"You Have The Right To Remain Silent. Anything You Say..."

To enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans. Mission Statement, Department of Justice website.

On November 13th, a Friday when President Obama was touring Asia, Attorney General Eric Holder announced that he was bringing "alleged" 9/11 mastermind Khalid Sheikh Mohammed and four other from Guantanamo Bay detention facilities to New York City to face trial in American civil courts for their roles in the September 11, 2001 attacks on New York City and Washington D.C. While I am not pleased with this decision, the decision itself pales in comparison to the statements and comments made subsequent to the announcement by the Attorney General. Reflecting on the mission statement above here are comments made by Holder to members of the media and on Capitol Hill.

On the News Hour with Jim Lehrer the day of the announcement the following exchanges:

After answering that in making the decision he, Holder, consulted with people at the Department of Justice and Department of Defense, and others, Holder was asked by Lehrer:

JIM LEHRER: Did you run it by President Obama?
ERIC HOLDER: Just informed him of the decision.

Holder goes on to explain that the President "believes the President should have hands off the Justice Department....in those things that are in the province of the Attorney General all he needs is to be informed."

Really. The President of the United States, Chief Executive of the United States Government, believes that the Attorney General can operate independently of the White House and counsel from the President? Is this in all cases or just ones that are extremely controversial politically? Is this to protect the Attorney General or the President? Later in the interview Holder says he spoke to his wife and his brother about the decision (his brother is retired from the Port Authority of New York). On the one hand you have your boss, who happens to be President of the United States and an attorney who, as we were reminded throughout 2008, is also a Constitutional Law professor, on the other you have your boss and big brother. One is given a phone call aboard Air Force One and being told what is going to happen, the other two have discussions about the impact of such a decision.

Further in the interview:

JIM LEHRER: Well, Mohammed was water-boarded, was he not?
ERIC HOLDER: He was.

On March 2, 2009 in a speech before the Jewish Council for Public Affairs Plenum Holder said, "As I unequivocally stated in my confirmation hearing before the U.S. Senate, waterboarding is torture." So the Attorney General states publicly he believes waterboarding is torture, admits KSM was tortured and now is going to prosecute him using statements that were revealed while being, in Holder's opinion, tortured. I know several attorney read this blog, help me with how this plays before a judge following our Constitution.

Further in that March 2009 speech, Holder also speaks of Obama's Executive Orders establishing inter-agency task forces to deal with the Guantanamo detainees and their prosecution or release. To follow, Obama establishes task forces and then allows the head of Justice to make unilateral decisions within the Executive Orders of the White House.

There are many sides to this upcoming trial. Among them are when were KSM and friends read their Miranda Rights, you know them, personally they were drilled into me as a child watching Kojak, Baretta, Adam-12, S.W.A.T. and other cop shows. We know that many a criminal has been kicked loose from prosecution because when apprehended and questioned he was not read his rights, or "Mirandized." Because KSM and the gang were picked up in a war by soldiers they were never Mirandized, so have they been now? Does evidence obtained before 2009 get to be entered in the court?

What happens if they are kicked loose because of our legal system and protecting the rights of the accused and the presumption of innocence? What of our President's declaration on Fox that he is confident the trial in New York would end in convictions and the execution of Mohammed and his co-defendants? Does that somehow inhibit the ability of the defendants to receive a "fair trial?" If Obama was merely informed of the decision to bring the Guantanamo 5 to New York for trial, and he was travelling around Asia when the announcement was made, how can he be confident in their prosecution and subsequent execution?

What has really pushed me on this issue however is the statements made by Attorney General Holder in Congress last week before the Judiciary Committee in questioning from Senator Lindsey Graham (video here of exchange). The head of our our Justice Department, the person who is supposed to ensure all work at the Department of Justice adheres to the mission statement above, when asked what happens if the most wanted man in the world, Osama bin Laden, is captured on a battlefield tomorrow. What is the captain, major, general who captures him supposed to do and when is going to be read his rights?

"That all depends."

So the head of Justice has no idea what happens if the person most wanted by the Justice Department, and everyone else, is captured? Shouldn't there be a policy and procedure manual "What to do when we capture Osama bin Laden?"

