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Boehner Retains Leftwing Critic of Executive Power for Lawsuit against Obama

November 19th, 2014 - 5:27 pm

I am with Power Line’s Paul Mirengoff on the too-clever-by-half choice by Speaker Boehner to retain leftwing law professor Jonathan Turley as counsel in the House’s long-delayed lawsuit against President Obama. In the end, I don’t think it will matter. As Paul points out, judges tend to decide cases based on the merits. When they don’t, their own political leanings matter a lot more than those of the lawyers for the parties.

Moreover, as I’ve opined, the lawsuit is frivolous: The Framers gave Congress its own powers to deal with a rogue president and would have been appalled at the thought of the powerful first branch asking the “least dangerous” third branch to do its heavy lifting. Moreover, as I recounted in Faithless Execution, Obama pays no more attention to court decisions against him than to statutes he dislikes. Since judges have no power to execute their rulings (they need the executive branch for that) a decision against Obama would have no effect – which makes it even less likely that a judge would agree to hear the case, in which the House already faces a daunting challenge to establishing legal standing to sue. (And by the way, that standing challenge now includes not only the fact that courts are not meant to resolve these policy disputes between the political branches, but the problem of mootness: Boehner talked a big game on the lawsuit but has waited so long to file it that many of the president’s Obamacare “waivers” that the suit was to target are about to lapse.)

But even if we indulge the dubious assumptions that a court will take the case and could give a rat’s rump about the politics of the lawyers, the relevant fact about Professor Turley is not that he is a liberal taking a principled stand against a Democratic president’s lawlessness. It is, as Paul notes, that he is an extreme opponent of executive power, even in areas where the president has broad inherent authority. So if a judge bothered to weigh Turley’s politics, he would either discount the professor’s advocacy as the product of excessive skepticism about presidential action; or adopt Turley’s theories and issue a ruling that hampers future Republican presidents in matters of foreign affairs and national security.

That is the problem with political stunts like the lawsuit. They don’t have real upside but they’re not always harmless.

Last week, while Republicans popped open the champagne over the electorate’s emphatic rejection of the Obama left’s policies, Mr. Obama significantly advanced one he’s been pushing – against public opinion and with haltingly incremental success – since the first hours of his presidency. Lost amid Shellacking 2.0 – and between the sudden dump of over 60,000 previously withheld Fast & Furious documents and the president’s reaffirmation of his executive illegal-alien amnesty vow – was the administration’s further dismantling of the post-9/11 counterterrorism paradigm.

With nearly no one noticing, the administration transferred a long-held terrorist detainee out of Guantanamo Bay. Fawzi al-Odah was returned to his native Kuwait, another Gulf halfway house between Gitmo and return to the jihad. He had been detained under the laws of war for over a dozen years because he was assessed as posing a continuing danger. Naturally, his release was instantly heralded by an al Qaeda leader in Syria – indeed, by a top figure in what the administration refers to as the Khorasan group, the al Qaeda component plotting attacks against the U.S. and the West. And astoundingly, it appears that al Qaeda knew Odah’s release was coming before the American people were informed.

Odah’s transfer comes just as the president, forced to confront the increased jihadist threat from al Qaeda and ISIS, has escalated the number of American troops (as “advisers” only, of course) and continues conducting an aerial bombing campaign. It fulfills a prediction made this past summer by former Attorney General Michael Mukasey and other commentators (including your humble correspondent): The release in July of five Taliban commanders in exchange for the deserter Bowe Bergdahl was intended to help Obama achieve the vow to close Guantanamo Bay, made on his first day in office. (Actually, Obama promised to close Gitmo within a year. He is five years behind schedule because Americans hate the idea, igniting strong congressional opposition.)

The laws of war, the foundation of Bush-Cheney post-9/11 counterterrorism, provide for detention without trial of enemy combatants until the conclusion of hostilities. Hostilities are not close to being over – as Obama quite obviously recognizes since our forces continue to conduct lethal attacks. We know, moreover, that a very high percentage of former detainees return to the jihad. The CIA has conceded that it could be 20 percent, but the truth is it’s no doubt higher – our intelligence community has no idea who goes back to the jihad unless they encounter the terrorist on the battlefield or are in the unusual position of having good intelligence about about what he’s up to. We do know that former Gitmo detainees regularly resurface as al Qaeda leaders in places like in Yemen, Iraq and Libya.

