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    Volume VIII, Number 1,835  Thursday, May 1, 2008    ISRANET DAILY BRIEFING
A Service of CIJR
Canadian Institute for Jewish Research

Prof. Frederick Krantz, Director
P.O. Box 175, Station H
Montreal, Quebec H3G 2K7
E-Mail: cijradmin at isranet.org
Internet: http://www.isranet.org/

David B. Rivkin Jr. and Lee A. Casey
Wall Street Journal, April 25, 2008
     Lynching lawyers, as Shakespeare once suggested, has never appealed much to the legal profession itself—literally or figuratively. But an exception apparently will be made for a group of attorneys who advised President Bush and his national security staff in the aftermath of 9/11. They’ve been subject to an increasingly determined campaign of public obloquy by law professors, activist lawyers and pundits.
     Their legal competence and ethics have been questioned. Suggestions have even been made that they can and should be held criminally responsible for “war crimes,” because their legal advice supposedly led to detainee abuses at Abu Ghraib and elsewhere. The targets of this witch hunt include some of the country’s finest legal minds
     Many positions taken by these attorneys, laying the fundamental legal architecture of the war on terror, outrage international activists and legal specialists. Nevertheless, in a series of cases beginning with Hamdi v. Rumsfeld (2004), the U.S. Supreme Court has upheld many of their key positions: that the country is engaged in an armed conflict; that captured enemy combatants can be detained without criminal trial during these hostilities; and that (when the time comes) they may be punished through the military, rather than the civilian, justice system. 

     Most controversial, of course, was the Bush administration’s insistence that the Geneva Conventions have limited, if any, application to al Qaeda and its allies (who themselves reject the “Western” concepts behind those treaties); and the administration’s authorization of aggressive interrogation methods, including, in at least three cases, waterboarding or simulated drowning.
     Several legal memoranda, particularly 2002 and 2003 opinions written by [Prof. John] Yoo as deputy assistant attorney general for the Office of Legal Counsel, considered whether such methods can lawfully be used. These memoranda, some of which remain classified, explore the limits imposed on the United States by statute, treaties, and customary international law. The goal clearly was to find a legal means to give U.S. interrogators the maximum flexibility, while defining the point at which lawful interrogation ended and unlawful torture began. 
     Behind this inquiry is a stark fact. In this war on terror, the U.S. must not only attack and defeat enemy forces. It must also anticipate and prevent their deliberate attacks on its civilian population—al Qaeda’s preferred target. International law gives the civilian population an indisputable right to that protection.
     Lawyers can and do disagree over the administration’s conclusions. However, it’s now being claimed that the administration’s legal advisers can be held responsible for detainee abuses. This is madness. The lawyers were not in any chain of command, and had no theoretical or practical authority to direct the actions of anyone who engaged in abusive conduct. 

     For more than 40 years, as part of the post World War II decolonization process, a legal orthodoxy has arisen that supports limiting the ability of nations to use robust armed force against irregular or guerilla fighters. It has also attempted to privilege such guerillas with the rights traditionally reserved to sovereign states. The U.S. has always been skeptical of these notions, and at critical points has flatly refused to be bound by these new rules. Most especially, it refused to join the 1977 Protocol I Additional to the Geneva Conventions, involving the treatment of guerillas, from which many of the “norms” the U.S. has supposedly violated, are drawn.
     The Bush administration acted on this skepticism—insisting on the right of a sovereign nation to determine for itself what international law means. This is at bottom the sin for which its legal advisers will never be forgiven. To the extent they can be punished—or at least harassed—perhaps their successors in government office will be deterred from again challenging the prevailing view, even at the cost of the national interest. That is why these administration attorneys have become the particular subjects of attack.
  (David B. Rivkin Jr. and Lee A. Casey served in the Justice Department under
Presidents Reagan and George H.W. Bush, and were members of the UN
Subcommission on the Promotion and Protection of Human Rights from 2004-2007.)
Laurie Mylroie
New York Sun, April 23, 2008
     Andrew McCarthy prosecuted the blind Egyptian cleric, Sheik Omar Abdel Rahman, head of Egypt’s “Islamic Group,” in the wake of the 1993 World Trade Center bombing. “Willful Blindness: A Memoir of the Jihad” (Encounter, 250 pages, $25.95) engagingly recounts that experience, for Mr. McCarthy is a good writer. He was also a sharp, aggressive prosecutor, and his book authoritatively makes several important points, correcting misunderstandings about the case and highlighting issues that have received insufficient attention.
     To begin with, Al Qaeda was not, as many believe, involved in the February 1993 bombing, Mr. McCarthy reminds us, nor the subsequent “Landmarks Plot,” which targeted the United Nations, New York’s Federal Building, and two tunnels. Established in 1988, Al Qaeda was only in its infancy in 1993. 

