As published for Post Partisan on washingtonpost.com on March 11th, 2010:

Defenders of the habeas lawyers representing al-Qaeda terrorists have invoked the iconic name of John Adams to justify their actions, claiming these lawyers are only doing the same thing Adams did when he defended British soldiers accused in the Boston Massacre. The analogy is clever, but wholly inaccurate.

For starters, Adams was a British subject at the time he took up their representation. The Declaration of Independence had not yet been signed, and there was no United States of America. The British soldiers were Adams’ fellow countrymen — not foreign enemies of the state at war with his country.

Second, the British soldiers were accused of a crime. The constitution was not yet in place, but as I pointed out in my column this week, former federal prosecutor Andy McCarthy explains that the great American tradition later enshrined in the Sixth Amendment “guarantees the accused — that means somebody who has been indicted or otherwise charged with a crime — a right to counsel. But that right only exists if you are accused, which means you are someone the government has brought into the civilian criminal justice system and lodged charges against.” Unless they have been charged before military commissions or civilian courts, the al-Qaeda terrorists held at Guantanamo do not have a right to counsel under the Sixth Amendment. They are not accused criminals. They are enemy combatants held in a war authorized by Congress.

In the 234 years since Adams and his compatriots fought for our independence, the United States has held millions of enemy combatants — and not one had ever filed a successful habeas corpus petition until the habeas campaign on behalf of Guantanamo detainees began. Thanks to this campaign, Guantanamo detainees now enjoy unprecedented rights far beyond those afforded to lawful prisoners of war with full Geneva protections. Nothing in the Geneva Conventions provides POWs with the right to counsel, access to the courts to challenge their detention, or the opportunity to be released prior to the end of hostilities. Yet thanks to the habeas campaign, al-Qaeda terrorists who violate the laws of war now enjoy all these privileges.

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As published for The Washington Post on March 9th, 2010:

Would most Americans want to know if the Justice Department had hired a bunch of mob lawyers and put them in charge of mob cases? Or a group of drug cartel lawyers and put them in charge of drug cases? Would they want their elected representatives to find out who these lawyers were, which mob bosses and drug lords they had worked for, and what roles they were now playing at the Justice Department? Of course they would — and rightly so.

Yet Attorney General Eric Holder hired former al-Qaeda lawyers to serve in the Justice Department and resisted providing Congress this basic information. In November, Republicans on the Senate Judiciary Committee sent Holder a letter requesting that he identify officials who represented terrorists or worked for organizations advocating on their behalf, the cases and projects they worked on before coming to the Justice Department, the cases and projects they’ve worked on since joining the administration, and a list of officials who have recused themselves because of prior work on behalf of terrorist detainees.

Holder stonewalled for nearly three months. Finally, two weeks ago, he admitted that nine political appointees in the Justice Department had represented or advocated for terrorist detainees, but he failed to identify seven whose names were not publicly known or to directly answer other questions the senators posed. So Keep America Safe, a group headed by Liz Cheney, posted a Web ad demanding that Holder identify the “al-Qaeda seven,” and a subsequent Fox News investigation unearthed the names. Only under this public pressure did the Justice Department confirm their identities — but Holder still refuses to disclose their roles in detention policy.

Americans have a right to this information. One lawyer in the national security division of Holder’s Justice Department, Jennifer Daskal, has written that any terrorist not charged with a crime “should be released from Guantanamo’s system of indefinite detention” even though “at least some of these men may . . . join the battlefield to fight U.S. soldiers and our allies another day.” Should a lawyer who advocates setting terrorists free, knowing they may go on to kill Americans, have any role in setting U.S. detention policy? My hunch is that most Americans would say no.

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As published for the Washington Post on March 1st, 2010:

Death panels are back. No, they are not part of the health-care legislation President Obama is proposing. But if Democratic leaders try to ram through an unpopular health-care bill along strict party lines, as they seem poised to do, they could condemn many congressional careers — and quite possibly their majority — in this year’s midterm elections. That would be bad for Democrats in Congress — but good for President Obama.

The legislation Obama is pursuing faces deep-seated public opposition. A CNN poll last week found that only 25 percent of Americans want Congress to pass a health-care bill similar to the one it has been working on for the past year, while 73 percent say Congress should either start from scratch or not pass health-care legislation at all (other polls show support for the bill in the low 40s). A Gallup poll last week found that 52 percent of Americans oppose using “reconciliation” to overcome Republican opposition and push the bill through with Democratic votes.

Bottom line: Americans don’t trust this Congress on health care, they don’t like the Democrats’ bill, and don’t agree with the partisan legislative strategy the Democrats are pursuing.

