Friday, May 01, 2009

Kudos to Andrew McCarthy !

Andrew McCarthy's Letter to Attorney General Holder
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

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
[administration'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

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 theUnited 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,


Andrew C. McCarthy
cc: Sylvia T. Kaser and John DePue
National Security Division, Counterterrorism Section


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