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Disqualifying Remarks
A President Dean would let a jury fight the war on terror.


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Andrew C. McCarthy

One wonders aloud whether there are any adults left minding the Democratic store. Regardless of how commanding a lead he has amassed, no matter the daunting war chest, and overlooking the skill with which he strums the anger chord of a loony Left that mulishly fiddles over Florida 2000 while the rest of us fight for our lives, Howard Dean’s mistletoe buss for Osama bin Laden would, in sane times, disqualify him from serious contention for a major party’s presidential nomination. If what he says is what he thinks, he is unfit. Case closed.

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DEAN: JUDGE DREAD

Asked what should befall the ringleader of the vast terror network our country has been in active combat against for over two years, Dr. Dean astoundingly replied that he would have to refrain from making such a pronouncement until a jury rendered its verdict at the end of a criminal trial. Capping this imbecility with his now-familiar knee-jerk smugness, Dean declaimed that those in “positions of executive power” should not “prejudge jury trials.”

Even at their most superficial level, Dean’s remarks illustrate a mind-bending naiveté about the president’s central role in federal law enforcement. Our Constitution commits the prosecution of criminals to the executive. United States attorneys in each federal district are appointees of the president; it is solely under presidential authority that they bring cases. The presumption of innocence–widely overused as a rhetorical lifeline for the arrantly guilty–is indeed deeply rooted in Anglo-American common law. But it is germane only as an evidentiary presumption, a vehicle for assigning the burden of proof at a criminal trial to the government rather than the accused. Yes, it solemnly binds the jury, but it has little if any relevance outside the trial context. For example, those accused of violent crimes are routinely held in jail prior to trial, often for well over a year. Even though they’ve not yet been convicted of anything, the presumption of innocence avails them nothing in bail proceedings.

The presumption posturing by Dean is especially unbecoming as applied to executive-branch officials. Federal prosecutors, once they have evaluated evidence and decided to bring charges, actually presume a defendant is guilty. Were they not to believe both that the accused is actually guilty and that the existing proof is sufficient to warrant conviction by a rational jury, it would be unethical for them to proceed to trial. An officer of the executive branch who seeks and obtains an indictment has already prejudged the jury trial. And bin Laden, we might remind Dr. Dean, was already under formal indictment three years before the September 11 attacks that he both orchestrated and very publicly took credit for.

Yet all of that, while it speaks volumes about the Democrats’ front-runner, is almost beside the point. On the far weightier score of national security, Dean’s comments are downright dangerous–for the encouragement they provide bin Laden and his murderous acolytes, for the dispiriting impact they necessarily have on our troops in combat theatres, and most alarmingly for what they portend about a President Dean’s strategy for addressing the most pressing issue of our age: the protection of the United States and our allies from the forces of barbarity.

NOT EXACTLY LAW & ORDER

September 11 marked a long-overdue sea change in America’s approach to terrorism. In the decade leading up to the attacks, we learned that the United States was under forcible assault, from within and without, by highly capable, highly motivated jihadists. Rather than react with vigorous force to protect the homeland, the government’s response was to swaddle terrorists in the rights of American criminal defendants and prosecute them in judicial proceedings.

In long hindsight, the war Islamic militants began to wage in the early 1990’s can now be seen as a sustained campaign. Naturally, however, it did not emerge in the first instance as a complete, revealed whole. Recognizing that, one must responsibly avoid maligning President Clinton for his initial responses. The 1993 World Trade Center bombing, though best understood now as a declaration of war, appeared at the time as a crime–shocking, and among the most heinous ever committed on American soil–but still a crime, not a war. The perpetrating jihad organization certainly had significant overseas connections, particularly to Egypt, Afghanistan, and the Sudan. But circa 1993, indications were that the cabal was largely contained here. Indeed, its members had been conducting paramilitary training on Long Island and in remote Connecticut since 1988.

And since the WTC bombing appeared to be a crime, it underwent, from the start, a primarily criminal investigation. The state of proof was woefully inadequate to justify retaliatory military action, and no responsible person would have urged such a course on President Clinton. Instead, law-enforcement agencies (primarily, the FBI and the New York City Police Department) probed the bombing and quickly rounded up most–but not all–of the perpetrators, who were charged within a matter of days. It was handled the way such bombings (by FALN terrorists, the Weather Underground, etc.) had always been handled: by criminal prosecution. President Bush, to be sure, would not have done otherwise.

