Speaking in unscripted environments on important issues, Barack Obama betrays a troubling lack of knowledge. He does not appear to know what he’s talking about. In his interview with ABC’s Jake Tapper earlier this week, for example, Obama advocated an approach to combating terrorism that is supposedly more attuned to legal issues than the Bush administration’s:
It is my firm belief that we can track terrorists, we can crack down on threats against the United States. But we can do so within the constraints of our Constitution. Let’s take the example of Guantanamo. What we know is that in previous terrorist attacks, for example, the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated.
Andrew McCarthy (the lead prosecutor of the perpetrators of the 1993 WTC attack) comments:
This is a remarkably ignorant account of the American experience with jihadism. In point of fact, while the government managed to prosecute many people responsible for the 1993 WTC bombing, many also escaped prosecution because of the limits on civilian criminal prosecution. Some who contributed to the attack, like Khalid Sheikh Mohammed, continued to operate freely because they were beyond the system’s capacity to apprehend. Abdul Rahman Yasin was released prematurely because there was not sufficient evidence to hold him — he fled to Iraq, where he was harbored for a decade (and has never been apprehended).
McCarthy discusses the subsequent terrorist attacks on Americans and American assets during the Clinton administration culminating in the 9/11 attack at the outset of the Bush administration. He notes the futility of the law enforcement approach to combating terrorism. But Obama’s comments fall short on additional factual grounds as well.
The convicted spiritual mentor of the 1993 WTC bombers is Omar Abdel-Rahman (“the blind sheikh”). According to Obama, the blind sheikh was “incapacitated” and therefore rendered harmless by his conviction and imprisonment. In fact, however, with the assistance of attorney Lynne Stewart, Abdel-Rahman continued to wage jihad from behind bars, issuing instructions to his followers in Egypt. Stewart has been convicted for the assistance she lent to Abdel-Rahman, but she remains at liberty. (I wrote about my own close encounter with Stewart while she was under indictment in “Face to face with Lynne Stewart.”)
Speaking at a town hall meeting in Pennsylvania last Saturday, Obama addressed the Supreme Court’s Boumediene decision granting Guantanamo detainees the right to challenge their confinement through habeas corpus proceedings in federal court. Obama asserted that the “principle of habeas corpus, that a state can’t just hold you for any reason without charging you and without giving you any kind of due process — that?s the essence of who we are.” He explained:
I mean, you remember during the Nuremberg trials, part of what made us different was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court and that taught the entire world about who we are but also the basic principles of rule of law. Now the Supreme Court upheld that principle yesterday.
John Hinderaker and I derived some precepts for trial lawyers from the Nuremberg trial in “Lessons from the cross-examination of Hermann Goering.” In the course of researching that article I was reminded that the Nuremberg trial was conducted before a military commission composed of representatives of the United States, Great Britain, France and the Soviet Union. The most prominent surviving Nazi leaders were brought for trial before the Nuremberg tribunal in late 1945. Winston Churchill had proposed, not unreasonably, that they be summarily shot. The victorious allies nevertheless subsequently agreed that they would be brought before a military commission to be convened pursuant to the London Agreement of August 8, 1945.
In Boumediene, the Supreme Court disapproved of the system of military commissions Congress had adopted at the Supreme Court’s urging. Obama to the contrary notwithstanding, the Nuremberg defendants’ “day in court” occurred before the kind of tribunal the Supreme Court found constitutionally inadequate in Boumediene.
The Nazi war criminals were given no access to American courts. Their rights were governed by the charter annexed to the London Agreement. Here is the fair trial provision of the charter:
In order to ensure fair trial for the Defendants, the following procedure shall be followed:
(a) The Indictment shall include full particulars specifying in detail the charges against the Defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the Defendant at reasonable time before the Trial.
(b) During any preliminary examination or trial of a Defendant he will have the right to give any explanation relevant to the charges made against him.
(c) A preliminary examination of a Defendant and his Trial shall be conducted in, or translated into, a language which the Defendant understands.
(d) A Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.
(e) A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution.
The charter provision on the appeal rights of the Nuremberg defendants was even shorter and sweeter. There were no appeal rights. Article 26 provided: “The judgment of the Tribunal as to the guilt or the innocence of any Defendant shall give the reasons on which it is based, and shall be final and not subject to review.”
In short, the procedural protections afforded the Guantanamo detainees under the statute before the Supreme Court in Boumediene substantially exceed those accorded the Nuremberg defendants. Obama’s unfavorable comparison of the legal treatment of the Guantanamo detainees with that of the Nuremberg defendants suggests either that he does not know what he’s talking about, or that he feels free to take great liberties with the truth.
To comment on this post go here.