New York Terror Cell Radicalized in Prison

Where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders -- namely, highly secure prisons that ensure the public safety.

President Barack Obama, May 21, 2009

Authorities in New York have discovered that the four alleged terrorists arrested last week while planning to blow up a synagogue and shoot down a U.S. military plane were all converted to Islam while in prison. The four were attendees at a Newburgh, NY, mosque, where Imam Salahuddin Muhammad is the spiritual leader. Muhammad also serves as a Muslim prison chaplain.

The revelation comes just two days after President Obama uttered the words above, announcing his plan to bring some of the terrorist detainees currently held at Guantanamo Bay into the United States to be held in the U.S. prison system. The president assures that no one has ever escaped from one of the federal Supermax prisons. But as the case of the New York terror cell demonstrates, escape is not the only issue.

Big Speech, Small Man

It is fitting that President Barack Obama’s much-hyped and anticipated speech on his plan for the detainees currently held at Gunatanamo Bay was delivered in the rotunda of the National Archives building. Throughout his speech, the arguments of a petulant child stubbornly refusing to accept any responsibility for his actions could be heard echoing around the marble hall. The president’s speech was not courageous, uplifting, or forward looking. It was a small speech, especially in comparison to former vice president Dick Cheney’s address immediately after, and revealed the true stature of the man giving it.

President Obama is the master of the political trick of decrying a given act while engaging in it. Throughout this speech, Obama made overtures to looking ahead all the while dwelling on the past. He said he did not want to engage in re-fighting the battles of the last eight years over enhanced interrogations and Guantanamo Bay, then proceeded to do just that, explicitly and implicitly criticizing decisions of the Bush Administration as misguided, illegitimate, and “hasty.”

Of his own decisions to close the terrorist detention center at Guantanamo, the president offered no substantive defense, choosing instead to speak in platitudes and point fingers. His refusal to accept responsibility for his decision, and thus the consequences that may flow from it, was complete, and is best summarized by this passage.

“Indeed, the legal challenges that have sparked so much debate here in Washington in recent weeks would be taking place whether or not I decided to close Guantanamo. For example, the court order to release 17 Uighars – 17 Uighar detainees, took place last fall when George Bush was president. The Supreme Court that invalidated the system of prosecution at Guantanamo in 2006 was overwhelmingly appointed by Republican presidents – not wild-eyed liberals. In other words, the problem of what to do with Guantanamo detainees was not caused by my decision to close the facility; the problem exists because of the decision to open Guantanamo in the first place.“

President Obama offered no rationale for his decision other than the unprovable assertions that Guantanamo has served as a recruiting tool for terrorist groups, likely “creating more terrorists than it ever detained,” and that the facility’s existence has made the United States less, not more, safe. This is the presidential equivalent of pointing at another kid and yelling, “He made me do it!” when the teacher comes. It is not the act of a statesman, nor the argument of a man of stature. It is a dodge, a misdirection, a plea for avoiding the consequences of one’s actions.

At other points in the speech, President Obama presented half-truths and self-serving descriptions designed not to justify the closing of Guantanamo, but to cloud the issue enough in an effort to avoid responsibility for his decision. He took pains to detail the number of detainees released from Guantanamo versus the number convicted, but he did not allude to the reason for the relatively low conviction rate. Part of it certainly has to do with the efforts of “civil liberties” and “human rights” groups to tie the detentions of terrorists at the facility up in court. These are efforts that the president presumably would have supported, given his belief that the detentions were against American law. The effect is to paint a picture of a dysfunctional process for trying detainees, “a mess,” as he so eloquently called it, that only closing the facility can clean up. In truth, however, the mess is as much if not more a creation of the hysterical and unfounded claims and charges leveled against the Bush Administration’s plan for trying the detainees by some of President Obama’s biggest supporters.

In another willful distortion, President Obama insisted that the federal Supermax prisons can handle the detention of hardened terrorists, pointing out that no one has ever escaped from one of the maximum security facilities. But escape is not the issue. Security is. Bringing terrorists who were not already in America to America necessarily makes the country less safe. Housing terrorist detainees in the US makes the locality in which they are housed a terrorist target. This argument of Obama’s, which seeks to deny the reality of his decision, is like a child insisting he did not take the cookies, even as his face and hands are covered in chocolate. It is not accountable and it is not transparent.