Yet, by releasing the Taliban commanders – the “worst of the worst” … and at a time when the Taliban was (just as it is) still conducting terrorist operations against our troops – Obama established a very high ceiling. By acceding to the release of high-ranking Taliban operatives despite the heightening threat, the administration makes it far more difficult to rationalize the continued detention without trial of virtually any other Gitmo detainee. By comparison, the Taliban commanders were bound to be worse.

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Pretending to be guided by “science” rather than practicing politics in service of their post-American agenda, Obama administration officials persevere in the irresponsible suggestion that Ebola cannot be transmitted through the air – i.e., that it requires physical contact with an infected person that results in exposure to bodily fluids. It should go without saying that because viruses mutate, responsible scientists would never claim that the “science” about them is “settled.” But quite apart from the dynamic circumstances, government scientists are obviously concerned about air transmission in the here and now, even as the spin-meisters claim it cannot happen.

Aaron Klein has uncovered a “broad agency announcement” (BAA) from the Pentagon’s Defense Threat Reduction Agency (DTRA), soliciting research proposals to combat Ebola (in connection with the government’s efforts against chemical and biological threats). The BAA is appended to a “Federal Business Opportunities” notice – the notice can be found here, and the BAA is an attachment atop the right column, accessible through the link “HDTRA1-15-EBOLA-BAA”).

At page 7, Section 2.2.4 (“Ebola Characterization”), the Defense Department’s BAA explains that Ebola is “aerostable” and, since other filoviruses infect through “the respiratory route,” it is at least theoretically possible that Ebola could, too. (The CDC elaborates that Ebola is a filovirus.) As the BAA puts it:

 While current science indicates the disease can only be transmitted by contact with contaminated body fluids, it remains unclear if other transmission modes are feasible. Filoviruses are able to infect via the respiratory route and are lethal at very low doses in experimental animal models, however the infectious dose is unknown. There is minimal information on how well filoviruses survive within aerosolized particles, and in certain media like the biofilm of sewage systems.

The BAA goes on to add (my italics): “While current science indicates the disease can only be transmitted by contact with contaminat”Preliminary studies indicate that Ebola is aerostable in an enclosed controlled system in the dark and can survive for long periods in different liquid media and can also be recovered from plastic and glass surfaces at low temperatures for over 3 weeks.”

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We Need to Call It Terrorism

October 22nd, 2014 - 7:27 pm

Within three days there have been two jihadist attacks in Canada, carried out by Canadian citizens who recently converted to Islam. No terrorist organization has claimed responsibility, at least as yet. Nevertheless, Prime Minister Stephen Harper showed no reluctance in calling the terrorists … terrorists.

Bravo!

Whether the attackers were incited by the summons to jihad from groups like al Qaeda and ISIS, or were actual members of such groups, there should be no question that these were terrorist attacks. The Obama administration’s practice of denying that terrorist attacks are terrorist attacks has been profoundly foolish – and it was good to hear the president seem to inch away from it today.

The point of this cockamamie denial approach is part political correctness and part plain politics.

President Obama has repeatedly claimed to have “decimated” al Qaeda and put it “on the path to defeat.” Actually, the terror network is on the rise. Furthermore, it is now rivaled by ISIS, a jihadist organization that may be even stronger. Denying obvious instances of terrorism, such as the jihadist mass-murder at Fort Hood, is a transparent effort to conceal the obvious falsity of the president’s claims. If these attacks are not really terrorism, the reasoning goes, then there must be less terrorism; therefore, the pretense of defeating terror networks can be spun as validated. As I’ve said before, it is a way of miniaturizing the threat.

It is more than that, though. Terrorism is fueled by an ideology. It is rooted, quite literally, in Islamic scripture. To cite one of many examples, in the Koran’s sura 8:12, Allah instructs Muslims: “I will instill terror into the hearts of the unbelievers: smite ye above their necks and smite all their fingertips off them.” Thus, Omar Abdel Rahman, the infamous “Blind Sheikh” I prosecuted for terrorism in the nineties, used to exhort followers:

Why do we fear the word “terrorist”? If the terrorist is the person who defends his right, so we are terrorists. . . . The Koran mentions the words “to strike terror,” therefore we don’t fear to be described with “terrorism.” . . . We are ordered to prepare whatever we can of power to terrorize the enemies of Islam.

