Behind the Times

Let's imagine it's August 2001. And let's pretend that the Clinton Justice Department never erected the procedural war that, to borrow the words Deputy Attorney General Jamie Gorelick wrote in 1995, went “beyond what is legally required” in obstructing communications between the FBI's intelligence division and its criminal investigators.

As a result, let's say the FBI connects its dots. When an intelligence agent realizes terrorists Khalid al-Midhar and Nawaf al-Hazmi (two of the eventual 9/11 hijackers) are in the country and asks the Bureau's criminal division for help in locating them, headquarters encourages a cooperative effort instead of turning him down because of the wall. Agents thus collaborate and intensify surveillance of these men. They turn out to have vague connections to the al Qaeda bombers of the U.S.S. Cole ten months earlier. With a rapidity that defies experience, the Bureau knits this together with clues about flight training by a cabal of Middle Eastern men, all Muslims and mostly Saudis.

Mind you, there have been no 9/11 attacks at this point. But the agents discover evidence of visa fraud, some immigration violations, and some questionable transfers of money from overseas. Plus, the flight training, though not illegal per se, is highly suspicious. The FBI throws into the mix some non-specific chatter that al Qaeda is looking to attack American interests (as noted in a briefing memo given by the intelligence community to President Bush in early August); and that, back in the mid-1990s, there was some talk among al Qaeda-linked terrorists about maybe crashing explosive-laden planes into structures located in densely populated areas.

Out of the endless streams of intelligence sluicing into the system, the Bureau culls out these disparate nuggets, fits them together, and boldly concludes that al-Midhar, al-Hazmi, and their associates are conspiring to hijack jumbo jets and pilot them into buildings of political and economic significance in major metropolitan areas. The men are immediately arrested on immigration and visa-fraud violations. Weeks later, the case remains thin and no one has cooperated — the FBI having done its investigation by the book, gotten the subjects counsel, and provided all the Miranda rights and then some that the ACLU could conceivably have asked for. Nonetheless, Attorney General Ashcroft holds a press conference announcing the defendants' indictment for conspiring to carry out a massive terrorist attack.

Can you imagine how the New York Times would have howled?

“HARDLY A THREAT”

You can bet your bottom dollar that the Gray Lady would have unburdened itself of just the type of splenetic editorial it spouted last Friday. It would have railed at how “[o]ur investigators, sent after dangerous terrorists, came back with a motley crew of hapless innocents and people who had said and done stupid things but were hardly a threat to the nation's security.” It would have slammed the attorney general, its favorite punching bag, for “mak[ing] a huge deal out of arrests that turn out to involve unimportant people with bad attitudes but no ability — or even any apparent will — to do anything dangerous.”

In a nutshell, that was the assessment the Times offered regarding the Justice Department's overall post-9/11 performance. Worse, and equally libelous, it laid a disingenuous catalogue of abuse directly at the feet of the Patriot Act — tellingly starting out by conceding that Patriot was comprised of “minor infringements of civil liberties” but, within a few peevish paragraphs, lathering itself into a summation that these “extraordinary powers of federal authorities” needed reining in.

The Times, alas, inhabits a delusional September 10 world, and its indictment is far shoddier than anything of which it accuses the Justice Department. The newspaper haughtily declaims that it was expecting law enforcement, as a consequence of being handed Patriot tools, to perform “well-planned and well-executed operations that would make us safer.” Naturally, without mentioning that we have in fact been safer, there having been no domestic terrorist attack in over three years, the Times proceeds to list an array of horrors — most of which are misleadingly described and almost none of which even implicates the Patriot Act, much less raises a legitimate civil-liberties concern about its provisions. On this, the paper surmises that the legislation needs overhauling.

It boggles the mind how little the Times and its 9/10 allies have absorbed about the perilous realities of our 9/11 era. How irrationally circular, how suicidal, is their view of how we should confront these challenges. Or, more aptly, shrink from them.