     Egypt had a spy within Sheik Omar’s entourage—Abdo Haggag, a sympathetic neighbor who turned against Sheik Omar, and who came to see Sheik Omar as “a conniver” and “hypocrite,” petitioning for asylum in America even as he railed against it. (The sheik was also a womanizer, and Mr. Haggag resolved to expose him for it.) Mr. Haggag began reporting to Egypt’s U.N. mission, but American authorities did not know that initially, arresting and indicting him along with the others. The FBI had its own plant among the extremists—another Egyptian, Emad Salem—who also had ties to Egyptian intelligence. Mr. Salem’s work after the Trade Center bombing—gathering intelligence and acting as agent provocateur—led to the Landmarks Plot, planned in conjunction with two Sudanese intelligence agents. 

     In April 1993, Siddig Ali, a Sudanese émigré, told Mr. Salem he wanted to bomb two armories. “Seeing he had a live one,” the FBI’s Salem “egged him on.” Soon afterward, Ali said he wanted to bomb the United Nations instead, because “he had contacts in the Sudanese government mission who would help them obtain the credentials necessary to drive a vehicle laden with explosives into the complex.” The Sudanese agents introduced Ali to a Palestinian, Mohammed Saleh, with whom they also had close ties. Saleh owned a gas station in Yonkers and agreed to provide fuel for the bombs. The trial transcript also shows one agent discussing with Ali a target for possible attack, with Ali taking direction from the Sudanese official.
     “Willful Blindness” misrepresents a crucial exchange touching on just this point, leaving out key parts, although the entire discussion exists in court records. 

