The Corner

Re: The Gitmo Bar & Krauthammer

Jonah, there will be more evidence, and it is shocking.

Until then, I think you are misstating my argument — as is the excellent Paul Mirengoff, who also has a very thoughtful post at Powerline. I have argued that the Islamist agenda and even the al Qaeda agenda are much broader than just terrorism. They are anti-American, anti-Western, anti-capitalist, anti-individual liberty, pro-totalitarian, pro-collectivist, etc. They hold that American interventions in the Middle East and elsewhere, especially our military interventions, are exploitations of the Muslim world aimed at robbing its natural resources and spreading Western principles that are anathema to the indigenous culture. Leftists (including leftist lawyers) can easily sign on to much of that without signing on to all of Islamist ideology. 

Along these lines, I respectfully suggest that by focusing on Islamist (and, frankly, Islam’s) hostility to homosexuals, consignment of women to second-class status, and promotion of Islam in the schools, Paul misses the big picture. Islam and the Left are not perfectly aligned, but they are substantially aligned, much more so than most people realize. And as I said in my post, the issue isn’t so much whether, in a vacuum, Leftist lawyers are pro-al Qaeda or pro-Islamist. It is where their sympathies lie as between two opponents: the United States as it is and Islamism. I disagree with John McCain on a number of issues that are of great importance to me — more issues than Paul cites as divergences between Islamists and Leftitsts. Yet, I supported McCain for president. Could you say I was pro-McCain? I suppose. But I wasn’t dealing with McCain in a vacuum; I was dealing with a choice between McCain and Obama, and on that it was no contest.

The Marxist Center for Constitutional Rights has aggressively advocated for al Qaeda for years. CCR is the backbone of the Gitmo Bar, coordinating the representation of al Qaeda detainees by the legions of volunteers from our country’s major law firms. While doing so, CCR has pushed for the indictment of Bush administration officials for war crimes and bragged that its recruitment of lawyers effectively shut down interrogations, depriving the United States of vital wartime intelligence. What more does CCR need to do to prove that, as between the United States and the Islamists, CCR is with the Islamists?  

Paul and Jonah also discuss the Gitmo Bar, and the DOJ lawyers therein, as if they were a monolith. Clearly, they are not. That’s the reason many of us have been arguing for disclosure and political accountability not for disqualification.

Take Deputy Solicitor General Neal Katyal, for example. He was the chief counsel for Qaeda operative Salim Hamdan, and ultimately convinced a sharply and ideologically divided Supreme Court to invalidate the Bush military commissions. Further, he did more than just represent Hamdan’s legal position, he advocated on his behalf — publicly portraying him as a low-ranking nobody who was excluded from al Qaeda’s high-level decision-making. In fact, Hamdan was Osama bin Laden’s personal driver and confidant who had missiles (intended for firing at U.S. forces) in his possession when he was captured.

Now to me, it was a very bad thing to volunteer for Hamdan during wartime and under circumstances where the commission rules guaranteed him competent military counsel (i.e., he didn’t need volunteer private counsel). Neal could have done a lot better things with his time and talent, so I think it’s a mark against him. But it’s not the total picture. Hamdan, after all, was accused or war crimes and therefore was entitled to counsel (most Qaeda detainees are challenging their detention and are not entitled to counsel). In representing him, Katyal was performing a necessary function (even if it wasn’t necessary that he do it). What’s more, Katyal is a serious, pro-American scholar and national security thinker who has proposed (along with Jack Goldsmith) the creation of “a comprehensive system of preventive detention” under the auspices of a national security court — an idea I’ve been harping on for six years.

Let’s contrast Jennifer Daskal, another of of DOJ’s former Gitmo lawyers. She is a left-wing extremist recruited by Attorney General Holder for DOJ’s National Security Division despite a complete lack of prosecutorial experience. What is her experience? Well, in 2006, she campaigned for the UN Human Rights Committee to condemn the United States for its waging of the “so called ‘war on terrorism,’” for what she portrayed as our serial violations of international law obligations, for our “cloak of federalism” (which she described as the means by which the U.S. defies international governance at the state and local level); for our purported infliction of torture and cruel, inhuman and degrading treatment on Muslim detainees at Gitmo and on all prisoners held in U.S. “supermax” prisons, etc.

Moreover, when al Qaeda operative Omar Khadr murdered an American soldier on the battlefield, she tirelessly championed his cause, arguing that his prosecution violated his rights as a child (he’s now 23), that our detention of him transgressed various international law obligations, and that the United States was to blame for the Omar Khadrs of the world (see the YouTube clip, here). When Khalid Sheikh Mohammed wanted to plead guilty in his military commission proceeding, she was claiming that his confession was suspect because he’d been tortured even as he couldn’t stop bragging to anyone who would listen about all the atrocities he’d committed against the U.S. and about how Islam would ultimately vanquish the U.S.

Here is where the Obama administration’s stonewalling on the Gitmo lawyers is truly infuriating. Why should Americans not know all these facts? If there was transparency, most people would find Daskal’s role at DOJ frightening. On the scale of lawyers as ideologues, she seems to be about where CCR is. On the other hand, I sleep better at night knowing Neal Katyal is at DOJ. I don’t agree with him about many things, and he’d never be Deputy Solicitor General in a conservative administration. But President Obama won the election, and he has the right to fill the slots with progressive lawyers. Katyal is a progressive lawyer who doesn’t think we should be using military commissions to try terrorists. I disagree, but so what? That’s what a the policy debate is about, and our side doesn’t hold people ineligible because we disagree with them on policy. Meantime, Katyal accepts that terrorists are a major threat to the United States and that we have to have a system for detaining them even if we can’t convict them of crimes. He’s right — and one wishes more people in the Obama Justice Department saw it that way.

Finally, if Jonah and I have a disagreement over the distinction between Islam and Islamism, it’s awfully hard to find. I didn’t make “an argument for getting rid of the labels”; I made an argument for having them. I said I’m not sure there’s any substantive difference between Islam and Islamism, but that there are hundreds of millions of Muslims who do not want to impose or live in a sharia society, and that we need to encourage those people so we need a separate designation for them. Even if we’re convinced that the root problem is their religious creed (as I am), many of them are trying to reform it, and we don’t help them by telling them their belief system is incorrigible.

Jonah says he thinks Charles Krauthammer’s distinction between Islam and Islamism is not only a practical necessity but “valid on the merits.” Respectfully, I don’t think either Dr. K or Jonah has made a case for how Islam and Islamism differ on the merits. I think they are making a deductive case that (a) because Islamists include terrorists and (b) because most Muslims are not terrorists, (c) Islam must therefore be different from Islamism. But that doesn’t tell us how the tenets of Islamism supposedly differ from those of Islam. And although one need not be a Muslim to study and understand Islam, it’s worth pointing out that while Charles and Jonah are not Muslims, many of the world’s leading Islamists are Muslims graduated with doctorates in Islamic jurisprudence from al-Azhar University, the seat of Sunni learning. I think non-Muslims who propose that the true Islam is different on the merits from the belief system espoused by scholars who have been steeped in Islam for their entire adult lives have a very steep mountain to climb. That we want Islam and Islamism to be different — and I do — does not make it so.

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