September 10? It’s Worse Than That [McCARTHY (prosecuter of the "Blind Sheik") LAYS DOWN THE LAW]

From Andrew McCarthy, the National Review journalist and attorney who led the team that convicted Omar Abdel Rahman, the “Blind Sheikh.” "In essence, we prosecuted him for inciting terrorism"

The word incomprehensible does not do justice to the FBI’s conclusion that jihadist saboteur Nidal Hasan’s numerous communications with jihadist imam Anwar al-Awlaki were either (a) not significant enough to warrant further investigation or (b) significant but immune from further investigation on First Amendment grounds.

The first possibility would not pass the laugh test if this were a laughing matter. Anonymous government officials have suggested that the substance of the conversations was innocuous. That remains to be seen — we can’t know until we learn exactly what was said, how it was acted on, who else may have been in the loop, and so on.

But even if you buy the innocent-substance theory (I don’t), the occurrence of the communications — between an Islamist infiltrator in our armed forces and a known al-Qaeda recruiter who ministered to some of the 9/11 hijackers — could not be more significant. The mere circumstances were more than enough to turn up the investigative heat.

That’s so palpable that we must worry that about the second possibility: That the FBI and the Justice Department have convinced themselves that the Constitution really is a suicide pact — that a mainstream construction of Islam, calling for our demise as a free people, is somehow insulated from inquiry because we don’t want to confront the stubborn fact that Islamist terror is instigated by Islamic doctrine.

Journalism in the last week has been a feast of fables about Islam, libels about military culture, and gut-wrenching accounts of sorrow and heroism. But the most disturbing thing I’ve read is Ron Kessler’s Newsmax column. It addressed little not already known about the mass murder, but Ron has singularly good sources in the FBI. He provides a window into Bureau thinking that makes the mind reel.

Besides grossly low-balling the number of U.S. mosques that propagate Islamist ideology — the Feebs say it’s about 10 percent of 2,000 mosques; it’s actually about six to eight times that amount — a top FBI counterterrorism official told Kessler:

"Those who actively support extremist causes, say America is evil and deserves what it gets, and celebrate the death of soldiers, know they may come to our attention. So they don’t do it as openly now . . . . There was much more of that [before 9/11] because all of it was considered by Justice Department guidelines to be purely protected speech. We do not have incitement laws in America, but once an imam facilitates someone else taking action, he has crossed the line into material support and becomes our business."

Where to begin? Almost 17 years ago, after the Trade Center was bombed, the Justice Department did not believe a Muslim cleric had to “cross the line into material support” before he became the FBI’s business. Indeed, there were no “material support” laws until 1996. In 1995, as detailed in Willful Blindness, I led the team that convicted Omar Abdel Rahman, the “Blind Sheikh.” In essence, we prosecuted him for inciting terrorism — the thing the senior official tells Kessler isn’t a crime.

Specifically, the Blind Sheikh was convicted of (among other things) soliciting an attack against a U.S. military installation (like Hasan just committed) and soliciting the murder of Egyptian president Hosni Mubarak.

Solicitation is still a federal crime — and there’s no requirement that the incitement actually lead to a terrorist act.

Moreover, even before anyone in America ever heard of al-Qaeda — even before there was a 9/11, or bombings of Khobar Towers, the U.S. embassies in eastern Africa, and the U.S.S. Cole — some of us realized that terrorists fueled by viscerally anti-American Islamist ideology, were at war with the United States. And guess what? There’s a statute for that, too: The Civil War–era seditious-conspiracy law makes the waging of such a terror campaign a 20-year felony. And there’s no carve-out for imams.

How was the Blind Sheikh convicted? By presenting to the jury his fiery sermons and private meetings with the faithful, often in mosques where he urged barbarous strikes against America, swaddled in accurate quotations of the Koran and other Muslim scripture. Of course, he claimed that such exhortations were protected speech. That is, he made exactly the same arguments the Islamist Left has spent the last eight years beating into the country, including into the Justice Department and the FBI. But back in 1995, those arguments were seen for the nonsense that they were.

There is no bar to the use of speech as evidence. The First Amendment generally prohibits the criminalization of speech itself — i.e., the act of communicating. But settled law holds that when prosecutors use your speech to prove crimes, there is no First Amendment violation. When the mafia boss tells the button-man “Whack him!” he doesn't get to lodge a First Amendment objection to the introduction of that statement at his murder trial. He’s not being tried for saying “Whack him!” He’s being tried for murder. The statement is evidence.

Nor does the principle change just because the speech happens to implicate religion. In America, you can believe whatever you want, but your actions must be lawful. Not surprisingly, the Blind Sheikh contended that his incitements to terror were beyond prosecution because he was practicing his religion: Specifically, he claimed he had simply been performing the traditional role of an Islamic cleric called on to determine whether proposed courses of conduct (in this instance, mass-murder plots) were permissible under Islamic law.

Fourteen years ago, that contention was properly seen as frivolous. In America, we are not under sharia law — not yet. There is no religious exception for violent acts, conspiracies, and incitements to violence that violate American law.

