May 1, 2009
By email (to the Counterterrorism Division) and by regular mail:
The Honorable Eric H. Holder, Jr.
Attorney General of the United States
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001Dear Attorney General Holder:
This letter is respectfully submitted to inform you that I must decline the invitation to participate in the May 4 roundtable meeting the President’s Task Force on Detention Policy is convening with current and former prosecutors involved in international terrorism cases. An invitation was extended to me by trial lawyers from the Counterterrorism Section, who are members of the Task Force, which you are leading.
The invitation email (of April 14) indicates that the meeting is part of an ongoing effort to identify lawful policies on the detention and disposition of alien enemy combatants—or what the Department now calls “individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.” I admire the lawyers of the Counterterrorism Division, and I do not question their good faith. Nevertheless, it is quite clear—most recently, from your provocative remarks on Wednesday in Germany—that the Obama administration has already settled on a policy of releasing trained jihadists (including releasing some of them into the United States). Whatever the good intentions of the organizers, the meeting will obviously be used by the administration to claim that its policy was arrived at in consultation with current and former government officials experienced in terrorism cases and national security issues. I deeply disagree with this policy, which I believe is a violation of federal law and a betrayal of the president’s first obligation to protect the American people. Under the circumstances, I think the better course is to register my dissent, rather than be used as a prop.
Moreover, in light of public statements by both you and the President, it is dismayingly clear that, under your leadership, the Justice Department takes the position that a lawyer who in good faith offers legal advice to government policy makers—like the government lawyers who offered good faith advice on interrogation policy—may be subject to investigation and prosecution for the content of that advice, in addition to empty but professionally damaging accusations of ethical misconduct. Given that stance, any prudent lawyer would have to hesitate before offering advice to the government.
Beyond that, as elucidated in my writing (including my proposal for a new national security court, which I understand the Task Force has perused), I believe alien enemy combatants should be detained at Guantanamo Bay (or a facility like it) until the conclusion of hostilities. This national defense measure is deeply rooted in the venerable laws of war and was reaffirmed by the Supreme Court in the 2004 Hamdi case. Yet, as recently as Wednesday, you asserted that, in your considered judgment, such notions violate America’s “commitment to the rule of law.” Indeed, you elaborated, “Nothing symbolizes our [adminstration’s] new course more than our decision to close the prison at Guantanamo Bay…. President Obama believes, and I strongly agree, that Guantanamo has come to represent a time and an approach that we want to put behind us: a disregard for our centuries-long respect for the rule of law[.]” (Emphasis added.)
Given your policy of conducting ruinous criminal and ethics investigations of lawyers over the advice they offer the government, and your specific position that the wartime detention I would endorse is tantamount to a violation of law, it makes little sense for me to attend the Task Force meeting. After all, my choice would be to remain silent or risk jeopardizing myself.
For what it may be worth, I will say this much. For eight years, we have had a robust debate in the United States about how to handle alien terrorists captured during a defensive war authorized by Congress after nearly 3000 of our fellow Americans were annihilated. Essentially, there have been two camps. One calls for prosecution in the civilian criminal justice system, the strategy used throughout the 1990s. The other calls for a military justice approach of combatant detention and war-crimes prosecutions by military commission. Because each theory has its downsides, many commentators, myself included, have proposed a third way: a hybrid system, designed for the realities of modern international terrorism—a new system that would address the needs to protect our classified defense secrets and to assure Americans, as well as our allies, that we are detaining the right people. ...
Mr McCarthy is no stranger to Americans who have been paying attention. Here, finally, is an American who refuses to silently 'go along' with this President's non-policies of 'hope and change'. Here, finally, is an American who dares to spotlight the outright dangerous stupidity of what Obama proposes. Here, finally is an American who understands what needs to be done to keep America safe in a time of war. And yes, as he reminds us (well, those of us who need reminding) we ARE in a war.
Mr McCarthy's email shines with integrity, honour and DUTY of a citizen who loves America. A patriot who will not be silent. It is long, and oh so logical and articulate. And yes, absolutely brave as he lays out the implications of the course of action (or inaction) Obama seems hell-bent on taking. Mr McCarthy has credibility, has earned the t shirt in terms of appropriate response to terrorists who wish harm to his country. The same cannot be said of Obama. Mr McCarthy clearly understands that - especially in a time of war - duty of citizenship trumps flowery, empty platitudes.
In this one email, Mr McCarthy speaks truth in clear prose that is a damning indictment of everything Obama has done/is proposing to do. If you do nothing else today, read the rest of his email. Go here.
After draft posting this, I found another piece by Mr McCarthy talking about why he felt prompted to reply in the way he did. Over at Do The Right Thing is this:
Friday, May 1, 2009
Saying No to Justice
Why I declined to meet with the President’s Detention Policy Task Force.
By Andrew C. McCarthy
At the start of his term, President Obama directed Attorney General Eric Holder to head up the President’s Detention Policy Task Force to study detention, trial, and other issues relating to alien enemy combatants — though that venerable law-of-war term has been purged in favor of “individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.” The attorney general has assigned lawyers in the department’s Counterterrorism Division to organize the effort. Those lawyers invited me, among other former and current prosecutors experienced in terrorism and national-security matters, to attend a roundtable session next week, to sort through the vexing legal challenges of modern international terrorism.
I’ve declined the invitation. It pained me to do it. I’ve always believed enforcing our laws and defending our nation are duties of citizenship, not ideology. My conservative political views aside, I regularly make myself available to liberal and conservative groups, to Democrats and Republicans, if they think tapping my national-security or law-enforcement experience would be beneficial.
This time, though, I had to say no. As I explain to Attorney General Holder in a letter, which was posted this morning on the website of the National Review Institute, I declined for two reasons.
First, President Obama and Attorney General Holder have created an untenable situation for lawyers asked to advise the government on policy matters.
Former Justice Department attorneys John Yoo (now a law professor at Berkeley) and Jay Bybee (now a federal appeals-court judge in California), as well as other government attorneys, were asked during the emergency conditions that followed the 9/11 attacks to advise Bush administration policymakers on U.S. interrogation law. They did that in good faith and, despite the fact that it’s now de rigueur to castigate them, quite reasonably (as I’ve argued in an online Federalist Society debate, see here). For their service to our country, they are now being tormented by the Obama administration with both a criminal investigation and an ethics inquiry by Justice’s Office of Professional Responsibility. (There have even been calls on the left for Judge Bybee’s impeachment, which — even if he had done something wrong years earlier as a Justice Department lawyer — would be absurd: The Constitution reserves judicial impeachment for misconduct committed during the judge’s tenure on the bench, and Bybee is an excellent judge.)
A little over a week ago, the Obama administration recklessly revealed publicly (i.e., to al-Qaeda) the details of enhanced interrogation tactics used by the CIA against top-tier terrorists. The decision to employ these tactics was not made by Yoo, Bybee, or other government lawyers. ...( Go read the rest here.)
Then, decide who YOU stand with, and for. Thank you, Mr McCarthy!
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