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I would have thought I was reading the New York Times. But no, it was the Washington Times, whose Andrea Noble gave a platform to notorious Islamists yesterday, enabling them to masquerade as moderates who condemn Islamic State jihadists for purportedly running afoul of sharia law in their rampage through Iraq and Syria.

Ms. Noble helped the Council on American-Islamic Relations and Omar Shahin along by airbrushing their backgrounds: CAIR is presented to the reader as a mainstream “Muslim organization” opposed to terrorism, with no mention of the fact that it is a Muslim Brotherhood creation conceived to promote Hamas — one with a long history as an apologist for terrorists (indeed, it has had terrorists in its ranks). Not a word is breathed about Mr. Shahin’s unsavory background: ringleader of the infamous “Flying Imams”; leader of an Islamic Center in Tucson well-known for its al-Qaeda and Hamas sympathies; denial of Muslim terrorist involvement in the 9/11 attacks; and his ties to Islamic “charities” shut down by the government for promoting jihad.

Ms. Noble similarly whitewashes sharia. It would of course be nice if, as she intimates, there were no mainstream interpretation of Islam that supported sex slavery and extortion in the form of jizya – the tax required of non-Muslims for the privilege of living under the protection of a sharia state. But it is simply a fact that these practices have firm roots in Islamic scripture. While we should applaud the work of authentic Muslim moderates to reform these concepts, it is a disservice to our national security to minimize the threat by pretending that the extremist construction of Islam is utterly false and followed by only a fringe.

It is literal, plausible, and has millions of adherents.

But it is not my purpose to rebut the Washington Times’s happy-face sharia; the estimable Robert Spencer has already done that here (see also here). My focus is the continuing practice by the government and the media — and not just the left-wing legacy media — of presenting Islamists as both “moderates” and a reliable source of information about Islam. Islamists promote sharia, which — as classically interpreted — is a most immoderate body of law. And they are incorrigibly Janus-faced, peddling “religion of peace” treacle for credulous Westerners while lionizing jihadists when they figure no one but other Islamists are listening.

In 2010, The Grand Jihad – my book about the Muslim Brotherhood and its sabotage of the West — was published. As it happens, I included a chapter that dealt specifically with CAIR, Mr. Shahin, and the “Flying Imams” episode.

I reproduce that chapter below, and encourage readers to ask: (a) Isn’t the sharia debate, as Mr. Spencer demonstrates, more complicated than the Washington Times suggests; and (b) shouldn’t the Times either make full disclosure about its sources or, dare I say it, find better ones?

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Why is he always telling them what he’s not going to do?

This has become a constant refrain among President Obama’s Republican and conservative critics. And it is an excellent question. Why does the president tell jihadists from the Islamic State and al-Qaeda that the American campaign against them will be strictly limited to aerial bombing (sporadic, at that) and absolutely, positively will not involve the introduction of U.S. ground forces?

The theory behind the question is bulletproof: the only way you can hope to keep bad actors in check, to discourage them from acting roguishly in pursuit of their ambitions, is to indicate that you might respond with your superior powers. Even if you are reluctant to unleash those powers, the seed of doubt planted by signaling the possibility of decisive counteraction forces rogues to tread lightly. On the other hand, take your decisive weapons off the table and you’re sure to find ISIS mocking your impotence, sacking city after city, and poised to take Baghdad.

My question for my colleagues: why don’t we practice what we preach?

Back in June, my book Faithless Execution was published. Contrary to some of the commentary it provoked, I did not call for President Obama’s immediate impeachment. Indeed, I argued that the lesson of the Clinton impeachment episode was that it is a mistake to commence impeachment proceedings in the absence of strong public support for the president’s removal.

The point of the book was to address how presidential lawlessness — a threat to our governing structure over which the Framers agonized — is dealt with in the American constitutional system. Other than the ballot box, the Constitution provides only two ways for Congress to rein in presidential maladministration: the power of the purse and impeachment. That is, Congress can starve the administration of the funds needed to carry out its rogue practices, or it can remove from power executive officials — up to and including the president — who are lawless, derelict, profoundly dishonest, or incompetent in the carrying out their duties.

