“To Osama with love from Barry”

Here comes yet another huge controversy with which to divert the American electorate. If you’ll remember back to the first days after Mr. Obama’s election, his chief adviser famously said that the first rule was “never allow a crisis to go to waste”.

At the time, that bit of pith from Rahm Emanuel attracted quite a bit of air play and analysis. However, as we’ve had the opportunity to watch how this administration operates, one begins to realize that Emanuel…umm, misspoke himself; he was telling us the second rule. The real first rule is to create the crisis to suit whatever situation one needs covered.

That, I think, is part of the reason that the President suddenly announced that the terrorist trial was being taken out of military jurisdiction and being moved to Federal Court in New York City.

Following their standard operating procedure, this bombshell of a crisis was dropped on a Friday afternoon, a period when the news folks are winding down in anticipation of the weekend. Another part of this now-familiar S.O.P. is to break the news when the President is on the way somewhere else. This move protects him from immediate close questioning by the domestic press, and it gives enough time for the initial shock to pass thus allowing for the short attention span of the electorate to move on to something else.

When the history books about this administration come to be written, these techniques will be much-discussed.

For the moment, though, press and people are expressing the usual gamut of opinion from (reading left to right) “great move. Justice was done” to “this moral outrage will not stand”. Take your pick.

Mayor Giuliani certainly knows where he stands on this. Given what he endured on September 11th 2001, the former mayor has special standing to say his piece:


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Obama, obviously, doesn’t share the former Mayor’s opinion. Here is a short video of parts of his speech on the floor of the Senate in 2006, when the proposed legislation regarding the Military Commissions Act was being debated. From the clip, it would appear that Senator Obama is in agreement with this bill:

However, he voted against it, as did Senator Biden, so I’m not sure if we’re missing something here. There is an ironic tone in the Senator’s voice during his speech. Was this meant to be his mocking of the proposed bill?

Here’s a timeline on the legislation as it progressed from the Senate to the House to the Executive:

Passed Senate Sep 28, 2006
Passed House Sep 29, 2006
Signed by President Oct 17, 2006
This bill became law. It was signed by George Bush.
Last Action: Oct 17, 2006: Became Public Law No: 109-366

You can read a summary of The Military Commissions Act of 2006 here.

Full text of Public Law No. 10936

This link will give you the full text of Public Law No. 10936.

I’m not a lawyer. I can’t tell what this law allows or prevents a president from doing when it comes to moving a prisoner of war from military to civilian jurisdiction. Lawyers who tried the first terrorists from the 1993 bombing of the Twin Towers in the Federal courts think this is a lousy idea. But since they haven’t said whether or not it’s unconstitutional, I am presuming that this President has not violated his oath of office. That oath,

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.

is found in Article Two of the U.S. Constitution.

Whatever its legal standing, I’m with Mr. Yoo. This is a terrible idea:

Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown. It will enable it to detect our means of intelligence-gathering, and to push forward into areas we know nothing about.

This is not hypothetical, as former federal prosecutor Andrew McCarthy has explained. During the 1993 World Trade Center bombing trial of Sheikh Omar Abdel Rahman (aka the “blind Sheikh”), standard criminal trial rules required the government to turn over to the defendants a list of 200 possible co-conspirators.

In essence, this list was a sketch of American intelligence on al Qaeda. According to Mr. McCarthy, who tried the case, it was delivered to bin Laden in Sudan on a silver platter within days of its production as a court exhibit.

Bin Laden, who was on the list, could immediately see who was compromised. He also could start figuring out how American intelligence had learned its information and anticipate what our future moves were likely to be.

Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights? Will they have to secure the “crime scene” under battlefield conditions? Will they have to take statements from nearby “witnesses”? Will they have to gather evidence and secure its chain of custody for transport all the way back to New York? All of this while intelligence officers and soldiers operate in a war zone, trying to stay alive, and working to complete their mission and get out without casualties.

The Obama administration has rejected the tool designed to solve this tension between civilian trials and the demands of intelligence and military operations. In 2001, President George W. Bush established military commissions, which have a long history that includes World War II, the Civil War and the Revolutionary War. The lawyers in the Bush administration-I was one-understood that military commissions could guarantee a fair trial while protecting national security secrets from excessive exposure.

The Supreme Court has upheld the use of commissions for war crimes. The procedures for these commissions received the approval of Congress in 2006 and 2009.

Stranger yet, the Obama administration declared last week that it would use these military commissions to try five other al Qaeda operatives held at Guantanamo Bay, including Abu Rahim al-Nashiri, the alleged planner of the 2000 bombing of the USS Cole in Yemen. It should make no difference that this second group attacked a military target overseas. If anything, the deliberate attack on purely civilian targets in New York City represents the greater war crime.

For a preview of the KSM trial, look at what happened in the case of Zacarias Moussaoui, the so-called 20th hijacker who was arrested in the U.S. just before 9/11. His trial never made it to a jury. Moussaoui’s lawyers tied the court up in knots.

All they had to do was demand that the government hand over all its intelligence on him. The case became a four-year circus, giving Moussaoui a platform to air his anti-American tirades. The only reason the trial ended was because, at the last minute, Moussaoui decided to plead guilty. That plea relieved the government of the choice between allowing a fishing expedition into its intelligence files or dismissing the charges.

KSM’s lawyers will not save the government from itself. Instead they will press hard to reveal intelligence secrets in open court. Our intelligence agents and soldiers will be the ones to suffer.

This decision of Obama’s doesn’t make sense unless you look at his record. In this case, we have his vote in 2006. He was against the Military Commission then and despite what he said a few weeks ago, his vote as a Senator tells the real tale:

To Osama with love from Barry.


Hat Tip: Family Matters