So what has happened? Why did we know these rudimentary, commonsense principles in the Nineties but not now? Because incitement explodes the government’s “religion of peace” narrative. The incitement to Islamist terror is Islamic scripture. The Blind Shiekh was not a hypnotist or a particularly compelling speaker. His authority over terrorist organizations was rooted exclusively in his acknowledged mastery of sharia. Islamic scripture was the source of his power over Muslims.

To concede this would be to concede the obvious but unspeakable fact that there is a nexus between Islam and terror. That would harpoon the lovey-dovey dream that Islam and Western democracy are perfectly compatible. It would upset Muslims — especially the well-organized, deep-pocketed Islamic grievance industry.

Today’s hip, progressive FBI, like Gen. George Casey’s modern, slavishly “diverse” military, doesn’t want to upset Muslims. Besides souring State Department cocktail parties and drying up funding for presidential libraries, upsetting Muslims would put a damper on our government’s lavish “Islamic outreach” efforts. These initiatives are premised on the delusion that we’ll stop more terror by having unindicted co-conspirators like CAIR teach Islamic “sensitivity” to our agents than by turning our agents loose to investigate CAIR and its ilk.

So the FBI ignores the significance of a terrorist cleric’s influence over an unabashed Islamist in our midst. After all, their contacts seemed to be religious in nature. We’re told, moreover, that we can’t do anything about the anti-American vitriol oozing out of Islamist mosques under the guidance of our friends the Saudis. After all, the vitriol hasn’t yet “crossed the line into material support.” By the time it does, you might have 13 corpses to tend to, but at least there will be lots to talk about at the next outreach conference — or the next time the attorney general decides to speak at a CAIR-fest.

The post-9/11 era was supposed to be about knocking down walls that obstructed effective counterterrorism. But behold the new wall, more insidious than its suicidal Nineties forerunner: the arbitrary barrier separating terrorism from “protected” incitement — the cagey, generalized, non-specific jihadist rhetoric that is the Islamist cleric’s stock-in-trade.

Aside from not being required by law, this new wall will usually mean you can't go after the worst actors (the Islamic authorities and the terrorists they inspire) until after an attack has happened and Americans have been killed.

In other words, be prepared for more Fort Hoods. We’re not in September 10 America. We’ve managed to land in a much more dangerous place.

More from McCarthy on our "Government" and the LAW.

The decision to bring Khalid Sheikh Mohammed and four other top al-Qaeda terrorists to New York City for a civilian trial is one of the most irresponsible ever made by a presidential administration. That it is motivated by politics could not be more obvious. That it spells unprecedented danger for our security will soon become obvious.

The five 9/11 plotters were originally charged in a military commission. Military commissions have been approved by Congress and the courts. Eleven months ago, the jihadists were prepared to end the military case by pleading guilty and proceeding to execution.

(snip)

That is, Pres. Barack Obama and Attorney General Eric Holder, experienced litigators, fully realize that in civilian court, the Qaeda quintet can and will demand discovery of mountains of government intelligence.

They will demand disclosures about investigative tactics; the methods and sources by which intelligence has been obtained; the witnesses from the intelligence community, the military, and law enforcement who interrogated witnesses, conducted searches, secretly intercepted enemy communications, and employed other investigative techniques. They will attempt to compel testimony from officials who formulated U.S. counterterrorism strategy, in addition to U.S. and foreign intelligence officers.

As civilian “defendants,” these war criminals will put Bush-era counterterrorism tactics under the brightest public spotlight in American legal history.

This is exactly what President Obama and Attorney General Eric Holder know will happen. And because it is unnecessary to have this civilian trial at all, one must conclude that this is exactly what Obama and Holder want to see happen.

(snip)

Attorney General Holder has anxiously shoveled into the public domain classified information relating to those policies — with the administration always at pains to claim that its hand is being forced by court orders, even though the president has had legal grounds, which he has refrained from invoking, to decline to make those disclosures.

Moreover, during a trip to Germany in April, Holder signaled his openness to turning over evidence that would assist European investigations — including one underway in Spain — that seek to charge Bush-administration officials with war crimes (which is the transnational Left’s label for actions taken in defense of the United States).

Now, we see the reckoning: Obama’s gratuitous transfer of alien war criminals from a military court, where they were on the verge of ending the proceedings, to the civilian justice system, where they will be given the same rights and privileges as the American citizens they are pledged to kill.

This will give the hard Left its promised feast. Its shock troops, such as the Center for Constitutional Rights, will gather up each new disclosure and add it to the purported war-crimes case they are urging foreign courts to bring against President Bush, his subordinates, and U.S. intelligence agents.

(snip)

By moving the case to civilian court, the president and his attorney general have laid the groundwork for an unprecedented surrender of our national-defense secrets directly to our most committed enemies.

The five jihadists in question are alien enemy combatants currently detained outside the United States. They are not Americans and are not entitled to the protection of our Bill of Rights. That means that in a military-commission trial, they would be given only those rights Congress chose to give them.

National Review

~~~~~~~~~

From military court (prior to which terrorists had already acknowledged their guilt and were preparing for execution)....to YEARS of civil court....to international court, where we will see our American protectors on trial.

McCarthy is too kind. He only ascribes political motivations for Obama and Holder to up end our laws and mechanics for swift prosecution of war criminals who have already confessed to their crimes.

Could there be other reasons Holder and Obama are so willing to betray the country they serve and to which they have sworn allegiance?

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