In an article noting a gradual but measurable increase in CIA’s use of unmanned aerial vehicles (UAVs) to assassinate terrorists I was struck by how ironic, predictable and asinine was the criticism by human rights groups.

[Wa. Post] About 20 percent of CIA analysts are now “targeters” scanning data for individuals to recruit, arrest or place in the cross­hairs of a drone. The skill is in such demand that the CIA made targeting a designated career track five years ago, meaning analysts can collect raises and promotions without having to leave the targeting field.

Critics, including some in the U.S. intelligence community, contend that the CIA’s embrace of “kinetic” operations, as they are known, has diverted the agency from its traditional espionage mission and undermined its ability to make sense of global developments such as the Arab Spring.

Human rights groups go further, saying the CIA now functions as a military force beyond the accountability that the United States has historically demanded of its armed services. The CIA doesn’t officially acknowledge the drone program, let alone provide public explanation about who shoots and who dies, and by what rules.

“We’re seeing the CIA turn into more of a paramilitary organization without the oversight and accountability that we traditionally expect of the military,” said Hina Shamsi, the director of the National Security Project of the American Civil Liberties Union.

Now, these are the same human rights groups that have criticized all non-lethal avenues of action that the CIA could possibly take. Human rights groups like the ACLU were against enhanced interrogation, against interning terrorists as POWs at Guantanamo and other military facilities (another irony considering they had for so long lobbied that Taliban and al Qaeda terrorists be treated as standard prisoners of war, such as German and Japanese POWs kept in military camps until the end of the Second World War), against rendition, against solitary confinement (seriously), against military tribunals, even against the same kind of wiretapping and hidden surveillance that has been employed against organized crime for decades. Having used friendly court districts packed with bleeding-heart liberal judges to sue all possible non-lethal actions that the federal government could potentially take against enemies who disguise themselves as civilians, hijack aircraft and slam them into buildings, it is only natural that this government decided that the best way to deal with terrorists was to kill them rather than capture them.

What else did they expect would happen?

Despite the favorable outcome a week ago, it doesn’t change the fact that the Obama Democrats are still woefully wrongheaded on our counter-terrorism policies. Here’s Bill McGurn:

During the 2008 campaign, for example, Mr. Obama asserted it was “the fact” that Mr. Bush “championed a strategy that distracted us from capturing bin Laden, that focused on Iraq, that had nothing to do with 9/11.” Now, however, we learn that we discovered the courier’s close tie to bin Laden through a top al Qaeda operative, Hassan Ghul, captured in 2004 . . . in Iraq.

During the campaign, we learned that waterboarding and other enhanced interrogations were “torture” plain and simple—”something that undermines our long-term security.” Now we learn that these interrogations in fact gave us operable clues about the courier’s identity.

During the campaign, Mr. Obama told a crowd at an Iowa rally that he was “frustrated with warrantless wiretaps and the undermining of our civil liberties”—and he voted against allowing the National Security Agency to listen in on foreign terrorists calling the U.S. (before flip-flopping on the issue six months later). Now we learn that intercepts of overseas phone calls helped give us the courier’s real name.

So obvious are these connections that Mr. Obama’s smallness in not admitting them is now working against him. For it invites the question that both Tim Pawlenty and Rick Santorum effectively raised in last week’s debate among would-be GOP contenders: Would we ever have gotten bin Laden if then-Sen. Obama’s policies had been put into effect instead of Mr. Bush’s?

… If human intelligence is so vital—as we saw in the strike on Abbottabad—why does the administration have no plan for capturing, detaining and interrogating terrorists? With Pakistan having shown pretty clearly how untrustworthy it is, does it really make sense to take the CIA out of the interrogation business and rely on the Pakistanis for information? And so forth.

In short, the issue is not who deserves credit for getting bin Laden, but what policies will best keep America free from attack going forward.

The following excerpts are taken from Marc Thiessen’s book Courting Disaster — and relevant to the discussion post below regarding Obama Justice Department officials who worked previously defending terrorists (point #3 is huge):

Others say that the lawyers at these firms are in fact following a  great American tradition, in which everyone gets a lawyer and their  day in court. Not so, says Andy McCarthy, the former Assistant  U.S. Attorney who put Omar Abdel-Rahman (the blind sheik)  behind bars for the first bombing of the World Trade Center in  1993.