Like committing military “boots on the ground” in the Middle East, the use of these powers could be dispositive. Moreover, if Republicans signaled that reluctant resort to these powers was a distinct possibility — a signal that would rivet public attention to presidential lawlessness, and could thus alter the political climate — President Obama would be forced to factor that into his calculations.

Yet — adopting the president’s self-defeating strategy for conducting war — congressional Republicans cannot quickly enough or often enough tell the world what they are not going to do about Obama’s lawlessness.

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Last night’s post about Anwar al-Awlaki shows that I should stay away from variations of the word “break” in the context of news reporting. Used inaccurately, or at least incompletely, it can create the misimpression that one is erroneously assigning credit – or even personally claiming credit – for someone else’s good work.

To begin with the easy part, I am not a reporter and I do not break news or claim credit for breaking it. I am an analyst. I rely on the reporting of a number of terrific journalists whose reliability is well established, and on significant reporting by journalists whom I know less well but whose work can be corroborated.

In that spirit, I do not, and did not, claim to have revealed any new news about Awlaki. Rather, (a) two years ago, based on new reporting by others about Awlaki, I concluded – based on my own experience in prosecuting criminal cases and dealing with informants – that the government’s claims about its dismissal of a pending case against Awlaki did not make sense, and that it had probably tried to use him as an informant; and then (b) in last night’s post, I contended that new revelations, brought to light by others, bore out the legal analysis I had offered two years ago.

Now to the trickier part: assigning credit correctly. I always try to give credit to the reporting I rely on. In my Awlaki post two years ago, I credited a report by Fox’s Catherine Herridge. I did not claim that Ms. Herridge was the first to break the news that the government had intervened on Awlaki’s behalf to “un-arrest” him in October 2002. I credited her with breaking the narrower news that an FBI official had admitted that the government knew Awlaki was about to return to the U.S. before the Justice Department intervened on his behalf – a detail which proved the falsity of government’s original story that its dismissal of a felony arrest warrant for Awlaki was sheer coincidence.

My 2012 post then went into the background on Awlaki – both the evidence against him and his dealings with the government. For that, one of my main sources was the excellent Paul Sperry. I had also relied and lavishly credited him in my 2010 book, The Grand Jihad – in addition to his Awlaki reporting, Mr. Sperry’s work on the Muslim Brotherhood and its American network has been essential.

In his own invaluable 2005 book, Infiltration, Mr. Sperry had been the first (at least to my knowledge) to report on Awlaki’s “un-arrest.” This is no secret: Ms. Herridge has extensively credited him (including in her own superb 2011 book, The Next Wave); so did ABC news in a 2009 report that discussed Awlaki in the context of the Fort Hood massacre. I cited Mr. Sperry twice in my 2012 post, although not specifically on the “un-arrest” details. I meant no slight to Mr. Sperry (again, I’ve admiringly cited his work many times); it was simply a matter of Ms. Herridge’s then-new report about the FBI official’s testimony being the jumping-off point for my post.

In last night’s post, I observed that Ms. Herridge and Judicial Watch had stayed on the case. By saying this, I did not mean to imply that no one else had stayed on the case or done critical work on it. But I was writing about a report by Ms. Herridge a couple of days ago that was based on documents that Judicial Watch’s Freedom of Information Act lawsuit forced the government to disclose.

In describing Ms. Herridge’s years-long coverage of the Awlaki story, I stated that it was she “who in 2012 broke the news about Awlaki’s mysterious un-arrest a decade earlier.” This was a poor use of “broke” on my part. As just explained, what Ms. Herridge reported on in 2012 was the FBI official’s admission about an important detail concerning the “un-arrest.” News of the “un-arrest” itself had been broken years earlier by Mr. Sperry. Indeed, the new reporting by Ms. Herridge that I linked in last night’s post includes the following:

Previously obtained records show that in 2002, within days of al-Awlaki’s re-entry to the U.S., he showed up in [FBI agent Wade] Ammerman’s counterterrorism investigation in Virginia into Ali al-Timimi, who is now serving a life sentence on non-terrorism charges. [* See ACM note, below.] On Oct. 22, 2002, 12 days after the imam’s return, another FBI memo obtained through the Judicial Watch federal lawsuit (marked “Secret”) includes the subject line “Anwar Nasser Aulaqi” [ACM: i.e., Awlaki] and “Synopsis: Asset reporting.” The existence of the customs entry records was first documented by author Paul Sperry.

