Justice and the Obama DOJ – Part 2

Justice and the Obama DOJ – Part 2

When it comes to defending against terrorism, one would think that the role of the Justice Department would be relatively limited compared to that of the military and of our intelligence gathering agencies. But for six years the DOJ has played an outsized and unhelpful role. This results, in part, from a policy set by the current administration of viewing terrorism as it was viewed before 9/11—as a crime to be prosecuted rather than an act of war to be combatted.

This administration is also unwilling to draw any connection between radical Islam and terrorism. Just in the last few days, it has been reported that officials are trying to determine a motive for the conduct of Mohammad Youssuf Abdulazeez, who is accused of killing five U.S. servicemen in Chattanooga. He had travelled to Jordan and posted admiring statements about ISIS on his web page, and yet officials are puzzling over why he acted as he did. The DOJ refuses to use the word terrorism in relation to this investigation.

A man named Ali Muhammad Brown is charged with three counts of murder in Seattle, allegedly motivated by his desire to avenge attacks on Muslims by our troops in Iraq and Afghanistan. He has also been prosecuted in the state courts of New Jersey on state terrorism charges—the first time such charges have ever been filed in New Jersey’s history. The charges there are based on a fourth murder that he committed—the murder of a teenager named Brendan Tevlin that had the same motivation as the Seattle murders. The maximum for this crime under the New Jersey statute is life imprisonment, whereas the federal statute carries the death penalty. But the Justice Department has declined to bring this prosecution. It’s utterly beyond understanding why the DOJ would yield to a state charge with a lesser penalty—unless, of course, one realizes that it would simply prefer not to discuss the matter.

This aversion goes further, and it has further effect. In 2009, Khalid Sheik Muhammad and others were to be tried before a military commission at Guantanamo for their roles in the 9/11 attacks. The defendants had announced their intention to plead guilty and proceed to martyrdom. Notwithstanding that these detainees were in the custody of the military and the Department of Defense, the Attorney General, with the President’s cooperation, suspended the trials and announced in 2010 that he would bring those defendants to Manhattan, near where the World Trade Center attack had occurred, to stand trial in a civilian court.

This plan caused a bipartisan furor. Congress went so far as to pass a statute barring the use of any federal funds to bring detainees from Guantanamo to the U.S. As a result, the plan was cancelled in 2011. But by that time the military commission had been aborted and the prosecution had to be recommenced from scratch. In addition, Khalid Sheik Muhammad and his friends got the message that the new administration’s heart wasn’t in it. They took to resisting every step in the process, which is still in the pre-trial stage.

Also in 2009, the Attorney General, following up on his stated belief that the CIA had violated the torture statute in the interrogation of captured terrorists, publicly disclosed what had been classified memos describing the CIA’s interrogation program—a program that had not been in use since 2003. He presumably released those memos in the belief that disclosure would bring on a firestorm of criticism. The effect was to disclose to potential terrorists what was in the program so they could train to resist it, just as they train using the publicly available Army Field Manual in order to resist interrogations described in it. When the hoped-for firestorm failed to develop, the Attorney General announced that even though prior investigations of CIA conduct by career DOJ prosecutors had concluded that there was not enough evidence to justify criminal prosecution, he was going to re-open those cases. He did so without bothering to read the detailed memos by those previous prosecutors explaining why no criminal charges were warranted. You can imagine the effect on the morale of the CIA.

The re-opened investigations yielded no criminal charges, and the result was announced two years later as part of a news dump on a Friday afternoon. We currently have no interrogation program in place beyond the Army Field Manual, and in any case current policy seems to favor prosecution over capturing terrorists abroad for interrogation. This is due in part to the efforts of the DOJ, and our ability to gather intelligence is correspondingly limited.

Defenders of current policy trumpet electronic intelligence. But electronic intelligence comes in bits and pieces, and it’s very difficult to know which bits and pieces are relevant and which are simply noise. As former CIA Director Michael Hayden once put it, it’s kind of like trying to solve a jigsaw puzzle when you have thousands of pieces, you don’t know which ones are part of the puzzle, and you haven’t been able to look at the picture on the box. Human intelligence, by contrast, comes in narrative form—which is to say you get to look at the picture.

The Obama administration also supported the recent restriction that was put on bulk intelligence gathering by the CIA, in the mistaken belief that such a policy compromised Americans’ privacy. In point of fact, the only information gathered was the calling number, the called number, the length of the call, and its date. That information was saved, and when we got a suspicious telephone number—for example, the number of the Chattanooga terrorist—we could take it and figure out which numbers had called that number and which numbers had been called by it. As a result of the recent restriction, we are not going to have that information anymore. It is going to be kept by the carriers, if they agree to keep it.

Are there any bright spots in the Justice Department? The National Security Division, which handles oversight of electronic intelligence on applications to the Foreign Intelligence Surveillance Court, is the newest division in the department. Formed in 2006, it is staffed by people who are dedicated to protecting the country, and it continues to function very well insofar as the legislation that is now in place allows it to function. Otherwise, there is very little good to report.

How did we get to where we are today? Even before the 2008 election, the warning signs were there. The man who was to become U.S. Attorney General told an audience during the election campaign that the Bush administration had permitted abuses in fighting terrorism. He said there would have to be “a reckoning.” During his subsequent tenure, in a moment of unguarded candor, he described himself as the President’s “wingman.” From the standpoint of the Justice Department, I can’t overstate the demoralizing significance of an attorney general saying something like that. If I had ever described myself, during my tenure, as President Bush’s wingman, I would have expected to come back to find the Justice Department building empty and a pile of resignations on my desk. Even Attorney General Robert Kennedy, President Kennedy’s brother, to my knowledge never described himself in such terms. Yes, the attorney general is a member of the administration—but his principal responsibility is to provide neutral advice on what the law requires, not to fly in political formation.

The problems in the DOJ won’t be solved simply by electing a less ideological president in 2016. Many of the political appointees of the past seven years will resign and take up career positions within the department, and once such people receive civil service status, it is virtually impossible to fire them. In other words, the next attorney general will be confronted with a department that’s prepared to resist policy changes. This will require great patience and dedication by the new political appointees in their efforts to return the department to its true mandate—not doing justice according to your own lights, or even according to the lights of the president who appoints you, but defending law and having enough faith in law to believe that the result, more often than not, will be justice.

Reprinted by permission from Imprimis, a publication of Hillsdale College.