“We need to be clear about what the American tradition is,”  McCarthy says. “The American tradition is that the 6th Amendment  guarantees the accused-that means somebody who has been  indicted or otherwise charged with a crime-a right to counsel. But  that right only exists if you are accused, which means you are someone   who the government has brought into the civilian criminal justice   system and lodged charges against. ”

The terrorists at Guantanamo, McCarthy says, do not qualify  because they have not been brought into the civilian justice system  for criminal trial. “They are being held as enemy combatants in a  war which has been authorized by Congress.”

**********
Indeed, when the lawyers began litigating these cases, there was no precedent for a right to representation for enemy combatants. McCarthy says, “We’ve had around 5 million prisoners of war in the history of the United States-that’s probably a conservative estimate. Before 2004, it would have been absurd to suggest that enemy combatants in a war had a systematic right of access to U.S. courts.”

**********

More than that, these lawyers, no doubt intentionally, are  encouraging enemy combatants to violate the laws of war. As former   Defense Department General Counsel Jim Haynes explained in a 2008 speech, “During World War II, the United States detained  more than 400,000 German and Italian prisoners of war in camps  sprinkled around the United States, and had zero successful habeas  petitions. Today, we have less than 300 unlawful combatants  detained at Guantanamo Bay, Cuba, and 246 ongoing habeas cases  to go with them…. The legal process afforded these detainees far  exceeds anything that German or Italian soldiers enjoyed at any  time during their captivity within our borders.”

The danger, according to Haynes, is that, “If you give more protections   and privileges to Al Qaeda fighters than to lawful combatants, then you will strip away any legal incentives for people to fight  according to the rules…. You encourage countries and groups to  develop corps of unlawful fighters. Ultimately, you increase the savagery of future conflicts.”

Haynes asks: Why stop at Guantanamo? “Coalition forces hold  tens of thousands of detainees in Iraq and over a thousand in Afghanistan. If the detainees in Cuba receive habeas, should those  detainees in Iraq and Afghanistan receive it as well? Instead of hundreds,   why not tens of thousands of military detainee habeas cases  in federal courts?”" These habeas corpus cases, Haynes says, are  creating “an incentive to violate the laws of war…. What’s in it for  any foe of the United States to abide by those rules if one gets better treatment upon capture by violating them?”

**********

In fact, Guantanamo detainees now enjoy rights far beyond those  afforded to prisoners of war with full Geneva protections. Nothing  in the Geneva Conventions provides POWs with the right to counsel, access to the courts to challenge their detention, or the opportunity to be released prior to the end of hostilities. Yet thanks to the habeas corpus campaign, al Qaeda terrorists who violate the laws  of war enjoy all these privileges.

There’s an interesting debate between two former Bush Administration officials regarding the Obama’s  attempt to hide the fact that many of the policy-makers in the Justice Department previously defended al-Qaeda and Taliban detainees in private practice. Both Michael Mukasey, former U.S. attorney general, and Marc Thiessen, former Bush adviser, make comparisons to the Democrats smearing of and even attempting to disbar Bush lawyers (such as John Yoo and Jay Bybee) who simply did their job and provided legal advice regarding topics like enhanced interrogation techniques (EIT) and legal versus illegal combatant status.

Mukasey, writing in the WSJ, opines that just because Democrats ruined the careers of Bush lawyers Republicans should not react in kind towards Obama Justice department lawyers who previously defended terrorists (and now write policy on detainees, Guantanamo, etc.). Conversely, Thiessen, in the Washington Post, argues that Republicans are asking legitimate questions about Eric Holder’s Justice lawyers.

Thiessen writes, “The standard today seems to be that you can say or do anything when it comes to the Bush lawyers who defended America against the terrorists. But if you publish an Internet ad or ask legitimate questions about Obama administration lawyers who defended America’s terrorist enemies, you are engaged in a McCarthyite witch hunt.” That’s absoluely accurate, and just the latest example in a never-ending cycle of Liberal selective outrage and media slant.

More to the point, however, having read both arguments, it appears that Mukasey is defending a point that many Republicans (Thiessen, but not all mind you) are not denying: the right of legal council for the accused, even dirtbags.