Yet in the face of this message from the heartland, congressional Democrats keep pushing their bill. It’s as if they see the writing on the wall and realize that they have just a few months left to enact their radical agenda before voters throw them out. They may be right. In a recent interview with National Journal, political analyst Charlie Cook said that the health-care bill “is one of the biggest miscalculations that we’ve seen in modern political history” and “as it became more clear that they had screwed up, [Democrats] just kept doubling down their bet.” He concludes: “it’s very hard to come up with a scenario where Democrats don’t lose the House.”

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As published for The Corner on nationalreview.com on February 22nd, 2010:

The Left is now attempting to use the Justice Department’s Office of Professional Responsibility (OPR) report to discredit the effectiveness of the CIA interrogation program. Their latest argument is that the OPR memos vindicate Ali Soufan’s claims that he got the information on Jose Padilla before EITs were employed, and they cite what appears to be a typo in the CIA’s “effectiveness” memo which states that Padilla was arrested in “May 2003.”

A-ha, says Newsweek, citing the OPR report:

“In fact, Padilla was arrested in May 2002, not 2003. . . . The information ‘[leading] to the arrest of Padilla’ could not have been obtained through the authorized use of EITs.” (The use of enhanced interrogations was not authorized until Aug. 1, 2002 and Zubaydah was not waterboarded until later that month.)

Unfortunately for the critics, the OPR memos do not vindicate Soufan in the least. Quite the opposite. On page 33 (footnote 33), the final OPR report states: “Although CIA and DOJ witnesses told us that the CIA was waiting for DOJ approval before initiating the use of the EITs, the DOJ [Inspector General’s] Report indicates that such techniques may have been used on Abu Zubaydah before the CIA received oral or written approval from OLC.”

And what does the DOJ Inspector General’s Report say? In the October 2009 Report [PDF], the other agent involved in Abu Zubaydah’s interrogation (referred to by the alias “Agent Gibson”) explains that it was the CIA — not Soufan — that got the information on Padilla, and did so after applying the first coercive techniques.

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As published for The Enterprise Blog on american.com on February 22nd, 2010:

In today’s Washington Post, I briefly cite a remarkable, but little-noticed story this weekend in the Los Angeles Times, which reports that Mullah Baradar, the “Taliban military commander captured last month in Pakistan has refused to provide information that could be used against his insurgent network, prompting the CIA to push for his transfer to an American-run prison in Afghanistan.”

Here are some of the other revelations from the Times story, which have thus far floated under the radar screen:

• “The CIA was denied direct access to Baradar for about two weeks after his arrest, and has since worked alongside Pakistani interrogators who continue to control the questioning. But officials said they have learned nothing from Baradar that could be used to track down other Taliban leaders, or inform the planning of U.S. military operations.”

• “Pakistani and CIA operatives did not know they had captured Baradar until after they began sorting through a group of suspects arrested in a raid on the outskirts of Karachi on Jan. 26. The house was targeted based on U.S. intelligence that ‘pointed to a meeting of his people,’ a U.S. official said. But there was no expectation that Baradar would be there. Only after Pakistani authorities began showing their CIA counterparts photographs of the prisoners did operatives realize they were holding the most high-ranking Taliban leader captured in the eight-year war.”

If accurate, this would mean that the Obama administration did not actually target Baradar for capture. Like Umar Farouk Abdulmutallab, the Christmas bomber, he simply fell into their laps like manna from heaven.

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As published for Post Partisan on Washingtonpost.com on February 22nd, 2010:

Rep. Mike Pence (R-Ind.) says of this week’s bipartisan health-care summit: “Sounds like the Democrats spell summit: S-E-T-U-P.” He’s right — the Blair House summit is a trap. If the objective really was to produce bipartisan compromise, Obama would not be using legislation crafted in a backroom that got virtually no Republican votes as the basis for the discussions. Nor would his secretary of health and human services have declared last week that the White House is still willing to fight for a public option, a proposal that died because of bipartisan opposition in the Senate.

The president’s real objective is to paint GOP leaders as obstructionists — so that Democrats have an excuse to ram through their health-care legislation using extraordinary parliamentary procedures. Obstructionism has been Obama’s mantra even since Massachusetts GOP Sen. Scott Brown’s election. Just last week in Denver, Obama declared that “for those who don’t believe in government, those who don’t believe that we have obligations to each other, it’s a lot easier task. If you can gum up the works, if you make things broken, if the Senate doesn’t get anything done, well, that’s consistent with their philosophy.” This is dishonest. Republicans have a robust health-care agenda, from health savings accounts, to association health plans, insurance portability, and medical liability reform.

