An extraordinary article by Andrew McCarthy, whom I had the pleasure of meeting last year.
McCarthy was in charge of the prosecution of the first World Trade Center attack, an experience he described in his book Willful Blindness: Memoir of the Jihad. He was invited to attend a Department of Justice meeting of the Detention Policy Task Force this week, and he declined. Here’s why:
From my perspective, though, I’m a lawyer who’s been asked to give advice to the government by an administration that says such advice could lead to criminal investigation and professional discipline. And although the advice I would give is firmly rooted in the laws of war, and was reaffirmed by the Supreme Court in the 2004 Hamdi decision, this administration regards such detention as running afoul of the rule of law. Thus, as I wrote to the attorney general:
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.
The second reason for declining the Justice Department’s request is that the exercise known as the “President’s Detention Policy Task Force” is a farce. The administration has already settled on a detainee policy: It is simply going to release trained jihadists. Holder said as much in his Germany speech. In the irrational world he inhabits, the existence of Guantanamo Bay, where dangerous terrorists cannot harm anyone, is more of a security threat than jihadists roaming free, plotting to menace and murder us. That’s why the administration just released Binyam Mohammed, who conspired with Khalid Sheikh Mohammed and “Dirty Bomber” Jose Padilla to execute post-9/11 bombings in American cities. That’s why Holder will soon announce (perhaps as early as today) that the Chinese Uighur detainees — who’ve been affiliated with a designated terrorist organization and who’ve received paramilitary training at al-Qaeda camps — will not only be set free in the United States but will, according to National Intelligence Director Dennis Blair, subsist on the support of the American taxpayer.
For all their talk about “the rule of law,” President Obama and Attorney General Holder have to know this policy is illegal. In 2005, Congress provided in the REAL ID Act that aliens who’ve been affiliated with a terrorist organization or who’ve received paramilitary training (which has been a staple of virtually every jihadist plot against the United States) are excludable from the United States. Moreover, even if the administration were not riding roughshod over federal immigration law, it is endangering the American people. The sophistry required to believe that having people who want to kill us locked up is more perilous than loosing them on civilian populations is so absurd it nearly defies description.
To satisfy his antiwar base and to put paid to commitments offered by his top campaign advisers (like Eric Holder), President Obama promised to close Guantanamo Bay within a year, despite having no plan for what to do about the terrorists there, many of whom cannot be tried under the standards of the civilian justice system. Military proceedings are anathema to the administration — many of whose lawyers either represented the Gitmo detainees or come from firms that did. (Holder’s former firm, for example, brags on its website that it represents detainees in their wartime lawsuits against the American people.) And the administration is evidently not very interested in exploring novel systems of preventive detention, such as my proposal for a “national security court,” which would require extensive legislative work. Instead, the Obama policy is simply to release our enemies — knowing many are certain to return to the jihad — if that’s what it takes to comply with the president’s promise to close Gitmo by January.
Consequently, the President’s Detention Policy Task Force is not an effort to arrive at the best counterterrorism policy. It is an effort to justify a bad policy that has already been made — to be able to tell the American people that this suicidal approach was arrived at in consultation with experienced terrorism prosecutors and national-security officials.
You must read the entire article. While you’re at it, also read his excellent book.
The full text of the letter.