Where President Clinton cannot be excused is in the failure to alter his approach as the years went by, the evidence and the innocent dead mounted, and it became increasingly patent that we were the target of a committed military enemy. Though a sub-national entity, al Qaeda had a multinational support system (in Afghanistan, Pakistan, Egypt, Sudan, Iraq, Iran, Yemen, Somalia, and Saudi Arabia, to name just the most blatant) and operated as a fully competent international military force.

In 1998, when it was already apparent that there were many thousands of terrorists beyond the mere 30 or so we had by then managed to prosecute, bin Laden openly and notoriously declared war on the United States. By then, our government well knew that bin Laden and other prominent jihadists had for years been instructing their militias to concentrate on unambiguously American targets, particularly U.S. military and political installations, lest anyone doubt that this was a real war and that a nation–our nation–was its principal target. In 1993, for example, just two months after the WTC bombing, Sheik Omar Abdel Rahman, the militants’ leader in New York, chided his underlings that, although a planned bombing of the U.N.’s Manhattan complex was permissible, they should consider instead a direct strike against the American army. Three years later, the blind sheik’s overseas confederate, bin Laden, issued his “Declaration of Jihad Against the Americans Occupying the Land of the Two Holy Mosques [i.e., Saudi Arabia],” calling on militant groups to pool resources to better accomplish a single goal: killing Americans.

Finally, there came bin Laden’s more infamous February 1998 fatwa, issued on behalf of al Qaeda and its affiliated groups. Simply, blatantly, the firebrand urged Muslims to kill Americans, including civilians, anywhere in the world where they could be found. Coming on the heels of the winter 1993 WTC bombing, a spring 1993 plot to execute simultaneous attacks on New York City landmarks (the U.N., the FBI’s Manhattan headquarters, and the Lincoln and Holland Tunnels); the 1994-95 conspiracy to blow up American airliners in flight; the solid information that bin Laden had established strategic ties with Hezbollah (author of the October 1983 attack on the barracks in Lebanon that killed 241 American Marines) and Iraq; and the intelligence that bin Laden was aggressively pursuing nuclear, chemical, and biological weapons of mass destruction; this declaration of war should have been taken no less seriously, and met no less robustly, than one from a sovereign enemy.

It was not. Less than six months later, al Qaeda simultaneously bombed the U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, killing well over 200 people. Indicting bin Laden (again) at that point was about as useful as would have been indicting the Emperor Hirohito the day after Pearl Harbor. Bin Laden was not a simple criminal. The emir of a vast terror network, he had declared war on us and then incontestably proved his seriousness by directing military strikes that destroyed our sovereign headquarters in two countries. This did not call for adding a couple of counts to a legal charging instrument. It called for commencing the war on terror.

President Clinton’s lame rejoinder was a single day of ineffectual cruise-missile strikes–informing al Qaeda in a way mere words never could that he did not have the stomach to rally the nation and embark on a sustained, committed military campaign to destroy those who would indiscriminately slaughter Americans. Emboldened and enabled by weakness, as terrorists always are, bin Laden followed with a direct attack on our military in Yemen (i.e., the bombing of the U.S.S. Cole, killing 17), and, of course, the September 11 attacks, killing over 3,000.

At last, 9/11 triggered the upheaval. Finally, the U.S. government engaged the war. This is no small matter: A president must perceive the difference between a warring belligerent and a street gang, for it is entrenched constitutional doctrine that the commander-in-chief has not merely the authority but the obligation to react swiftly and forcibly when our nation is under attack. Here, moreover, Congress too sprang to action, enacting within a week a sweeping resolution authorizing President Bush to launch aggressive, military retaliation.

Now, our government is not apprehending al Qaeda terrorists so as to engage them in wearisome extradition proceedings as a prelude to paying for their legal-aid lawyers, or opening our most sensitive intelligence files in pre-trial discovery proceedings, or bathing them in the majesty of American criminal justice. Bluntly, we are killing them, by the thousand–just as we killed Nazis; just as we’ve killed every military enemy to take up arms against America throughout our history. We are killing al Qaeda warriors and we are taking American casualties. This is no legal battle fought by lawyers; it’s a real, military battle, fought by the best and bravest we have to offer.