Hopefully, this gives credit where credit is due. It was not my intention to avoid doing that.

*ACM note: I assume Ms. Herridge meant that al-Tamimi was not charged under the federal code’s specific international terrorism statutes, which is true. I would not, however, describe the case against him as based on “non-terrorism charges.” He was, after all, convicted of inciting a terrorist war against the United States, attempting to aid the Taliban (a terrorist organization), and inciting the use of firearms and explosives. These are charges very similar to those in my own prosecution against Omar Abdel Rahman (“the Blind Sheikh”) in 1995 – a year before anti-terrorism law was overhauled and specific international terrorism statutes were enacted. The Blind Sheikh was convicted of, among other things, conspiring to levy a terrorist war against the United States, conspiring to bomb, and inciting attacks against American military installations. These were clearly terrorism charges even though the applicable statutes did not include the term “terrorism.”

New evidence pried from the government under the Freedom of Information Act (FOIA) proves the point I have posited here at Ordered Liberty: The federal government willfully intervened on behalf of al Qaeda terrorist Anwar al-Awlaki on October 10, 2002, undoing his arrest on felony fraud charges when he was detained at JFK International Airport in New York, and allowing him to walk away with a Saudi handler. As I argued over two years ago, the government’s story to the contrary – viz., that it was moved by sheer coincidence on the eve of Awlaki’s arrival to pull the plug on a weak case – does not pass the laugh test.

Twelve years ago, when the FBI intervened to “un-arrest” Awlaki despite the pendency of a valid felony warrant, he was a suspect – or, at the very least, a highly material witness – in the 9/11 conspiracy that resulted in the killing of nearly 3000 Americans. He went on to become one of al Qaeda’s most effective operatives. Awlaki is suspected of involvement in or incitement of the 2009 Fort Hood jihadist attack in which 13 U.S. soldiers were killed and many others wounded; the attempt to bomb a plane over Detroit on Christmas Day 2009; the attempted bombing of Times Square in 2010; and the modernization of al Qaeda’s international recruitment practices.

In 2011, he was finally killed as an enemy-combatant by an American drone strike in Yemen.

Fox News chief intelligence correspondent Catherine Herridge, who in 2012 broke the news about Awlaki’s mysterious un-arrest a decade earlier, has stayed on the case. So has Judicial Watch, thanks to whose FOIA lawsuit, the government has been compelled to turn over 900 pages of documents about its investigations of, and communications with, the jihadist. As Ms. Herridge’s new reporting elaborates, the FOIA disclosures show that Awlaki had numerous contacts with the FBI well into 2004 – when the 9/11 Commission was trying to locate him for an interview based on mounting evidence of his likely knowledge of, if not complicity in, the 9/11 conspiracy.

Consistent with our government’s seemingly incorrigible penchant to dismiss extremist Islamic incitement as harmless rhetoric, and to perceive Islamic supremacists as “moderate Islamists” with whom it can collaborate, law enforcement officials knew about Awlaki’s extensive contacts with some of the 9/11 suicide-hijackers but excused them as “random [and] the inevitable consequence of living in the small world of Islam in America.” Years later, law enforcement and military officials knew about but ignored startling jihadist communications between Awlaki and eventual Fort Hood killer Nidal Hasan.

The new information corroborates my suggestion here two years ago that, in letting Awlaki go rather than arresting him on the pending fraud charge, the government was “acting on the misguided hope of using him as an informant.” This is not only cause for potential embarrassment in its own right; it adds to the concerns over the circumstances of Awlaki’s death.

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The most famous of the classic blunders is “Never get involved in a land war in Asia”? I don’t think so. I’d go with Never get involved in a blame war with the CIA. And that goes especially for lame duck presidents saddled with plummeting approval ratings as they head into the last two years of their terms.

Fox News reports:

The top U.S. intelligence official, in a memo to staff obtained by Fox News, praised his analysts for their work bringing attention to the Islamic State’s gains over the past two years — as Republican lawmakers likewise jumped to their defense after President Obama claimed they “underestimated” the threat.

The president’s comments to “60 Minutes” over the weekend have prompted a vigorous round of finger-pointing. The White House has eased off, saying the president did not intend to blame the intelligence community — but also is disputing accusations from GOP lawmakers and intelligence officials that Obama simply ignored their ISIS warnings for months.