[Mukasey] A lawyer who represents a party in a contested matter has an ethical obligation to make any and all tenable legal arguments that will help that party. A lawyer in public service, particularly one dealing with sensitive matters of national security, has the obligation to authorize any step or practice the law permits in order to keep the nation and its citizens safe. And a lawyer who undertakes to represent someone whom his neighbors—perhaps rightly—revile as a threat to the public welfare is obligated to bring his talents to bear just as forcefully in favor of that client as he would if he were representing Capt. Alfred Dreyfus, the French artillery officer who in 1895 was found guilty of treason and sent to Devil’s Island for little more than being Jewish.

Nice not-so-subtle use of the race card there, eh? However, what conservatives like Thiessen or Michelle Malkin are arguing is a point of TRANSPARENCY. No doubt Thiessen and Malkin are otherwise outraged, but their first argument is that if Liberals are so very proud of the fact that lawyers who defended terrorists are now serving in very the Justice Department commanded to try these terrorist then why is Eric Holder and the Obama Administration desperately trying to gloss it over or actively obfuscate the truth?

The next argument is one of conflict of interest. Conservatives aren’t necessarily saying no representation for terrorists (a huge myth, by the way, as all Guantanamo detainees have for years both had lawyers and had judicial reviews, basically trials), but saying first that domestic criminal trials are entirely inappropriate for a variety of reasons including the loss of intelligence needed to destroy terror networks and win wars, and second, that lawyers previously charged with protecting al-Qaeda terrorists shouldn’t have the job of trying them now.

[Thiessen] Would most Americans want to know if the Justice Department had hired a bunch of mob lawyers and put them in charge of mob cases? Or a group of drug cartel lawyers and put them in charge of drug cases? Would they want their elected representatives to find out who these lawyers were, which mob bosses and drug lords they had worked for, and what roles they were now playing at the Justice Department? Of course they would — and rightly so. … Should a lawyer who advocates setting terrorists free, knowing they may go on to kill Americans, have any role in setting U.S. detention policy? My hunch is that most Americans would say no.

This is accurate, and the fact that Obama and Holder are looking to move past the criticism instead of defending the practice tells one that they believe it is accurate as well.

Deputy National Security Advisor for Homeland Security John Brennan blasts critics of the Obama administration for their handling of Christmas Day bomb plotter Umar Farouk Abdulmutallab, saying among other things, doing so, “only serve the goals of al-Qaeda.” So much for dissension being “the highest form of patriotism.” These same hypocrites cried foul after any subtle insinuation of the same by the Bush administration, but now the shoebomb is on the other foot, I suppose.

Unfortunately for Obama, the critics are far more swift than Mr. Brennan.

Take, for example, the retort below by former Bush official, Mark Thiessen. (Thiessen recently authored an excellent summation of waterboarding, intelligence gathering, etc., and the myriad of plot we’ve prevented since 9-11, titled “Courting Disaster,” and I highly recommend it).

The fact is the Obama administration — and Brennan in particular — are on the defensive over the mishandling of Abdulmutallab, and with good reason. So they are flailing about, lashing out at their detractors and coming up with a series of confused, contradictory, and demonstrably false excuses for their egregious string of errors.

This weekend, for example, Brennan claimed on Meet the Press that he informed key Republican members of Congress that the Christmas bomber was in FBI custody, and said “They knew that ‘in FBI custody’ means that there’s a process then you follow as far as Mirandizing and presenting him in front of a magistrate. None of those individuals raised any concerns with me at that point.”

He forgot to mention that in August 2009 the Obama administration had informed Congress and the press that terrorists questioned by the FBI, as part of its High-Value Interrogation Group, would not automatically be Mirandized. According to the Washington Post, “Interrogators will not necessarily read detainees their rights before questioning, instead making that decision on a case-by-case basis, officials said. … ‘It’s not going to, certainly, be automatic in any regard that they are going to be Mirandized,’ one official said, referring to the practice of reading defendants their rights. ‘Nor will it be automatic that they are not Mirandized.’” Whoops.

