Opportunity and amnesia



Regrettably, I have no time today to delve into the Elena Kagan high court nomination - short version: she'll easily parry the expected attacks from the left and right, and survive the Kabuki confirmation process that she once called a "vapid and hollow charade" - but I do have time to post an expanded an updated version of my Sunday print column:

When word first spread that a bomb-laden SUV had been discovered in Times Square, I decided to track how long it would take for the usual conservative caterwaulers to blame the Obama team.


Before the failed bomber’s identity was announced, Rush rushed onto the air with his musings: "I wonder if his SUV had an Obama sticker on it? Notice how quickly they got it out of Times Square before anybody could hop and maybe see an Obama 2012 sticker on the damn car." And after the bomber was named, the talk show titan unveiled his big scoop, which he lifted from a fact-free right-wing blog: "Guess what? Faisal Shahzad is a registered Democrat!"

Limbaugh's scoop was wrong - what a surprise! - and while it’s tempting to simply ignore his cartoon fantasies, the fact is that, all too predictably, many of his ideological brethren are also trying to politicize the Times Square incident at President Obama’s expense, albeit in far more respectable language. In the eager words of Republican pollster Whit Ayers, "anything that makes (Democrats) look weak on national security creates an opportunity for Republicans." This is regrettable, given the gravity of the terrorism threat and the crying need for a thoughtful, comprehensive, nonpartisan response.

Unfortunately, knee-jerk habits are hard to break, as evidenced early last week by the Fox News hostess who wondered aloud, "If you have an administration that does not want to say the word terror, then how the heck do you fight terror?" – a fascinating disquisition that somehow overlooked Obama’s Inauguration speech (he said the word “terror”), and his Dec. 1 speech about the war in Afghanistan (he used variations of the word 10 times). And yesterday, Liz Cheney tried her own version of the Big Lie, lamenting on Fox News that the Obama people "aren't willing to acknowledge that (they're) facing a committed network of terrorists" - a most amusing claim, given the escalating drone attacks launched by Obama against the committed network of terrorists.

Republicans in search of partisan "opportunity" have predictably jerked their knees, complaining anew about how Obama is supposedly wimping out by treating terrorist suspects as common criminals and giving them the right to remain silent. We heard this one last Christmas, when the failed underpants plane bomber was Mirandized and the GOP promptly launched its bid to frame the ’10 midterm election as a referendum on Democratic national security softness.

John McCain declared on TV the other day that it would be "a serious mistake" to read Shahzad his Miranda rights "until all the information is gathered" – a tricky position, given the fact that Shahzad is an American citizen who, like all citizens, is entitled to those rights. Peter King, the New York GOP congressman, fretted, "I know he’s an American citizen, but still." (But still what, exactly?)

Shahzad was Mirandized after talking openly to the authorities, and he’s still saying more than enough to prosecute him effectively in civilian criminal court. Indeed, the unsealed criminal complaint says: "Shahzad admitted that he had brought the Pathfinder to Times Square – and attempted there to detonate it." His confession will be admissable in court precisely because he was Mirandized.

No matter. The Republicans nevertheless keep complaining about Obama’s reliance on the criminal courts, and his refusal to treat these suspects as military combatants; in the words of former New York Gov. George Pataki, the policy that permits terror suspects to "lawyer up" has "weakened our security."

But I continue to be fascinated by their willful amnesia, which allows them to forget the George W. Bush team’s heavy – and successful - reliance on the criminal courts.

Richard Reid, the failed ’02 shoe bomber, was Mirandized by the feds roughly five minutes after he was removed from the plane – and he wasn’t even an American citizen. Bush’s Republican allies didn’t utter a word of complaint about that. Reid was processed through the criminal courts. Again, not a word of complaint. Four years later, the Bush team prosecuted 9/11 conspirator Zacarias Moussaoui in criminal court. Again, not a word of complaint. The Bush team also prosecuted '01 "dirty bomber" Jose Padilla in civilian court. Again, not a word of complaint.

The GOP’s efforts to politicize the terror issue hinges heavily on cleansing the memory of anything that occurred prior to Obama’s Inauguration Day, but the great thing about our open society is that empirical information can’t be flushed down the Orwellian memory hole. To wit: The Bush administration, in one of its own budget documents, reported that, between 2001 and 2008, it had utilized the criminal courts to obtain 319 convictions in "terrorism or terrorist-related cases" – roughly 90 percent of all cases, with the average sentence running for 16 years; by contrast, Bush’s people prosecuted only three trials in military courts, and two of those defendants later went free. Yet, again, not a word of Republican complaint.

Quite the contrary, some Republicans (notably Massachusetts Sen. Scott Brown, and occasional GOP affiliate Joe Lieberman) now want to change the law and retroactively strip Americans of their citizenship - and their Miranda rights - if they are deemed only to be "affiliated" with bad people. A few Democrats have also voiced interest. But given how often the feds manage to extract useful information before they even read the terrorist suspects their rights (thanks to the "public safety exception" that the Supreme Court created in 1984); and given how well the criminal courts have historically handled the terrorism cases (as indicated by the aforementioned Bush stats), this new citizenship-stripping proposal appears to be attacking a nonexistent problem, much the way Bill O’Reilly used to whip up faux warnings about a liberal "war on Christmas."

Perhaps retired Brigadier General James Cullen, a former chief judge of the U.S. Army Court of Criminal Appeal, said it best the other day, while defending the Miranda rule: "Attacks on the rule of law constitute a greater danger to all Americans than any threat posed by terrorists...We should challenge anyone who suggests we ignore what makes us strongest."

Indeed, what’s most striking about Shahzad’s confession – assuming it’s truthful – is that he was motivated not by any perception of Obama’s weakness, but of his strength as commander-in-chief. Shahzad reportedly says he viewed his action as payback for the American drone attacks on terrorist enclaves in the Pakistan tribal region. Obama is approving far more drones than Bush ever did; in fact, the GOP would likely be attacking him as weak if he wasn’t engaging so heavily in airborne assassination.

And that’s just one facet of the serious discussion that needs to be conducted on anti-terrorism policy, going forward. If it’s imperative to take the fight to the enemy, how best can we minimize the odds of retaliatory blowback in our own backyard?  How best can we plug the holes that remain in our vast and porous security web?

The partisan sideshows lead us nowhere. Arthur Vandenberg, a consequential Republican senator, famously said 60 years ago, at a time when wars were fought abroad, that "politics stops at the water’s edge." Perhaps his plea deserves fresh attention, now that war has come to this side of the water. Indeed, former White House counterterrorism aide Richard Clarke suggested yesterday in The Washington Post that all Americans should agree on this point principle, if or when a future Shahzad manages to succeed:

"Let us warn now that those who seek political gain from the murder of Americans will be regarded as despicable - whether they are the terrorists who carry out the attacks, or the politicians who seek partisan benefits from them."