“It wasn’t for lack of information, we all knew about it for years,” Rep. Michele Bachmann, R-Minn., told Fox News on Wednesday. She claimed lawmakers on the House Intelligence Committee, on which she sits, “gave it to the administration and said, ‘wake up, there’s something very serious happening.’”

Director of National Intelligence James Clapper has been left in a difficult position, with Obama pointing at him in his “60 Minutes” interview. In the interview, Obama said Clapper “has acknowledged that I think they underestimated what had been taking place in Syria.”

But in the memo to staff sent Tuesday, Clapper made clear his officers have been on the case for a while.

“I’m proud of the [intelligence community's] efforts over the past two years to monitor, assess and call attention to the expansion of ISIL, and I know the president has found that work to be critical to developing his strategy,” Clapper wrote.

The report goes on to relate that Clapper’s assertions about how intel analysts have been calling attention to the Islamic State (aka ISIS, or ISIL) provide grist for media and congressional criticism that the Obama administration has failed to take the jihadist threat seriously enough. For one thing, Clapper did not appear to concur in President Obama’s claim that the intelligence community “underestimated” ISIS.

Naturally, Clapper’s explicit support of his subordinates also invites media attention on alternative explanations for the administration’s ineffectiveness — for example, the staggering number of national security intelligence briefings that President Obama has failed to attend, despite setting presidential records for rounds of golf and political fundraisers.

Slow Start for the Benghazi Select Committee

September 17th, 2014 - 11:47 am

Most prosecutors would be all over emergent evidence that culpable actors had obstructed justice. Yet the House Select Committee investigating the Benghazi Massacre under the direction of South Carolina Republican and former prosecutor Trey Gowdy is not exactly tripping over itself to probe such evidence – at least not publicly.

Earlier this week, a retired high-ranking State Department official publicly revealed that former Secretary Hillary Clinton’s top aides hid damaging documents from her hand-picked investigative panel. Subsequently, that panel, the vaunted “Accountability Review Board” (ARB), did not even bother to interview Mrs. Clinton despite her pivotal roles in (a) the appalling security lapses prior to the terrorist attack that killed Ambassador Christopher Stevens and three other Americans; (b) the administration’s response on the night of the attack; and (c) Obama officials’ fraudulent claim that the attack was caused by spontaneous reaction to an anti-Muslim video, rather than by entirely predictable jihadist terrorism.

Yet, as Chairman Gowdy’s select committee finally convenes its first hearing later today – four long months after being established, ostensibly to press urgently for truth and accountability regarding an act of war by al Qaeda affiliated terrorists on the second anniversary of the 9/11 attacks – obstruction of justice is not the focus. Nor are allegations leveled just two weeks ago by members of the Annex Security Team in Benghazi. In a new book, 13 Hours: The Inside Account of What Really Happened in Benghazi (profiled in a Fox News special and in this review by the American Spectator’s Ross Kaminski), three team members recount the official reluctance and indecision that delayed their response to the attack – a delay they believe cost the lives of Ambassador Stevens and Mr. Smith.

This morning’s hearing is likely to be the last word the public will hear from the select committee for many weeks, if not months, as Congress glides towards its midterm election recess. Gowdy is nonetheless giving Democrats – who initially threatened to boycott the committee – an opportunity to use it as a showcase for the Obama administration’s implementation the ARB recommendations.

The Chairman’s decision was popular at the hard Left Mother Jones, which pronounced this hearing “Actually Worth Having.” It is nonetheless a disappointment for those of us hoping the select committee would focus on real accountability: Why did our government change sides in Libya for the benefit of anti-American jihadists? What exactly was our government doing in Benghazi – what mission was worth assigning U.S. personnel to one of the most dangerous places in the world for Americans? Who is ultimately responsible for the appalling lack of security at the American compound? Where was President Obama, and what exactly was he doing, during the hours Americans were under siege? Why did the commander-in-chief and the military-chain-of-command take no meaningful action taken to respond to the attack? What role did election-eve politics – Obama’s repeated claims to have “decimated” al Qaeda – play in the administration’s misleading decision to portray the video, rather than al Qaeda-tied terrorists, as the culprit?

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