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As published for the USA Today on February 18th, 2010:

Baradar is a potential treasure trove of intelligence on the Taliban and al-Qaeda. After months of criticism of President Obama’s handling of terrorist detainees, and a nearly successful attack on the homeland, he seems to have rediscovered the virtue of capturing and interrogating terrorists, instead of killing them or reading them their Miranda rights. But problems with his approach to terrorist interrogation remain.

In his first year in office, Obama dramatically escalated the targeted killing of senior terrorist leaders, while eliminating the CIA’s program to detain and question high-value terrorists for intelligence on planned attacks. Under that program, about 100 high-value terrorists were taken into CIA custody, and their questioning helped the United States stop a series of terrorist plots. While news of Baradar’s capture leaked within days, under the CIA program captured terrorists were often held in secret for months before al-Qaeda realized they were being interrogated. This approach allowed us to capture still other terrorists who did not know they were in our sights.

But according to The Washington Post, there have been “no reports of high-value detentions” in the past year. Baradar’s capture does not change this reality. He is not in American custody. He is being held and interrogated by Pakistan’s intelligence services. In another time, he might have been secretly transferred to CIA custody for questioning. But under Obama, we no longer have this capability.

Echoes of al-Qaeda arrests

Baradar’s handling appears to echo that of two senior al-Qaeda terrorists who were captured in the early days of the Obama administration. In January 2009, Pakistani commandos, acting on intelligence from the CIA, seized a Saudi al-Qaeda operative named Zabi al-Taifi. A U.S. counterterrorism official told the Associated Press that Taifi “was among the top two dozen al-Qaeda leaders” and “was deeply involved in internal and external operations plotting.” A month later, the CIA and the Pakistani commandos in Quetta captured an al-Qaeda terrorist named Abu Sufyan al-Yemeni. According to The New York Times, he was “on CIA and Pakistani lists of the top 20 al-Qaeda operatives” and “helped arrange travel and training for al-Qaeda operatives from various parts of the Muslim world to the Pakistani tribal areas.”

Like Baradar, Taifi and Yemeni possessed valuable intelligence. But instead of sending them to the CIA or Guantanamo, they were sent to Islamabad, interrogated briefly by Pakistan’s Inter-Services Intelligence agency, and then repatriated to their home countries, Saudi Arabia and Yemen.

Where are these men now? In the wake of the recent attempt by al-Qaeda in the Arabian Peninsula to blow up an airplane over Detroit, it would be enlightening to learn what happened to these two senior al-Qaeda terrorists.

Are they in prison? Have they been released? Have they returned to the fight? Was either involved in the Detroit attack? Perhaps the most transparent administration in history would like to explain their fates.

The handling of these terrorists makes a mockery of Obama’s moral preening oninterrogation. The president says he has “banned torture.” On his second day in office, he issued an executive order mandating that “an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States … shall not be subjected to any interrogation technique or approach … that is not authorized by and listed in the Army Field Manual.”

Handing off to Pakistan

Yet in the cases of Taifi and Yemeni — and now Baradar — Obama has allowed Pakistan to interrogate these terrorists in our place. They are not under the control of U.S. officials, or detained within a U.S. government facility. While U.S. officials must do everything they can to ensure their humane treatment, the Pakistanis are not required to follow the Army Field Manual or interrogate these terrorists according to the new standards mandated by the Obama administration. And, as The New York Times put it, “the Pakistanis have long been known to subject prisoners to brutal questioning.”

Allowing foreign intelligence services to question terrorists is a loophole in President Obama’s new, morally superior interrogation policy — one that allows tough interrogations to proceed without staining Obama’s reputation. Such loopholes expose the hypocrisy of Obama’s approach to interrogation. He claims the moral high ground, when all he is actually doing is outsourcing the tough cases.

The problem is that when interrogations are outsourced, America is dependent on the competence and effectiveness of the foreign intelligence service that is interrogating the terrorist — which is almost certainly less competent and effective than our own interrogators would be. If the terrorists refuse to cooperate, we have no options to compel their cooperation. And the Pakistanis do not need our permission to release or repatriate them.

Hopefully, Baradar’s interrogation will produce useful intelligence. The fact that he is alive and in questioning is progress. But that does not excuse the fact that America today still has no program to hold and effectively interrogate high-value terrorists ourselves.

Marc A. Thiessen is the author of thebest-seller Courting Disaster: How the CIA Kept America Safe and How Barack Obama Is Inviting the Next Attack.

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