I am unsure if Eric Holder is competent is fulfilling his position of Attorney General and is bending backwards and sideways to protect his boss, Barack Obama; or if Eric Holder is incompetent and unable to understand the chain of command and operates without consulting the Administration and Obama. Either he exemplifies an Administration in over its head in running a country, or he exemplifies an incompetence within the Administration to effectively appoint and manage Department Secretaries and others.

Either way I am not feeling too confident about the ability of this Justice Department to effectively prosecute, and execute, the Guantanamo 5 and other terrorists captured by United States Military forces.

Remember the mission, "...to ensure fair and impartial administration of justice for all Americans."

(Un)Enhanced Interrogation

It is 2012 and somewhere in the desolate region between Afghanistan and Pakistan members of an elite Marine fighting unit have captured the number 2 in al-Qaeda, Ayman al-Zawahiri (AAZ). He has been turned over to interrogators at a local military installation that consists of several tents and vehicles with not much else.

al-Zawahiri is sitting in a crude chair in the middle of a tent which billows in the hot wind. He has a hood over his head, shackles on his legs and around his waist to which his hands are bound with cuffs behind his back. In front of him is a table with a pitcher of water, it had ice but it has quickly melted in the Afghan heat. In back of al-Zawahiri is the entrance to the tent, standing guard are two young, but battle hardened, Marines in full combat gear and weaponry. Into the tent walks a man who is wearing civilian clothes, khaki shirt and pants with comfortable boots on his feet. He carries a briefcase. He lays the briefcase on the table and pulls out papers that he neatly arranges on the table, he then pulls out several pencils that are sharpened and two pens. Before he sits down he turns on the video recorder that is on a tri-pod and directed at al-Zawahiri.

Interrogator: Mr. al-Zawahiri my name is Dennis Smith, excuse me. Could one of you please remove Mr. al-Zawahiri's hood from over his head and allow his hands to be cuffed in front of him please?

The Marines stationed at the door look at each other with disbelief and move forward. While one moves into the prisoner's line of sight with his M16 rifle pointed squarely in the middle of his chest. The other Marine yanks the hood off of al-Zawahiri's head causing the prisoner to let out a grunt, then roughly grabs his wrists and unlocks the cuffs moving his hands to the prisoner's lap where they are again locked onto the chain around his waist.

INT: Sorry for the rough treatment there. Are you okay? Can I get you a glass of water or juice?

The interrogator pour a large glass of cool water and places it on the table in front of the prisoner.

INT: As I was saying, my name is Dennis Smith and I am with the United States Government. Since 2010 and the prosecution of my predecessors in this position of field interrogator for the Central Intelligence Agency our government has changed our guidelines for this procedure. As such I must read you the following statement before we begin. First, I know from your background you are fluent in many languages. Can you understand what I have said so far?

AAZ: Yes

INT: Good! Okay let's begin. He picks up a paper from the desk and reads:

As I have stated my name is Dennis Smith, I work for the Executive Branch of the White House assigned to the Justice Department in the section of Interrogation of Personnel Captured in Foreign Lands. If you have any complaints from your treatment or my actions you may contact the base commander and request the proper forms to complete and submit. As we have our talk today I must inform you that the session is being not only recorded by the camera in back of me, but also being viewed live by attorneys in Washington for the U.S. Justice Department and also in a special office established by the American Civil Liberties Union. The purpose of the taping and their viewing is to ensure I follow the policies and procedures established by the Justice Department by Attorney General Eric Holder under the 2010 Guidelines for Judicious Interrogations to Establish a more Kind America.

Do you understand we are being watched and this session video taped? Oh and also when we are finished a copy of the tape will be made available to you and your legal representative when he arrives. Do you understand?

AAZ: Grins as he nods his head Yes, I am understanding.

INT: Big grin That's great! Okay let me continue with the disclosure:

You are in the custody of the United States of America suspected of committing crimes against the people of the United States. While you are in custody it is the policy of the United States to not use coercive techniques or methods that may cause you physical or mental discomfort, pain, anguish, anxiety, confusion or disorientation; commonly referred to as "torture." Interrogator makes exaggerated quote signs in the air with his hands.

It is our objective to establish a welcome environment for you so that we may discuss your history with the al-Qaeda network and any operations that may be currently active or being planned that may bring harm to any citizens of the United States of America.

