The 'Public Safety' Follies
Distinguished members of the bar, right and left, cast brickbats my way for labeling as the “Gitmo Bar” their friends – other distinguished members of our self-congratulatory profession –who volunteered their services in order to file lawsuits against the American people on behalf of our jihadist enemies in wartime. Later, when President Obama came to office, the same sort of caterwauling occurred in response to what I thought was the commonsense point that we oughtn’t want counterterrorism policy to be made by members of the Lawyer Left who had volunteered to work for the enemy and had labored assiduously to erode the law-of-war approach to counterterrorism (i.e., the Bush approach) – such lawyers having by then been recruited to serve in top policymaking posts in the Justice Department and throughout the Obama administration.
We have been seeing the wages of government-by-Gitmo Bar for over four years now, but maybe never as starkly as in the last few days.
It has now been reported by Fox’s Megyn Kelly that the FBI’s interrogation of accused Boston Marathon bomber Dzhokhar Tsarnaev was short-circuited when the Justice Department arranged for him to be given a presentment hearing in the hospital.
In point of fact, it was not the hearing that caused the suspension of vital intelligence-gathering. It was the Obama Justice Department’s decision over the weekend immediately to file a criminal charge against Tsarnaev. Once that was done, the presentment hearing was inevitable. It is required by Rule 5 of the federal rules of criminal procedure. An arrested person must be brought before the nearest available magistrate. The purpose of the proceeding is to get him out of the clutches of law enforcement, have a neutral judicial officer advise him of what he’s been charged with, make certain that he has counsel assigned, and – most significantly – ensure that he knows he is under no obligation to make statements to the police and that, if he has already made some statements, he may stop.
From a national security standpoint, there was no good reason to file a criminal charge so soon and thus trigger procedures that, as everyone involved in the decision well knew, would stop the interrogation. The only reason to do it is political: The Obama administration is philosophically hostile to the law-of-war counterterrorism paradigm. It is determined to regard every terrorist as a criminal defendant rather than an enemy combatant – even if there may be evidence connecting the detained terrorist to our wartime enemies and thus justifying, at least temporarily, an enemy-combatant designation that would allow interrogation to continue for intelligence purposes.