This is only the first of many whoppers Brennan has told since the scandal broke. In his USA Today op-ed, writes: “Would-be shoe bomber Richard Reid was read his Miranda rights five minutes after being taken off a plane he tried to blow up. The same people who criticize the president today were silent back then.” He fails to mention that Reid was captured just a few weeks after the 9/11 attacks, when they system of military commissions was not yet up and running, and the authority to hold terrorists captured inside the U.S. as enemy combatants had not yet been affirmed. (And, by the way, since when is “we’re doing the same thing as Bush” the mantra of the Obama administration anyway? Didn’t Bush leave them a big “mess” on detainees that Obama had to clean up? Forgive us for being confused)

Then Brennan writes: “There have been three convictions of terrorists in the military tribunal system since 9/11, and hundreds in the criminal justice system — including high-profile terrorists such as Reid and 9/11 plotter Zacarias Moussaoui.” He fails explain why there have been only three convictions in the military tribunal system. The military commissions did not begin functioning until 2008 because of all the legal challenges from left-wing lawyers, including Eric Holder’s law firm, Covington & Burling (which, as I point out in Courting Disaster, donated about $1.2 million in free legal services to terrorist at Guantanamo Bay in 2007 alone). As for the argument that hundreds were convicted in the criminal justice system, it has been decimated by Andy McCarthy over at National Review Online. Apparently that number includes every junior extremist who got a parking ticket outside a radical mosque.

Brennan claims that reading terrorists Miranda rights was standard FBI policy under Michael Mukasey. But he neglects to mention that Mukasey forcefully affirmed the President’s wartime authority to detain terrorists captured in the United States — including U.S. citizens — as enemy combatants, both as Attorney General and as a federal judge.

Brennan claims that terrorists like Padilla and al-Marri “did not cooperate when transferred to military custody.” Release the interrogation reports and prove it. These are the same people who told us the CIA interrogation program did not work, until the declassified intelligence proved those claims to be completely wrong.

Brennan claims that “Immediately after the failed Christmas Day attack, Umar Farouk Abdulmutallab was thoroughly interrogated and provided important information.” If he was so “thoroughly” interrogated during that 50 minutes of questioning, why are we questioning him again today after he broke his five weeks of silence? Either we got everything we needed (as the Administration conveniently argued when Abdulmutallab was not speaking), or he has more information (as the administration claims now that he is speaking). Seems that initial interrogation was not so “thorough” after all.

And why on earth are they telling us that he is talking, much less what he is talking about? By sharing this information with the press, they are also sharing it with al Qaeda. The surprisingly candid explanation came from White House Deputy Press Secretary Bill Burton, who told reporters: “Ideally this information would not necessarily come out … but we made the determination that it was a good idea to make sure that people knew … that our methods here were working.” In other words, “ideally” we would not share with al Qaeda that Abdulmutallab was talking, but since we are under fire from critics for screwing this up we thought it was a “good idea” to share intelligence with the enemy.

And Brennan accuses his critics of being “politically motivated”?

Former WTC bombing prosecutor Andrew McCarthy discovers that the claim that the U.S. has Mirandized and prosecuted 300 terrorists is highly dubious.

It was just brought to my attention that, if you don’t read carefully, the phony figure of 195 convictions of “international terrorists” since 9/11 magically becomes 300 by the time the Justice Department is done with it. Last week, DOJ put out a “fact sheet” on “The Criminal Justice System as a Counterterrorism Tool.” Among other things, it claims (the italics are mine, for reasons that will become clear):

“Hundreds of terrorism suspects have been successfully prosecuted in federal court since 9/11. Today, there are more than 300 international or domestic terrorists incarcerated in U.S. federal prison facilities.”

Note first the slippery use of the word “suspect.” All this means is that a person was suspected of being a terrorist at some point in the course of an investigation. It does not mean he actually was one, that he was ever charged with an actual terrorism crime, or that he was ever convicted of such a crime.

Adds McCarthy, it matters much how many of these 300 were, say, members of an environmental or animal-rights group gone awry — after all, we’re in a war against Islamic fanatics, not PETA.

Via Michelle Malkin’s website I came across these clips from CNN Christine Amanpour’s show which pitted her and another high-brow opponent of waterboarding against former Bush speechwriter, author and proponent of waterboarding, Marc Thiessen. Generally, these types of things go bad for the waterboarding proponents because they don’t stick to the core logic behind laws of war and enemy combatants, such as:

* Geneva Conventions weren’t designed to “protect soldiers” but to give them incentives to follow the laws of war.

