Honorable Eric H. Holder, Jr.
Attorney General of the United
States
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001
Dear Attorney General Holder:
This letter is respectfully submitted to inform you that I must decline the invitation to participate in the May 4 roundtable meeting the President’s Task Force on Detention Policy is convening with current and former prosecutors involved in international terrorism cases. An invitation was extended to me by trial lawyers from the Counterterrorism Section, who are members of the Task Force, which you are leading.
The invitation email (of April 14) indicates that the meeting is part of an
ongoing effort to identify lawful policies on the detention and disposition of
alien enemy combatants—or what the Department now calls “individuals captured or
apprehended in connection with armed conflicts and counterterrorism operations.”
I admire the lawyers of the Counterterrorism Division, and I do not question
their good faith. Nevertheless, it is quite clear—most recently, from your
provocative remarks on Wednesday in Germany—that the Obama administration has
already settled on a policy of releasing trained jihadists (including releasing
some of them into the United States). Whatever the good intentions of the
organizers, the meeting will obviously be used by the administration to claim
that its policy was arrived at in consultation with current and former
government officials experienced in terrorism cases and national security
issues. I deeply disagree with this policy, which I believe is a violation of
federal law and a betrayal of the president’s first obligation to protect the
American people. Under the circumstances, I think the better course is to
register my dissent, rather than be used as a prop.
Moreover, in light of
public statements by both you and the President, it is dismayingly clear that,
under your leadership, the Justice Department takes the position that a lawyer
who in good faith offers legal advice to government policy makers—like the
government lawyers who offered good faith advice on interrogation policy—may be
subject to investigation and prosecution for the content of that advice, in
addition to empty but professionally damaging accusations of ethical
misconduct. Given that stance, any prudent lawyer would have to hesitate before
offering advice to the government.
Beyond that, as elucidated in my
writing (including my proposal for a new national security court, which I
understand the Task Force has perused), I believe alien enemy combatants should
be detained at Guantanamo Bay (or a facility like it) until the conclusion of
hostilities. This national defense measure is deeply rooted in the venerable
laws of war and was reaffirmed by the Supreme Court in the 2004 Hamdi
case. Yet, as recently as Wednesday, you asserted that, in your considered
judgment, such notions violate America’s “commitment to the rule of law.”
Indeed, you elaborated, “Nothing symbolizes our [adminstration’s] new course
more than our decision to close the prison at Guantanamo Bay…. President Obama
believes, and I strongly agree, that Guantanamo has come to represent a time and
an approach that we want to put behind us: a disregard for our
centuries-long respect for the rule of law[.]” (Emphasis
added.)
Given your policy of conducting ruinous criminal and ethics
investigations of lawyers over the advice they offer the government, and your
specific position that the wartime detention I would endorse is tantamount to a
violation of law, it makes little sense for me to attend the Task Force
meeting. After all, my choice would be to remain silent or risk jeopardizing
myself.
For what it may be worth, I will say this much. For eight years, we
have had a robust debate in the United States about how to handle alien
terrorists captured during a defensive war authorized by Congress after nearly
3000 of our fellow Americans were annihilated. Essentially, there have been two
camps. One calls for prosecution in the civilian criminal justice system, the
strategy used throughout the 1990s. The other calls for a military justice
approach of combatant detention and war-crimes prosecutions by military
commission. Because each theory has its downsides, many commentators, myself
included, have proposed a third way: a hybrid system, designed for the realities
of modern international terrorism—a new system that would address the needs to
protect our classified defense secrets and to assure Americans, as well as our
allies, that we are detaining the right people.
There are differences
in these various proposals. But their proponents, and adherents to both the
military and civilian justice approaches, have all agreed on at least one
thing: Foreign terrorists trained to execute mass-murder attacks cannot
simply be released while the war ensues and Americans are still being
targeted. We have already released too many jihadists who, as night
follows day, have resumed plotting to kill Americans. Indeed, according to
recent reports, a released Guantanamo detainee is now leading Taliban combat
operations in Afghanistan, where President Obama has just sent additional
American forces.
The Obama campaign smeared Guantanamo Bay as a human rights
blight. Consistent with that hyperbolic rhetoric, the President began his
administration by promising to close the detention camp within a year. The
President did this even though he and you (a) agree Gitmo is a top-flight prison
facility, (b) acknowledge that our nation is still at war, and (c) concede that
many Gitmo detainees are extremely dangerous terrorists who cannot be tried
under civilian court rules. Patently, the commitment to close Guantanamo Bay
within a year was made without a plan for what to do with these detainees who
cannot be tried. Consequently, the Detention Policy Task Force is not an effort
to arrive at the best policy. It is an effort to justify a bad policy that has
already been adopted: to wit, the Obama administration policy to release trained
terrorists outright if that’s what it takes to close Gitmo by
January.
Obviously, I am powerless to stop the administration from
releasing top al Qaeda operatives who planned mass-murder attacks against
American cities—like Binyam Mohammed (the accomplice of “Dirty Bomber” Jose
Padilla) whom the administration recently transferred to Britain, where he is
now at liberty and living on public assistance. I am similarly powerless to
stop the administration from admitting into the United States such alien
jihadists as the 17 remaining Uighur detainees. According to National
Intelligence Director Dennis Blair, the Uighurs will apparently live freely, on
American taxpayer assistance, despite the facts that they are affiliated with a
terrorist organization and have received terrorist paramilitary training. Under
federal immigration law (the 2005 REAL ID Act), those facts render them
excludable from the United States. The Uighurs’ impending release is thus a
remarkable development given the Obama administration’s propensity to deride its
predecessor’s purported insensitivity to the rule of law.
I am, in
addition, powerless to stop the President, as he takes these reckless steps,
from touting his Detention Policy Task Force as a demonstration of his national
security seriousness. But I can decline to participate in the charade.
Finally, let me repeat that I respect and admire the dedication of
Justice Department lawyers, whom I have tirelessly defended since I retired in
2003 as a chief assistant U.S. attorney in the Southern District of New York.
It was a unique honor to serve for nearly twenty years as a federal prosecutor,
under administrations of both parties. It was as proud a day as I have ever had
when the trial team I led was awarded the Attorney General’s Exceptional Service
Award in 1996, after we secured the convictions of Sheikh Omar Abdel Rahman and
his underlings for waging a terrorist war against the United States. I
particularly appreciated receiving the award from Attorney General Reno—as I
recounted in Willful Blindness, my book about the case, without her
steadfastness against opposition from short-sighted government officials who
wanted to release him, the “blind sheikh” would never have been indicted, much
less convicted and so deservedly sentenced to life-imprisonment. In any event,
I’ve always believed defending our nation is a duty of citizenship, not
ideology. Thus, my conservative political views aside, I’ve made myself
available to liberal and conservative groups, to Democrats and Republicans,
who’ve thought tapping my experience would be beneficial. It pains me to
decline your invitation, but the attendant circumstances leave no other
option.
Very truly yours,
/S/
Andrew C.
McCarthy
cc: Sylvia T. Kaser and John DePue
National Security
Division, Counterterrorism Section