PREVENTION FIRST

The new enforcement paradigm ushered in by Attorney General Ashcroft and FBI Director Robert Mueller is: prevention first, prosecution important but subordinate. Without even getting down to cases, this is a tectonic shift in and of itself. To comprehend what it means for investigators, imagine a bombing conspiracy. In a “prosecution first” scenario, law enforcement has two possibilities. If agents are unaware of the conspiracy — as they generally will be unless they are out pro-actively scouring the terrain — they simply do nothing and wait for an attack to occur, lest they be accused of profiling, or “chilling” what we are told are the fundamental rights of terrorists to speak, associate, and check explosives manuals out of their local libraries. Or, if agents are lucky enough to stumble onto the plot, they might let the scheme play out as long as possible, try to identify all the players, and firm up evidence so it can meet the “beyond a reasonable doubt” burden applicable in court — running the risk that they could also lose control and that a bombing that could have been thwarted had they pounced immediately will happen right under their noses.

In a “prevention first” world, agents eschew this mindset. They swoop in and arrest everyone connected to the plot — even though it is a lock that the earlier a scheme is disrupted the shakier the evidence will be, particularly against the highest-ranking, most insulated terrorists. The more prevention becomes the focus, the more essential become the less sensational acts and crimes that are so commonly found in the lead-up to terrorist acts — and that are vehicles for neutralizing, imprisoning, and deporting terrorists.

The Justice Department understands that immigration crimes by illegal aliens — or, more congenially, “undocumented immigrants” — are unimpressive to the Times and its cohort; that they view visa violations as more a function of the government's cultural insensitivity than lawlessness; and that they hold an all-too-benign view of paramilitary training in an al Qaeda camp (which routinely includes schooling in explosives, close combat, and even hijacking). Law enforcement realizes that its thinner cases will be the targets of bien-pensant scorn in Georgetown and on the Upper West Side. That, however, is the price of a strategy aimed at stopping terrorists before something goes boom and innocent people die.

WHAT THE TIMES DOESN'T TELL YOU

So what is the Times's latest litany of complaints? The first is the recent decision to redirect a flight because a passenger, the British singer once known as Cat Stevens, was on a terrorist watch list. Of course, leaving aside that it was the government's failure to keep a sufficiently inclusive watch list that led to the terrorists' success on 9/11, the Times neglects to mention that there may be excellent reasons for the pop star's presence on the list. Instead, it insinuates that the cause may be his conversion to Islam. Yet even though the government has not released all of the relevant intelligence, it has been widely reported that the man now known as Yusuf Islam has a history of advocating jihad (including public support of Iran's fatwa calling for the death of Salman Rushdie) and, possibly, of backing militant Islam financially (he was, for example, expelled from Israel in 2000 on suspicion of having given Hamas thousands of dollars in 1988 — which he denies having done knowingly). But he did, after all, once croon about riding on the “Peace Train,” so what could the authorities have been thinking?

Next is the unraveling of the Detroit terror cell case, to which the Times devoted nearly 4000 words last Thursday. The paper editorializes about DOJ's “terrible miscarriage of justice” in choosing to “mov[e] against four Middle Eastern immigrants[,]” with the result that “[t]hree of them were convicted and imprisoned — two on terrorism charges — until the government was forced to repudiate its own case.”

Here's what the Times doesn't tell you: These particular “Middle Eastern immigrants” were found in an apartment with, among other things, forged green cards and visas, fake passport photos, and 105 audiotapes advocating jihad. Only the charge of material support to terrorism has collapsed. That happened because of overly aggressive tactics by the local prosecution team. It goes without saying that this is cause for great concern and censure. That is precisely why DOJ itself unearthed and brought the misconduct to the attention of the trial judge, who commented that this was an example of “the highest and best tradition” of the Department.

As it happens, three of the “Middle Eastern immigrants” were convicted of fraud and misuse of identification documents. Although it admirably asked the court to reverse those convictions because of its prosecutor's errors, DOJ, far from “repudiat[ing] its own case,” will be re-trying the three defendants on the fraud charges — serious felonies founded on strong evidence that will likely result in re-conviction and ultimate deportation.

