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?

[Politico] During a round of network television interviews conducted during Obama’s visit to China, the president was asked about those who find it offensive that Mohammed will receive all the rights normally accorded to U.S. citizens when they are charged with a crime.

“I don’t think it will be offensive at all when he’s convicted and when the death penalty is applied to him,” Obama told NBC’s Chuck Todd.

So let me get this straight. The primary rationale, we were told for years, to try Guantanamo detainees in our civilian federal court system was to improve our image and standing around the world. Indeed, back in January 2009 Attorney General Eric Holder said the following: “We will carry out our constitutional duties within the framework set forth by the founders and with the humility to recognize that congressional oversight and judicial review are necessary.”

Aside from the fact that this statement and many others like it from Democrats were both insulting to our military (who for 250 years of precedent had run effective and lawful tribunals during the Revolution, Civil War, and World Wars I and II) and factually inaccurate (military tribunals have both congressional oversight and judicial review), we now find that in just 48 hours the president and attorney general have created exactly what they claimed they wished to avoid via tribunals — the notion of a kangaroo court.

Obama’s statement above is sure to feed the perception around the world that Khalid Sheik Mohammed (KSM) cannot possibly receive a fair trial (and won’t his defense team demand a change of venue on day 1?). Similarly, Holder said the following:

“These are cases that have to be won. I don’t expect that we’ll have a contrary result [other than guilty].”

Brilliant! Holder additionally called it the “trial of the century.” The attorney general and president of the United States both confidently all but guaranteeing conviction and death penalty… How do you think that will play out on Al Jazeera? Won’t it sound like a stacked deck? The script already written? You better believe it. There’s no reset button for Islamic extremists.

Aren’t Barack Obama and Attorney General Eric Holder graduates of law school? If so, how could they make the fundamental gaffe of prejudicing the trial of Khalid Sheik Mohammed (KSM)?

The next problem is a total lack of consistency. After bashing military tribunals for so long, Holder now says that other Guantanamo detainees, such as the USS Cole bombers, will be tried in a tribunal, not in federal court! That, of course, is the better place to try them, but no doubt people will ask — including the defense lawyers — why a federal trial is good enough for the brains behind 9-11 but not good enough for his subordinate.

SEN. GRAHAM: Yeah, nor do I. But here’s my concern. Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?

ATTY GEN. HOLDER: [ACM: LONG PAUSE] I don’t know. I’d have to look at that. I think that, you know, the determination I’ve made —

SEN. GRAHAM: We’re making history here, Mr. Attorney General. I’ll answer it for you. The answer is no.

ATTY GEN. HOLDER: Well, I think —

SEN. GRAHAM: … The Ghailani case — he was indicted for the Cole bombing before 9/11. And I didn’t object to it going into federal court. But I’m telling you right now. We’re making history and we’re making bad history.

Indeed. It’s been said that the 2006 Military Tribunals Act passed bipartisianly in Congress, was crafted almost for the sole purpose of trying KSM. That’s out the window now.

Here’s Bill McGurn:

When it comes to terrorists, you would think that an al Qaeda operative who targets an American mom sitting in her office or a child on a flight back home is many degrees worse than a Taliban soldier picked up after a firefight with U.S. Army troops.

Your instinct would be correct, because at the heart of terrorism is the monstrous idea that the former is as legitimate a target as the latter. Unfortunately, by dispatching Khalid Sheikh Mohammed and other al Qaeda leaders to federal criminal court for trial, U.S. Attorney General Eric Holder will be undermining this distinction. And the perverse message that decision will send to terrorists all over this dangerous world is this: If you kill civilians on American soil you will have greater protections than if you attack our military overseas.

“A fundamental purpose of rules such as the Geneva Conventions is to give those at war an incentive for more civilized behavior—and not targeting civilians is arguably the most sacred of these principles,” says William Burck, a former federal prosecutor and Bush White House lawyer who dealt with national security issues. “It demolishes this principle to give Khalid Sheikh Mohammed even more legal protections than the Geneva Conventions provide a uniformed soldier fighting in a recognized war zone.”

We don’t often speak of incentives in war. That’s a loss, because the whole idea of, say, Geneva rights is based on the idea of providing combatants with incentives to do things that help limit the bloodiness of battle. These include wearing a uniform, carrying arms openly, not targeting civilians, and so on.

Terrorists recognize none of these things. They are best understood as associations of people plotting and carrying out war crimes, whether that means sowing fear with direct and indiscriminate attacks on marketplaces, offices and airlines—or by engaging enemy troops without distinguishing uniforms, so that the surrounding civilians essentially become used as human shields. Terrorists reject both the laws of war and the laws of American civil society. To put it another way, they reject both the authority and the obligations their legal rights imply.

