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Law, Legalisms and Lying about Libya



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Everything Mark says here about the audacious silence of the State Department is exactly right. I write only to add a couple of points about his apt distinction between “laws” and “legalisms.” 

First, let’s pretend for argument’s sake that the paramount consideration in Libya were the criminal investigation rather than national security and political accountability (particularly at a time when the nation is about to choose a commander in chief). Even then, it would not be true that the commencement of a criminal investigation precluded comment by the government.

As a matter of law, grand jury secrecy applies only to evidence that the government learns solely by the grand jury process — e.g., I, the prosecutor, give you, the witness, a grand jury subpoena and, under that compulsion, you show or tell me something I would not otherwise have known. To be more concrete, if an FBI agent reads a Steyn column and is then asked questions about it while testifying in the grand jury, the Steyn column is still a matter of public record; it does not become “secret grand jury material” that — presto! — government officials are not allowed to talk about anymore. Most people, especially non-lawyers, are not versed in these concepts. So, government officials frequently try to get away with telling the public that they cannot comment on matters that are under investigation. But it is not true, and experienced members of the press well know it’s not true — which is why they keep hounding Republican administrations that try this stonewall tactic. Furthermore, since a U.S. federal grand jury sitting in Washington has absolutely no power to compel testimony or other evidence in Libya, grand jury secrecy should not be much of a bar. 

Besides grand jury secrecy, there are no substantial restrictions on government commentary. Obviously, law enforcement investigators should protect their sources of information and should not reveal new evidence they learn of until they are ready to charge someone — they should restrict their comments to information already on the public record. But there is no legal restriction prohibiting government agencies — even law enforcement — from commenting about public-record information, as well as information regarding the activities and performance of “public servants” that are of obvious interest to the public.

If the State Department and the White House have gone mum, it is because they have chosen to stonewall the American people, not because anything in the law requires them to do so.  

Second, treating national security challenges as though they were mere criminal justice issues is the major counterterrorism error the government made in the nineties — i.e., back when Hillary Clinton was the First Lady promoting Arafat rather than the Secretary of State promoting the Muslim Brotherhood. One of the lessons 9/11 is supposed to have taught us is that there are many things related to our national defense that are far more important than litigation — more important, even, than “bringing to justice” terrorists we happen to capture. This lesson applies to almost all aspects of foreign relations, not just counterterrorism.

It is entirely appropriate for the public to demand answers about what happened in Libya, even if the Justice Department happens to be investigating some of these events. And the killing of our ambassador and other personnel — particularly if it was done by al Qaeda and affiliated terrorists who are enemy combatants under Congress’s post-9/11 authorization of military force — is an act of war. If we are again adopting the Clinton approach of treating a war as a crime, that, too, is something the public should be told about.

And let’s think about this for a second. President Obama has (legitimately) used military force against a pair of American citizens in Yemen — he did not have Anwar al-Awlaki and Samir Kahn arrested because he decided they should be treated like enemy combatants, not defendants. Indeed, the president used military force in Libya itself when he launched an unprovoked war against the Qaddafi regime when there were no vital American interests at stake — he decided that, too, was a military engagement not fit for law-enforcement processes. So now, after all that, you’re going to tell us that the killing of our officials by foreign terrorists with whom we are at war is a law enforcement matter that you can’t talk about? Are you serious? 

One last thing: It is highly unlikely that there will be any American criminal proceedings based on the atrocities in Libya. If you think the Islamic supremacist marauding is bad now, imagine what it would be like if what passes for the Libyan government were to sign off on sending Libyans or other non-American Muslims to be prosecuted in the U.S. Don’t expend too much energy imagining, though, because it’s never going to happen. And do you really think these war criminals are going to be “brought to justice” by the vaunted Libyan justice system?

There is no good reason for the Obama administration to go mum on Libya. During the war in Iraq, then-Senator Hillary Clinton had no compunction about challenging General David Petraeus and Ambassador Ryan Crocker on the Bush administration’s accounting of the surge, which, she inveighed, called for a “willing suspension of disbelief.” Her position was that the administration should expect to be grilled on the story it was telling the public. Her own story today appears to have a good deal less acquaintance with reality than what Petraeus and Crocker were relating. It is shameful for the press so passively to accept the administration’s ridiculous claim that it can make no comment beyond the State Department’s dubious story.    



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