* What the CIA calls waterboarding isn’t the same thing as or as dangerous as or as barbaric as Khmer Rouge waterboarding or what other governments have done.

* If waterboarding is torture than we’re apparently torturing thousands of U.S. servicemen and women who go through SERE (Survive, Evade, Resist, Extract) training.

Thiessen sticks to all these points and in short kicks the arse of his detractors. His point that the waterboarding actually allows Islamic extremists to spill their guts without betraying their service to Allah is fascinating.

Because he did so well, I doubt if CNN will ever have Thiessen back on.

What’s the point of taking off our shoes at airport security if the screenings can’t pick up a myriad of explosives and detonators?

According to reports the “underwear bomb” worn by Umar Farouk Abdulmutallab was a military-grade plastic explosive called Pentaerythritol tetranitrate, or PETN, and neither that nor the detonator would have been caught by standard metal detectors. Airports in the United States have a smattering of “sniffer” booths or occasional bomb-sniffing dogs that would have caught such explosives, but for the most part it would be pure luck if an explosive-laden terrorist was sent to the proper “sniffer” line.

So now we know that the vast majority of security we’ve undergone for the past 8 years has been a facade, designed to make us feel better about flying. At the end of the day it’s really vigilant passengers and malfunctioning bombs that have saved lives. While Abdulmutallab and “shoebomber” Richard Reid have both been categorized as bungling nincompoops it’s just a matter of time before one of these bombs works as designed and kills a slew of people.

Meanwhile, Umar Farouk Abdulmutallab clearly received aid. If the presence of military explosives wasn’t enough to show that, at least one eye-witness claims that another man coaxed Amsterdam security officials into allowing Abdulmutallab get on the plane even though he had no passport. Abdulmutallab has since told federal authorities that there are others like him in Yemen preparing to bomb airliners. Well, that’s a no-brainer, or at least it should be. But don’t tell that to the Obama administration, which just this month sent another 6 Guantanamo detainees back to Yemen! (Of the 200 remaining detainees, 91 of them are from Yemen). Many released detainees have since returned to their terrorist roots. Indeed, Said Ali al-Shihri was released in 2007, and although Saudi, has since become the “deputy leader of Al Qaeda’s Yemeni branch.”

Not very reassuring, is it?

And yet here’s our Homeland Security Secretary, Janet Napolitano, telling us everything is fine. She’s already retracted what was a carefully worded statement that “once the incident occurred, everything went according to clockwork,” which is like saying everything went according to plan after the fox ate all the chickens, or, after all the animals left the proverbial barn. What a joke she’s become. She now agrees, after much legitimate criticism, that the system failed. No kidding? We need an overpaid bureaucrat to tell us that?

And while we’re on topic, what’s the point of all these different agency no-fly lists if they’re all so big and uncoordinated that a guy like Abdulmutallab — no passport, on at least one watch list, buys a one-way ticket, has no luggage, his own father attempts to warn authorities about him — can get on an airplane?

But we’ll just keep taking our shoes off…

Oh, and can we go back to calling it The War on Terror again? Because apparently al Qaeda didn’t get the memo or know that Obama pressed a “reset” button.

As usual Charles Krathammer best summarizes the folly of trying KSM in civilian court.

So why is Attorney General Eric Holder doing this? Ostensibly, to demonstrate to the world the superiority of our system, where the rule of law and the fair trial reign.

Really? What happens if KSM (and his co-defendants) “do not get convicted,” asked Senate Judiciary Committee member Herb Kohl. “Failure is not an option,” replied Holder. Not an option? Doesn’t the presumption of innocence, er, presume that prosecutorial failure — acquittal, hung jury — is an option? By undermining that presumption, Holder is undermining the fairness of the trial, the demonstration of which is the alleged rationale for putting on this show in the first place.

Moreover, everyone knows that whatever the outcome of the trial, KSM will never walk free. He will spend the rest of his natural life in U.S. custody. Which makes the proceedings a farcical show trial from the very beginning.

Apart from the fact that any such trial will be a security nightmare and a terror threat to New York — what better propaganda-by-deed than blowing up the courtroom, making KSM a martyr and turning the judge, jury and spectators into fresh victims? — it will endanger U.S. security. Civilian courts with broad rights of cross-examination and discovery give terrorists access to crucial information about intelligence sources and methods.