None of this seems to bother Mr. Holder. Since he dropped his bombshell on Friday, much commentary has focused on the possibility that KSM might be found not guilty. That, however, is unlikely: Mr. Holder is not a fool, and everyone in the Obama administration appreciates the backlash that would occur if a KSM trial results in an acquittal. Thus, the men he will send for trial will be those against whom he has the most evidence.

The perversity here is that the overwhelming evidence of their war crimes gain them protections denied a soldier fighting in accord with the rules of war.

It even gains them more protections than their associates who attack military targets. This double standard means that the perpetrators of the USS Cole bombing are sent to military tribunals while the perpetrators of 9/11 are sent to federal court.

Andrew McCarthy has a unique perspective on the move to criminal trials. As an assistant U.S. attorney in 1993, he successfully prosecuted Omar Abdel Rahman (the “blind sheikh”) for the first bombing of the World Trade Center. Even though the cases were somewhat different—that plot was conceived, plotted and carried out on U.S. soil—Mr. McCarthy says the experience persuaded him that federal trials are a bad way of handling terror.

“At first, I was of the mind that a criminal prosecution would uphold all our high-falutin’ rhetoric about the constitution and majesty of the law,” says Mr. McCarthy. “But when you get down to the nitty gritty of a trial, you see one huge problem: The criminal justice system imposes limits on the government and gives the defendant all sorts of access to information, because we’d rather have the government lose than unfairly convict a man. You can’t take that position with an enemy who is at war with you and trying to bring that government down.”

By going down this line, says Mr. McCarthy, Mr. Holder has invited any number of dangers: making the Manhattan courtroom a target for terrorist attack, inviting the disclosure of sensitive intelligence, opening the possibility that some al Qaeda operative will be acquitted and released within the U.S., etc.

Worst of all, he says, is turning the laws of war upside down: Why fight the Marines and risk getting killed yourself or locked up in Bagram forever when you can blow up American citizens on their own streets and gain the legal protections that give you a chance to go free? With this one step, Mr. Holder is giving al Qaeda a ghastly incentive: to focus more of their attacks on American civilians on American home soil.

“It is foolish to think that al Qaeda does not train to our system and look for our vulnerabilities,” says Mr. McCarthy. “Remember what Khalid Sheikh Mohammed told his captors when we got him, ‘I’ll see you in New York with my lawyer.’ It seems he knows our weaknesses better than our government does.”

The former prosecutor of the 1993 WTC bombers, Andrew McCarthy, argues that the Obama administration has to know that treating KSM and other illegal combatants the same as a U.S. citizen arrested in the country’s borders and formally charged with a crime will have many adverse consequences related to national security and classified intelligence.

Pres. Barack Obama and Attorney General Eric Holder, experienced litigators, fully realize that in civilian court, the Qaeda quintet can and will demand discovery of mountains of government intelligence. They will demand disclosures about investigative tactics; the methods and sources by which intelligence has been obtained; the witnesses from the intelligence community, the military, and law enforcement who interrogated witnesses, conducted searches, secretly intercepted enemy communications, and employed other investigative techniques. They will attempt to compel testimony from officials who formulated U.S. counterterrorism strategy, in addition to U.S. and foreign intelligence officers. As civilian “defendants,” these war criminals will put Bush-era counterterrorism tactics under the brightest public spotlight in American legal history.

This is exactly what President Obama and Attorney General Eric Holder know will happen. And because it is unnecessary to have this civilian trial at all, one must conclude that this is exactly what Obama and Holder want to see happen.

During the 2008 campaign, candidate Obama and his adviser, Holder, rebuked the Bush counterterrorism policies and promised their base a “reckoning.” Since President Obama took office, Attorney General Holder has anxiously shoveled into the public domain classified information relating to those policies — with the administration always at pains to claim that its hand is being forced by court orders, even though the president has had legal grounds, which he has refrained from invoking, to decline to make those disclosures. Moreover, during a trip to Germany in April, Holder signaled his openness to turning over evidence that would assist European investigations — including one underway in Spain — that seek to charge Bush-administration officials with war crimes (which is the transnational Left’s label for actions taken in defense of the United States).

Now, we see the reckoning: Obama’s gratuitous transfer of alien war criminals from a military court, where they were on the verge of ending the proceedings, to the civilian justice system, where they will be given the same rights and privileges as the American citizens they are pledged to kill. This will give the hard Left its promised feast. Its shock troops, such as the Center for Constitutional Rights, will gather up each new disclosure and add it to the purported war-crimes case they are urging foreign courts to bring against President Bush, his subordinates, and U.S. intelligence agents.