To help us establish with this objective I have a Prisoner Preference In-Take Form, a checklist, for you to complete to inform us of any special dietary needs you may have, any medications you may be taking under a doctor's prescription, type of music you prefer to listen to when relaxing--I might add as personal aside we have an extensive collection of CDs from musicians from all over the world, quite delightful. Continuing, what your preference is for bedding, soft or firm mattresses, pillows that type of thing. Finally, you are on a Federal installation so all the buildings, or structures such as this tent, are subject to the anti-smoking laws of the United States of America so no one may smoke except in designated areas. If someone violates this law in your presence please notify myself or the base commander immediately and that individual will be harshly disciplined for not only violating the ant-smoking law but subjecting you to his nasty habit and the second hand smoke.

Also on the in-take form is a lengthy area concerning your faith and how you choose to worship. If possible, and if he is willing, we can try to bring your spiritual guide to meet with you and pray with you while in our custody in this region.

One other point. If you find the language I used during our conversations to be offensive please let me know. As I am American I am not fully aware of the cultural sensitivities you may have that I may offend. I will refrain from such derogatory terms as "Jihadist" "Terrorist" or "Islamasist" but if I happen to use another term or word that offends you please let me know.

Finally, I wish to reiterate that our objective hear is to establish a comfortable atmosphere so we can have a genuine dialogue about our differences and so you can let us know of any plans for operations that may bring harm to the United States or its people. It is about establishing trust between you and me, and trust between your people and our people; trust we know was so badly damaged by the tactics and actions of my predecessors as the extracted information from those captured in similar situations to yours. While we recognize the valuable information obtained from such horrible procedures and techniques--can you imagine? They blew smoke in their faces, played heavy metal music and kept them awake for hours on end? But we have covered all that and the President has apologized on behalf of our nation. Anyway while recognizing the valuable information obtained through such methods our nation's leaders wish to create a more welcome environment so that we may establish a new relationship.

So are you ready to begin?

al-Zawahiri looks around with a look of confusion.

AAZ: This is a joke isn't it? You are trying to soften me up so when the tough guys come I am caught unaware!

INT: I assure you Mr. al-Zawahiri this is no joke, we care about you as a person and while we acknowledge that you have participated in the killing of thousands of innocent people around the world we wish to begin a new relationship and allow you to renounce the violence you are planned and participated in. If you speak to us I think you will find a tremendous burden lifted from your soul, you will feel re-born and re-invigorated! Now, can you please tell me of any current plans your organization has to bring harm to the United States or its citizens?

AAZ: No

INT: Please?

AAZ: No

INT: Pleeease?

AAZ: No

INT: Come on Mr. al-Zawahiri, you are not participating as we build trust! Please tell me about any current operations.

AAZ: No

INT: Please....

AAZ: No and I want a lawyer

INT: Well if that is the way you want to have it go. Okay we will have a lawyer from our Justice Department meet you in an hour. In the meantime please complete your in-take form so we can be prepared for your stay. And if you need to use the restroom and freshen up so you are more comfortable please let the one of the Marine guards know. I am pleased to have this chance to meet you and look forward to our conversations!

AAZ: Infidel pig.

INT: Well I can see we will have to start with trust building and get rid of that nasty name calling. I will see you in an hour, in the meantime please consider giving us the information I have requested. It sure would help me out personally with my superiors. Have a nice afternoon.

As the interrogator leaves the tent al-Zawahiri leans back in his chair and smiles. "It is true," he thought. "The Americans have abandoned any type of interrogation techniques to force information out of me. If only they had done this before Khalid Sheikh Mohammed had been captured more of our operations would have been successful!"

.

Politicians Say The Darnedest Things

Attorney General Eric Holder, State Senator Alan Lowenthal, Governor Arnold Schwartzenegger

This past week three politicians had some real doozies, two I thought were just plain dumb statements and the third has caused quite a stir from some on the right but I thought it was truthful. Here they are, you be the judge.

First come California State Senator Alan Lowenthal (D) on the floor of the Senate during the marathon session to pass a bill to bridge the cash crunch facing the state. As you may recall the bill was held up because our state wisely requires a two-thirds majority to pass tax hikes and the Democrats needed three Republican Senators to vote for the bill on the floor. What Lowenthal said was, in my opinion, not only quite dumb but very indicative of why California has the constant fiscal problems it does.