Bin Laden has already been judged. He has exhorted jihadists to mass murder and brazenly claimed credit for it when it has happened, again and again. He has been the animating force behind self-proclaimed mujahadeen whose “due process”, quite appropriately, has lately been the receiving end of smoldering American military might. Bin Laden has been the worst, and the deadliest, of them all. Assuming we have not already annihilated him, Americans (other than, evidently, Dr. Dean) know and expect that his fate, should he emerge from the catacombs, is death, either in battle or by execution at the conclusion of the most summary of military tribunals–the just dessert of unlawful combatants who commit crimes against humanity.

Are the Democrats so deeply in the thrall of a fringe that they would nominate, to be president and the face of their party, a person who does not get that? Are they telling Americans that their return to power will mark the end of–and a surrender in–the war on terror? Are they advertising a return to the proven national-suicide approach of cherry-picking a handful of the thousands of terrorists committed to our destruction, bringing these non-Americans whose only connection to our country is to make war on it to the United States, granting them the benefits enumerated in our Bill of Rights, providing them lavish discovery that will be used by their confederates to decipher our intelligence methods and sources, and rolling the dice with jury trials that take years to begin and go on for months after that?

A COMEDY OF ERRORS

This is not abstraction. It’s reality. Here, if you doubt, is a recap of the four most prominent terrorism cases to proceed in the civil-court system in recent years: First, in 2001, a federal judge in Manhattan initially suppressed the embassy bombing confession of al Qaeda terrorist Mohamed Daoud al-Owhali (directly responsible for over 200 murders) upon reasoning that American agents had not given him technically proper Miranda warnings. In fact, al-Owhali was not in the custody of the Americans but of the government of Kenya, which does not provide for counsel at public expense during custodial interrogation. Had the U.S. agents advised al-Owhali that he had the full run of Miranda rights, they’d have been lying to him. Eventually, the judge eventually reversed himself, but only after issuing an opinion holding that foreign terrorists held overseas by foreign sovereigns enjoy many American constitutional rights. The jury, rendering a verdict fully three years after the bombings, ultimately convicted the terrorists but declined to impose the death penalty. The case is still on appeal.

Next, just this past September, a federal judge in Manhattan gave al Qaeda leader Mamdou Salim–who was in jail awaiting trial for the embassy bombings–a sentence of only 17 years in prison, rather than life, upon concluding that an assault in which Salim plunged several inches of a shiv through the eye and into the brain of a prison guard was somehow not related to terrorism. That ruling is under review. Meantime, Salim has not been tried for the now five-year-old embassy attacks.

Third, the trial of Zacarias Moussaoui for involvement in the September 11 attacks continues to be stalled in Virginia, and the death penalty has been ruled out of the case, because a federal judge has ruled that the government is not providing enough discovery to Moussaoui–including access to captured al Qaeda cohorts overseas who might theoretically assist his defense. That ruling, too, is being reviewed. Who knows if and when the trial will occur.

Fourth and finally, attorney Lynne Stewart and three others still, after two years, await trial for helping the blind sheik run his al Qaeda-connected terror organization–Egyptian Gama’at al Islamiyah–from jail. Such charges are possible because terrorists imprisoned in the U.S., even after criminal convictions in our justice system, continue to have rights and privileges that make it possible for them to plot and oversee terrorist operations. (Just as Sayyid Nosair, who committed the notorious murder of Meir Kahane in 1990, used Attica Prison in New York as a headquarters to meet and plan with the 1993 WTC bombers.)

These cases, of course, are a trifle compared to the years-long, three-ring circus that would be a trial of Osama bin Laden. This where Howard Dean would take America: unable to respond until a jury decides, probably sometime around 2010, if ever. Are the Democrats as a whole really willing to walk over that cliff with him? There are sensible, patriotic Democrats who have supported the global war on terror, even as they have carped about military operations in Iraq. At what point do they face down the fringe? At what point do they say: If our presumptive nominee can’t even say Osama bin Laden is guilty, it’s time to go back to the drawing board?

Andrew C. McCarthy, a former federal prosecutor who led the 1995 terrorism case against Sheik Omar Abdel Rahman, is a consultant at the Investigative Project in Washington.



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