The Corner

Obama’s ‘Chain of Custody’ Foolishness

In his press conference yesterday, President Obama explained his inaction on Syria’s apparent use of chemical weapons this way: “We don’t know how they were used, when they were used, who used them; we don’t have a chain of custody that establishes what exactly happened.”

That’s a lot of fallacies in a single sentence, so let’s start with the cardinal one. The president’s question about “who used them” implies that if the Syrian regime passed chemical weapons off to its terrorist allies to use within Syria, we can’t hold the regime accountable, because we can’t really know where the terrorists got the chemical weapons. Well, let’s look at a map. Chemical weapons could not have come from Turkey, which has all its stores under solid lock and key. If there are any in Lebanon, they came from Syria or Syria’s ally Iran. Obviously they didn’t come from Israel. Jordan wouldn’t pass any off to Syria, and Iraq doesn’t have any. You can always come up with some far-fetched alternative, but it is almost inconceivable that chemical weapons used in Syria did not come from the Syrian regime.

Now, is it possible that the rebels captured a store of chemical weapons, and it is the rebels themselves who used them? Well, you would only need to look at the victims to know which side used them. If we have enough evidence to indicate a significant number of victims of a chemical weapons attack on one side, then we have enough evidence to know with reasonable confidence that it was the other side who used them. This is not CSI, as Krauthammer said. Reasonable confidence is all you can reasonably expect from intelligence assessments, and you’re usually lucky to get that much. 

The absurdity of Obama’s formulation becomes obvious – or more obvious, I should say – when you think about the context he’s drawing it from. A “chain of custody” is how the prosecution in a criminal case demonstrates that physical evidence was not tampered with during the time it was in government “custody.” A typical “chain of custody” allows a jury to understand exactly who touched the evidence at every step in the “chain,” from seizure by investigators to forensic analysis, to storage, to the courtroom.

Establishing a “chain of custody” depends on record keeping. Only the agency or agencies that had custody of the evidence can establish the “chain of custody.” The only way Obama is going to get his ”chain of custody” is if the people who have had custody of the evidence all along – Assad and his terrorist allies — turn over all the relevant records.

It is no coincidence that Obama’s formulation allows him to postpone intervention in Syria indefinitely. But that is not his only motivation. The administration’s amateurish insistence on treating terrorism as a criminal-law problem has been obvious since Attorney General Eric Holder explained back in 2009 that because the USS Cole bombers had attacked a military target, they should be tried in a military court, while the 9/11 bombers had attacked a civilian target, and should therefore be tried before a civilian court.

Hence, the adminsitration’s idiotic official policy, which continues to this day, is to reward terrorists with the privileges of a civilian trial if they attack defenseless civilians here at home instead of attacking heavily-armed military personnel abroad. Don’t be surprised if the president’s insistence on treating the Syrian regime’s anihilation of whole cities like a case for CSI leads to similarly ludicrous and shameful results. 

Mario Loyola — Contributing editor Mario Loyola is senior fellow and Director of the Center for Competitive Federalism at the Wisconsin Institute for Law and Liberty. He began his career in corporate ...

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