“It doesn’t matter how we got here.” Our state is on the verge of bankruptcy, tax payers are not receiving refunds from money already paid to the state, workers are being furloughed on an every other Friday basis, a $42 billion deficit is on the horizon, and “it doesn’t matter how we got here.” Um, yes it does; it matters very much how we got here and the fact that Lowenthal, and no doubt plenty of other Democrats in Sacramento and across the state, think it does not matter is about ninety percent of the problem. We got here because despite holding out for less spending increases the past five years Republicans were still unable to stop a 40% increase in spending by Democrats—enabled by our SaysHeIsARepublican Governor. It matters because willy-nilly without concern as to the future our gerrymandered-term-limited-Democratic dominated Assembly and Senate spent money like whores in a lingerie store on pet projects and pork benefiting their main financial contributors: unions, particularly public employee unions. Mr. Lowenthal it does matter and it will matter and if you and your colleagues do not recognize this then please step aside and let someone else with an understanding of cause and effect take your places.

Next up comes our Governor, Arnold Schwarzenegger (R-sort of). After the catastrophic bill was passed he called Sacramento legislators “courageous.” Um, no it was not courageous it was in fact quite cowardly. Cowardly because it addressed none of the systematic problems that created not only this fiscal crisis for our state but guarantee future fiscal crises. Cowardly because our elected officials refused to face down those who bought their seats for them with millions and millions of dollars of campaign contributions and tell them they had to give something up for this state to get on the road to financial health. Cowardly because they know the system remains broken and rather than actually be somewhat courageous and fix the problems they passed them off to the next generation of lawmakers, and the one after that, and the one after that. “Courageous” is one of the few adjectives that would come to mind for me when it comes to describing our state government and its approach to their fiscal duties. Cowards hide problems or blame them on someone else, that is what our state legislature has done, again.

Finally is a statement made this week by Attorney General Eric Holder. During a speech for a ceremony celebrating Black History Month, Holder spoke about race relations in our country and said the American people“are essentially a nation of cowards.” Important in framing this topic is that Mr. Holder is black This through Hannity, Limbaugh, Coulter and many other talking and writing heads on the right into a snit. Comments ranged from “maybe he did not notice we elected a black man as President” to “perhaps he has forgotten that even forty years ago he would not have been able to eat in many of the restaurants in the city where he gave this speech” to “this is just like Michelle Obama saying she was not proud of her country” blah, blah, blah. They rose up and essentially said the Holder’s comments were dumb.

I happen to agree with Holder’s comments, when it comes to race relations and dialogue we are cowards. I know I often am. I am a coward because often in a group I will not say what I want to say, or will change it because I do not wish to offend, or worse be labeled. Race dialogue in this country has become almost non-existent unless given by the Jessie Jacksons, Al Sharptons or Rev. Wrights who shape the dialogue by castigating all that is not their version of black-white relations. Often those, who are not people of color—i.e. white—attempting to speak about race, or have a dialogue inevitably make a statement or use a word or somehow have their comments intentions misunderstood and are torn apart by those with an interest in perpetuating racial divisions (see Jackson, Sharpton, Wright, et al). While trying to have an honest dialogue those who disagree with their viewpoint will attack them, will label them racist, will demand retractions and dismissals. Against this backdrop of possible repercussions, fear is created for many white people who then become afraid to discuss race relations and openly ask questions and share their thoughts and feelings. So yes Mr. Holder we have become a nation of cowards, what are you going to do to change this? How are you going to give me the courage to speak my thoughts without fear of retribution, labels and misconstruing of my comments to fit someone else’s agenda? How will you allow open and honest dialogue between all blacks, all Asians, all Hispanics, all whites? It is easy to label someone and dismiss them because of the label—a favorite tactic of some commentators on the left. It is much more difficult however to create and respect an environment of openness that allows everyone to speak their opinion, to learn other’s opinions, and come to understand that unity does not mean uniformity, nor agreement.. Unity means the ability to live together, respect each other and be able to have discussions, conversations, disagreements and experiences together—openly, freely.

Two dumb statements and one truthful statement. Two statements that foreshadow more of the same bad governance in our state and one statement that, if properly interpreted and acted upon, can forever change our nation and our ability to interact and live in Unity.