From indictment to trial, the civilian case against the 9/11 terrorists will be a years-long seminar, enabling al-Qaeda and its jihadist allies to learn much of what we know and, more important, the methods and sources by which we come to know it. But that is not the half of it. By moving the case to civilian court, the president and his attorney general have laid the groundwork for an unprecedented surrender of our national-defense secrets directly to our most committed enemies.

The five jihadists in question are alien enemy combatants currently detained outside the United States. They are not Americans and are not entitled to the protection of our Bill of Rights. That means that in a military-commission trial, they would be given only those rights Congress chose to give them.

At Gitmo, they’ve insisted on representing themselves. In a military commission, we can allow them to do that, but we don’t have to. The commission rules provide for the appointment of military counsel and permit the combatants to retain their own lawyers. This is significant because discovery rules require that the defense be given mounds of information for trial preparation. Much of that information is top-secret intelligence. Importantly, however, we do not have to show the terrorists themselves any classified information. Only counsel who have the required security clearances, and are duty-bound not to reveal the nation’s secrets to the nation’s enemies, get access.

The rules are saliently different in the civilian justice system, where, the attorney general has promised, this case will be treated like any other criminal case. In federal court, defendants — even illegal aliens — are vested with constitutional rights that Congress may not alter or reduce.

[Wall Street Journal] Contrary to liberal myth, military tribunals aren’t a break with 200-plus years of American jurisprudence. Eight Nazis who snuck into the U.S. in June 1942 were tried by a similar court and most were hanged within two months. Before the Obama Administration stopped all proceedings earlier this year pending yesterday’s decision, the tribunals at Gitmo had earned a reputation for fairness and independence.

As it happens, Mr. [Attorney General Eric] Holder acknowledged their worth himself by announcing that the Guantanamo detainee who allegedly planned the 2000 bombing of the U.S.S. Cole off Yemen and four others would face military commission trials. (The Pentagon must now find a locale other than the multimillion-dollar, state-of-the-art facility at Gitmo for its tribunal.)

Why the difference? Mr. Holder seemed to suggest that the Cole bombers struck a military target overseas and thus are a good fit for a military trial, while KSM and comrades hit the U.S. and murdered civilians and thus deserve a U.S. civilian trial. But this entirely misunderstands that both groups are unlawful enemy combatants who are accused of war crimes, whatever their targets. Mr. Holder’s justification betrays not a legal consistency but a fundamentally political judgment that he can make as he sees fit.

Okay, one more post on the Ft. Hood shootings. I couldn’t resist after reading this analysis of the dangers of willful political correctness voiced by a counter-terrorism expert. Note he makes the same point many have previously — had Nidal been pining for, say, Nazism, he’d have been booted out of the military a long time ago.

[Inside the Ring] Patrick Poole, a counterterrorism consultant to law enforcement agencies and the military, said he expects more attacks like the one that occurred at Fort Hood because the Pentagon so far is unable to produce a “threat model” that correctly identifies the threat posed by both internal and external jihadism.

“The case of Maj. Hasan is Exhibit A on existing jihadist threats from inside the military,” Mr. Poole told Inside the Ring. “Had anyone dared to officially protest Hasan’s extremism, they would not only have been risking their military careers, but would have certainly faced a harassment lawsuit fully supported by [some Muslim] groups. … It’s not that warning signs were missed, but they were willfully ignored.”

Mr. Poole said Gen. Casey’s comments on diversity were shocking and indicate that “the Pentagon brass are doubling-down on the see-no-evil, speak-no-evil culture responsible for this incident. And more soldiers are going to die until that changes.”

Among the other incidents of Muslim extremism in the military, Mr. Poole noted the case of Ali Mohamed, an al Qaeda military chief who was an Army sergeant at the Special Warfare Center at Fort Bragg, N.C., during the late 1980s. There he gathered intelligence before defecting to help al Qaeda with its war-fighting skills. Mohamed was allowed to continue working at Fort Bragg despite warnings from both the Army and Egypt’s military that he held jihadist beliefs, Mr. Poole said.

Mr. Poole said the military has policies designed to ferret out neo-Nazis, gang members and those with psychological problems from the ranks but is unwilling to do the same with radical Muslims. “Why these existing rules could not be applied to jihadism can only be explained by the delusion that there is no problem to solve,” he said.

“If jihadist ideology is so isolated from institutional Islam as Islamic groups claim, they should have no real fear of trying to weed out the jihadists in the military, because it has nothing to do with the thousands of Muslims who are serving honorably and courageously,” he said.

What about the doctors and nurses, the counselors and physical therapists at Walter Reed Army Medical Center who every day hear and live with the pain and the suffering of returning soldiers? How many of them then picked up a gun and shot 51 innocents?

… Was anything done about this potential danger [all of the warning signs about Nidal]? Of course not. Who wants to be accused of Islamophobia and prejudice against a colleague’s religion?

– Charles Krauthammer.