THE PRICE OF ACTION

The Times next revisits the case of Brandon Mayfield, whom the Justice Department detained for two weeks in May, suspecting his possible involvement in the March 11 Madrid bombings. Suspicions about Mayfield turn out to have been premised largely on faulty forensics — viz., a flawed fingerprint match. It is a stunning exercise in hypocrisy to find the Times — a newspaper that itself must daily publish a (sometimes lengthy) corrections section and that allowed the fiction-churning Jayson Blair to run amok as a “reporter” for years — leaping so piously onto this mistake. Still, there is no getting around it: Mayfield's detention was a serious government lapse. It merits sober criticism, and it is appropriate that the FBI has both apologized and launched an investigation of its scientific procedures.

Nevertheless, the Times's suggestion that Mayfield was targeted because he is a Muslim — based on the fact that Mayfield, a lawyer by trade who is suing the government, says so — is a bit much. To make the insinuation, the paper had ignored other germane information the FBI took note of in making Mayfield an investigative subject and detaining him for two weeks. This included: phone records tying Mayfield to a local Muslim charity linked to terrorism; indications that a computer in his home had been used to research (a) airline schedules for travel between Portland and Madrid, (b) sites marketing rental housing in Madrid, and (c) sites for the Spanish rail system that was the object of the terrorist attack; the fact that, in a child-custody matter, Mayfield had represented Jeffrey Battle (later convicted of material support to terrorism in the Portland 7 case); and the recovery by agents, in a court-authorized search of Mayfield's home, of a handwritten note with a phone number in Spain, two firearms, and a note written in September 2001 expressing support for the Taliban. (See here.)

There appear to have been innocent explanations for all of this, which is no doubt why the Justice Department never charged Mayfield with any crimes — he was held as a material witness. But that hardly means the investigation was inappropriate, even if detention was overkill. We are talking about the mass murder of 200 people. Just imagine what the likes of the Times, not to mention the 9/11 Commission, would say about DOJ and the FBI if it turned out that they had this kind of information about someone, did nothing, and then a Madrid-like attack happened. A principal point of the final 9/11 Commission Report — which the Times, it often seems, cannot laud often enough — is that the culture of law enforcement has long been too risk averse. Is it any surprise why this is so? The price of action, which inevitably includes the certainty of occasional human error, is to have the “paper of record” brand you a bigot as well as an incompetent.

PRESIDENTIAL PREROGATIVE

The Times, naturally, cannot resist reprising its shopworn attacks on the administration's wartime prisoner detentions. It declaims that the president “gave himself the power to declare anyone, including American citizens, an 'enemy combatant' and then jail such people indefinitely without charges or due process.” Of course, it is the Constitution (and in this case, a post-9/11 use-of-force authorization by Congress) that gave this power to the president; the Supreme Court has reaffirmed the power; and war prisoners are not held “indefinitely” but rather until hostilities have ended. The detainees, furthermore, have all gotten due process; what they have not gotten is the robust panoply of rights the Times would accord to America's enemies, which, fully unfolded, would soon have our military seeking judicial clearance before firing a missile at enemy forces in a foreign country.

The newspaper, once again, takes up the cause of Yaser Hamdi, an American by birth but a Saudi by upbringing who was detained after being taken off a battlefield in Afghanistan, apparently fighting for the enemy — although the Times regards such circumstances as insufficient to “demonstrate[e] that [Hamdi] had any connection to terrorism.” The Times is riled by an extradition deal that ends the case without a trial.

But a trial of Hamdi at this point would almost certainly have presented a plethora of problems. At the time of his apprehension, the U.S. did not know Hamdi was an American; rather, he appeared to be a foreign enemy combatant captured not by American troops but by our Northern Alliance allies. The U.S. had no reason then to believe there would come a radical departure from the prudent tradition of judicial deference to the executive branch regarding detentions of enemy operatives in a war zone outside the jurisdiction of the U.S. courts. Moreover, shocking as it may seem, the Northern Alliance probably did not call a halt to combat operations against al Qaeda so that pristine, FBI-like reports could be compiled in anticipation of litigation over the circumstances of Hamdi's apprehension. The evidence, further, may have been of a hearsay nature and may have implicated classified information that would be unwise to reveal at a public trial while we are at war — and while we must be able to assure allies that, if they give us sensitive intelligence, such information will not be broadcast to the world in U.S. court proceedings.