President Obama’s address, like most of the rest of his speeches, was long on rhetorical flourish and short on actual details. It was internally contradictory – as when he said that the Bush Administration’s decision on indefinite detentions was wrong, only to announce that his own Administration would be adopting the same practice – self-serving, and petty. And that tells the listener something about the man who delivered it. President Obama showed in this address, more than he ever has, that he is a man of beautiful prose and little substance. Perhaps with more time in office, President Obama will acquire the knowledge and self-confidence that allowed Dick Cheney to deliver the statesman-like address that followed. Our president still has a lot of growing up to do.

Ignore the Court

Thursday’s Supreme Court ruling in the consolidated cases of Boumediene v. Bush and Al-Odah v. United States for the first time grants foreign-born enemy combatants of the United States, captured on the battlefield in the process of planning or participating in attacks against U.S. targets, the right to challenge the circumstances of their detention in federal court. It is difficult to overestimate the impact that this ruling will have on the prosecution of the war on terror and, indeed, all future armed conflicts. The specter of American troops Mirandizing enemy combatants on the battlefield, or being called back from the front to testify in civilian court about the manner that a prisoner was captured, and the practical impossibility each of those outcomes would present to the U.S. military, should trouble every American who is concerned about the nation’s safety.

President Bush, reacting almost immediately to the Court’s decision, said that his Administration, “would abide,” with the ruling, adding, “That doesn’t mean I have to agree with it.” He spoke too soon, and did not go far enough. For the reasons cited above, and others, he should ignore this decision of the Court, and continue to apply the Military Commissions Act of 2006 as duly passed into law by Congress.

The unpleasant fact overlooked by Justice Anthony Kennedy and the four justices who signed on to his majority opinion, is that in ruling the military tribunals set up by the Military Commissions Act to be unconstitutional, the Court itself committed an unconstitutional act. Congress, acting under its Article III power to regulate the judicial branch, stripped the Supreme Court of the jurisdiction to hear habeas corpus petitions from detainees in the custody of the United States when it passed and the president signed the Military Commissions Act. The act specifically states:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005.

The Detainee Treatment Act vests the authority to hear habeas petitions in the U.S. Circuit Court of Appeals for the District of Columbia, not the Supreme Court. The very act of taking the cases constitutes a usurpation of Congress’s Constitutional powers, as well as a violation of U.S. law, by the Supreme Court. The ruling itself, of course, is a gross attempt to regulate the conduct of the Executive Branch in wartime by the Judiciary and has no basis in the Constitution.

Not since the Civil War has a president defied a ruling of the Supreme Court, when President Abraham Lincoln ignored a ruling that his suspension of the writ of habeas corpus was unconstitutional. Lincoln continued to hold persons deemed to be enemies of the Union. Like the Supreme Court, the Executive and Legislative Branches of government have a responsibility to interpret the Constitution. Lincoln, exercising his interpretation both of the needs of the war effort and the law, concluded that preserving the Union necessitated the temporary suspension of the writ. President Bush can and should make the same determination.

Should the president make such a decision, he would not be going nearly as far as Lincoln did. The president would be refusing to apply habeas rights to foreign-born enemy combatants, whereas Lincoln jailed American citizens. The president would be on firm legal ground in making this determination. He has inherent Article II powers to direct the military as commander-in-chief of the armed forces, and he would be upholding a duly passed law against a rogue Court overstepping its authority. Furthermore, since Congress expressly authorized the D.C. Circuit to rule on the status of the detainees at Guantanamo Bay, and that court ruled that the tribunals were indeed legal, President Bush can argue that he is upholding the decision of the highest court authorized to rule on the matter.

Americans understand that the proper role of the judiciary is to interpret the laws, not make them. They also understand that in this war on terrorism, every effort must be taken to prevent those who would do America harm from realizing their plans. The president has been handed an opportunity with this wrongheaded and unconstitutional decision of the Supreme Court to act on both principles. The Administration can strike a blow against terrorists and a rogue federal judiciary by simply refusing to submit to the will of nine justices in black robes.