     The transcript strongly suggests that Sudanese intelligence was far more involved in the Landmarks Plot than Sheik Omar Abdel Rahman, who was presented by the prosecution as the central figure. In late May, Mr. Salem met privately with Sheik Omar, who suggested forcefully that Mr. Salem discard plans to attack the United Nations and focus instead on the American military. Mr. McCarthy describes Sheik Omar as “slick” and ambiguous in this exchange, suggesting that he did not rule out the possibility of targeting the U.N., and fails to report a subsequent exchange, captured on the same surveillance tape: As they drove home from Sheik Omar’s apartment, Salem related the sheik’s response to Ali, who understood clearly that the U.N. plan had been rejected, telling Mr. Salem, “No, I’m not going to do it.” Yet before the ride ended, Ali had decided to go forward anyhow, because, he said, “I have all the people in place from the embassy.”
     Despite the central involvement of Sudanese agents in the Landmarks Plot, they were not indicted. 
 [T]he Clinton administration would not likely have agreed to indict the agents and demand the Sudanese government produce them for trial; focusing attention on a hostile state would have risked stirring a public outcry for more serious action.
     Sheik Omar is a loathsome figure, but the case against him was weak. The FBI opposed indicting him and wanted to deport him. Mr. McCarthy devised a clever strategy in which several crimes were linked together in a conspiracy ostensibly carried out by the “Jihad Organization” of which Sheik Omar was said to be the leader
. Consequently, many people think Sheik Omar was involved in that attack. Yet as Judge Michael Mukasey, now Attorney General, affirmed of Sheik Omar and his co-defendants: “[T]hey’re not charged with committing the World Trade Center bombing.”
     Mr. McCarthy unwittingly illustrates how President Clinton’s policy of treating terrorism as a law enforcement issue caused it to be understood as one: If Mr. McCarthy had indicted the Sudanese intelligence agents, Americans would have understood Sudan’s role in the Landmarks Plot, and Sheik Omar would not occupy such a central role in our collective consciousness. 
 And, finally, we might have better understood the nature and scope of the terrorist threat, including the real possibility that it did not change with that bombing, as the Clinton administration claimed, but remained just what we had known it to be—state-supported violence. The misunderstanding left America vulnerable on September 11, 2001, and may yet leave this country vulnerable to another major assault.
  (Laurie Mylroie is an American Enterprise Institute adjunct fellow and author of
Study of Revenge: The First World Trade Center Attack and Saddam Hussein’s War Against America.)
Gabriel Schoenfeld
New York Post, March 6, 2008 
     Six-plus years after 9/11—the most devastating intelligence failure in US history—signs are rife that our intel bureaucracies still haven’t cleaned up their act.
     Post-9/11, Congress was quick to slice and dice the bureaucracies, creating a new Office of the Director of National Intelligence to preside over the CIA and the other 15 agencies that make up the “intelligence community.” But did the “reform” really change much? Consider the Nada Nadim Prouty case. 
     In the decade before 9/11, the CIA and FBI both discovered that Soviet agents had penetrated their highest ranks (Aldrich Ames at CIA, Robert Hanssen at FBI). Each supposedly redoubled its counterintelligence efforts to prevent future such catastrophes. 
     Yet late last year, the public learned that Prouty, a Lebanese immigrant with close ties to Hezbollah—and quite possibly an actual agent of that radical Shiite group—had managed to get a string of sensitive jobs at FBI and at CIA. The “beefed-up” post-Ames/Hanssen background checks had utterly missed the false marriage that enabled her to enter the United States and the prominently pro-Hezbollah leanings of her family back home. Our intel agencies desperately need Arabic speakers to have any chance of doing their job in the War on Terror. Yet the hiring pool will be impossibly small if they can’t properly vet people who grew up speaking the language. 
     Even more disturbing are the clear signs of politicized analysis. The CIA can scoop up all the most secret data in the world and still be a total failure if it can’t make sense of what it has learned—or if its findings get presented to policymakers in a form distorted by political bias. That was plainly the case with the recent National Intelligence Estimate on Iran’s bid to build the bomb—a report that sharply undercut the Bush administration’s policies. 
     In its opening sentence, the declassified summary of the NIE declared that the ayatollahs had halted their nuclear-weapons program five years ago. Yet the same document recorded, buried in a footnote, that the single most important element of Iran’s nuclear-bomb program - the enrichment of uranium—has continued unabated. 
     Experts across the political spectrum, from conservatives like Henry Kissinger to the liberals at the Bulletin of the Atomic Scientists, agree that the NIE was flawed. Director of National Intelligence Mike McConnell basically disavowed it last month, telling Congress the public version should have been written differently. 
 The apparent goal of the report’s authors was to take off the table any chance of a US strike on Iran. In other words, it’s plain that elements of the intelligence community, dissatisfied with President Bush’s policies, pulled off a political coup. 
     Of course, analysts are supposed to be nonpolitical. Yet ranking intelligence officials plainly are not. 

     How can the Bush administration remain passive in the face of the intelligence community’s mounting deficiencies? This, too, is nothing new. The president kept CIA Director George Tenet in place for years after the agency’s 9/11 failure—and even after Tenet’s “slam-dunk” judgment that Saddam Hussein was still pursuing weapons of mass destruction. He even awarded him America’s highest civilian commendation, the Presidential Medal of Freedom. 
     It’s plain the current administration won’t confront the problem. Will whoever is elected in November also shrink from this cardinal responsibility?
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