In addition, while any enemy soldier is a threat, Hamdi's individual case was never nearly as important as the principle it represented: that it is the prerogative of the president, not the courts, to determine whether and when to detain enemy soldiers during active hostilities. That, and not the danger Hamdi himself portended, is why he was held for two years.

As the Times fails to note, the government conceded that Hamdi's case was properly before the federal courts once it emerged that Hamdi was an American. So, now that the Supreme Court has ruled, the government had a choice: It could continue fighting in legal proceedings to hold Hamdi; or, if it could design a solution in which Hamdi was no longer a likely threat to rejoin the fighting in Afghanistan, it could release him — just as it has released hundreds of other combatants. The Justice Department opted for the latter, more merciful course: release to Saudi Arabia for five years, with Hamdi renouncing his American citizenship and agreeing to report any contacts with terrorists. To the Times, this was an “absurd arrangement” that the newspaper speculated the Saudis would decline. Not surprisingly, the Saudis did not see it that way, and Hamdi has been deported. Again, one can only wonder what the Times would have said if Ashcroft had instead chosen to continue holding Hamdi until the “indefinite” end of the war.

LOOKING FOR LACKAWANNAS

Finally, in a truly underhanded swipe, the Times suggests that perhaps the al Qaeda sleeper cell in Lackawanna was more of a figment of Justice's imagination than a real terror threat: A “thin case,” involving “six young Arab-Americans” who merely “spent time at training camps in Afghanistan,” but in which the Department somehow “managed” to persuade defendants “to plead guilty to terrorism charges and accept long prison terms.”

It is difficult to know quite what to say about this smug recitation except that it well exemplifies what is meant by a “September 10 mentality.” The Times longs for the Clinton era when the cases involving young Arab men were more serious: e.g., the 1993 World Trade Center bombing featuring six dead; the Khobar Towers bombing (19 dead); the embassy bombings (over 200 dead); and the Cole bombing (17 dead).

That, however, is not what the majority of Americans is looking for from its national-security apparatus. It wants more Lackawannas: would-be terrorists stopped in their tracks before they can kill. That is why most Americans look favorably on the full body of Justice's post-9/11 work, including the cases the Times somehow forgot to mention in its critique. A record that includes, among other accomplishments: the conviction of “shoe bomber” Richard Reid and the recent indictment of his accomplice for trying to blow up a commercial airliner in flight; the Portland 7 case breaking up a terror cell that was scoping out Jewish schools and synagogues for a terrorist attack; the Virginia Jihad case dismantling still another cell of nine defendants convicted on charges ranging from support of the Qaeda-affiliated Lashkar-e-Taiba to conspiracy to levy war against the U.S.; the guilty plea of Abdurahman Alamoudi for terror funding; the indictment of Florida professor Sami al-Arian for helping run the Palestinian Islamic Jihad organization which is responsible for scores of murders by suicide bombers in Israel; the conviction of bin Laden intimate Enaam Arnaout for using his Benevolence International Foundation as a conduit to fund terrorist cells in Bosnia and Chechnya; and the recent racketeering indictment against members of Hamas.

Perhaps, though, there is an explanation for the Times's memory lapse. Most of the cases I just mentioned were advanced in one way or another by investigative improvements made possible by the Patriot Act. Though the purported need to “revise” Patriot is the transparent agenda of the Times's bilious editorial, not a single misstep in the cases it discusses — even if you were to credit its skewed version of events — has anything to do with the new post-9/11 powers conferred by that legislation.

If, disastrously, the Patriot Act were repealed in its entirety tomorrow — if, as the Times would seemingly prefer, the infamous wall were rebuilt — there would still occasionally be prosecutorial misconduct, forensic error, enemy combatants, and, yes, sleeper cells. The only difference would be: We'd be a lot more vulnerable to the threat they posed.

That is the blissful 9/10 haze the newspaper of record would navigate us into, and from which the Bush administration and the Justice Department are sedulously steering us away.

— Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.