That’s precisely what happened during the civilian New York trial of the 1993 World Trade Center bombers. The prosecution was forced to turn over to the defense a list of 200 unindicted co-conspirators, including the name Osama bin Laden. “Within 10 days, a copy of that list reached bin Laden in Khartoum,” wrote former attorney general Michael Mukasey, the presiding judge at that trial, “letting him know that his connection to that case had been discovered.”

Finally, there’s the moral logic. It’s not as if Holder opposes military commissions on principle. On the same day he sent KSM to a civilian trial in New York, Holder announced he was sending Abd al-Rahim al-Nashiri, (accused) mastermind of the attack on the USS Cole, to a military tribunal.

By what logic? In his congressional testimony Wednesday, Holder was utterly incoherent in trying to explain. In his Nov. 13 news conference, he seemed to be saying that if you attack a civilian target, as in 9/11, you get a civilian trial; a military target like the Cole, and you get a military tribunal.

What a perverse moral calculus. Which is the war crime — an attack on defenseless civilians or an attack on a military target such as a warship, an accepted act of war that the United States itself has engaged in countless times?

By what possible moral reasoning, then, does KSM, who perpetrates the obvious and egregious war crime, receive the special protections and constitutional niceties of a civilian courtroom, while he who attacked a warship is relegated to a military tribunal?

Moreover, the incentive offered any jihadist is as irresistible as it is perverse: Kill as many civilians as possible on American soil and Holder will give you Miranda rights, a lawyer, a propaganda platform — everything but your own blog.

Here’s a question as you read this — if the federal government can try KSM in federal court without him ever been read his Miranda warning, what’s from stopping them from doing the same to a U.S. citizen?

[NPR] SEN. GRAHAM: Well, let me ask you this. Okay, let me ask you this. Let’s say we capture him tomorrow. When does custodial interrogation begin in his case?

If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?

ATTY GEN. HOLDER: Again I’m not — that all depends. I mean, the notion that we –

SEN. GRAHAM: Well, it does not depend. If you’re going to prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs the defendant, the criminal defendant, is entitled to a lawyer and to be informed of their right to remain silent.

The big problem I have is that you’re criminalizing the war, that if we caught bin Laden tomorrow, we’d have mixed theories and we couldn’t turn him over — to the CIA, the FBI or military intelligence — for an interrogation on the battlefield, because now we’re saying that he is subject to criminal court in the United States. And you’re confusing the people fighting this war.

What would you tell the military commander who captured him? Would you tell him, “You must read him his rights and give him a lawyer”? And if you didn’t tell him that, would you jeopardize the prosecution in a federal court?

ATTY GEN. HOLDER: We have captured thousands of people on the battlefield, only a few of which have actually been given their Miranda warnings.

With regard to bin Laden and the desire or the need for statements from him, the case against him at this point is so overwhelming that we do not need to –

SEN. GRAHAM: Mr. Attorney General, my only point — the only point I’m making, that if we’re going to use federal court as a disposition for terrorists, you take everything that comes with being in federal court. And what comes with being in federal court is that
the rules in this country, unlike military law — you can have military operations, you can interrogate somebody for military intelligence purposes, and the law-enforcement rights do not attach.

But under domestic criminal law, the moment the person is in the hands of the United States government, they’re entitled to be told they have a right to a lawyer and can remain silent. And if we go down that road, we’re going to make this country less safe. That is my problem with what you have done.

You’re a fine man. I know you want to do everything to help this country be safe, but I think you’ve made a fundamental mistake here. You have taken a wartime model that will allow us flexibility when it comes to intelligence gathering, and you have compromised this country’s ability to deal with people who are at war with us, by interjecting into this system the possibility that they may be given the same constitutional rights as any American citizen.

And the main reason that KSM is going to court apparently is because the people he decided to kill were here in America and mostly civilian, and the person going into military court decided to kill some military members overseas. I think that is a perversion of the justice system.

Holder and later Sen. Patrick Leahy (D-Vt.) went on to retort that Graham’s question about custodial interrogation was a “red herring,” because the scenario was “unrealistic” and “For one thing, capturing Osama bin Laden — we’ve had enough on him, we don’t need to interrogate him.”

They wouldn’t interrogate Osama bin Laden? Really? And that’s supposed to make us feel better?