The Legal Approach to Fighting the War on Terror

 

 A Legal Approach [60:06m]: Play Now | Play in Popup

Western Word Radio Interview with
Andrew McCarthy, Author of “Willful Blindness”
11 am Wednesday March 11, 2009

Synopsis

In this interview Avi Davis and author and attorney Andrew McCarthy discuss the legal measures which have been adopted to either aid or obstruct the war on terror. The interview ranges over subjects such as the robustness of the legal system in addressing terrorist depredations;  the likely impact of bringing  perpetrators of terrorism within the criminal justice system and the ongoing conflict between the protection of civil rights and the maintenance of national security.

Avi Davis: This is Avi Davis and welcome to Western Word Radio where we discuss issues relevant to the defense and protection of Western values and ideals.

Introduction

In the past eight years, since the attacks on the World Trade Center in New York City, which resulted in the loss of over 3,000 American lives, our public debate has been engrossed with the subject of national security.  Over these years, our government has passed a number of legislative acts and ushered in security practices and procedures which have sparked furious debates about the nature of terrorism and its preventative measures.

Today we are fortunate indeed to have with us someone who has stood on the front line of that debate and has the battle scars to prove it. Andrew McCarthy is a former Federal prosecutor and the author of “Willful Blindness: A Memoir of Jihad.”  Mr. McCarthy led the historic prosecution against the Jihad organization that carried out the original World Trade Center attack in 1993 – the Battalions of Islam, inspired by Omar Abdel Rahman, the notorious “Blind Sheik.” In “Willful Blindness,” he unfolds the troubled history of modern American counter-terrorism. It is a portrait of stark contrasts. A zealous, international network of warriors dead certain that history and God are on their side, pitted against a legal system – an investigative body unsure of what it knows, of what it fights or whether it has the will to win.   Mr. McCarthy, welcome.

Andrew McCarthy: Avi, it’s great to be with you. Thank you for having me.

Avi Davis: It’s really a  pleasure. It’s long been my contention that the most significant public debate in the 21^st century will be over, and is over, the tension between the right to privacy and individual rights on one hand, and national security on the other. Would you agree with that assessment?

Evil Deeds  and the Ideologies that Motivates Them

Andrew McCarthy: I think that’s certainly one of the major issues that we have to deal with, and it’s certainly something that we have dealt with in fits and starts for the last almost twenty years now. I think perhaps even a deeper issue that we have to resolve which is really mind boggling that we haven’t resolved it after all this time in terms of our approach, is whether you can separate out evil deeds and the ideology that motivates them. And that seems to have been our operating assumption. And I contend, as you know in the book, that those two things are not severable. Yet I think our policy has been built, certainly for the last fifteen or sixteen years, on the false assumption that if we just concern ourselves with people who carry out atrocities, we needn’t be bothered with the things, with the ideology, that motivates them.

Avi Davis: Well, your book reads like one long parable about what the United States should not be doing in confronting the threats posed by radical Islam. Given your own experiences in the 1990s and the failure to prevent certain threats that we knew would occur, how do you think we can better prepare for the future?

How Do We Prepare for Future Attacks?

Andrew McCarthy: Well I think that, number one, you have to have a proper mindset about what the threat is that you’re dealing with. You can’t, as we did in the 1990s, basically decide that a national security challenge is, in fact, a legal problem. It has legal aspects to it, but it is not principally a legal challenge. And if you try to treat it as if it were, if you try to put terrorism in the same sort of box as you treat ordinary crime, like drug trafficking or even fraud cases, you are bound, I think to suffer a great deal of both threats and vulnerabilities and actual atrocities. Because what you’re essentially doing is trying to take the assumptions that exist in the criminal justice system- in which we presume people innocent, we arm them with a variety of presumptions and rights against the government – and you are trying to basically take that paradigm and impose it on a national security challenge that stems from an international threat. And in which we can’t hope that government loses like government loses like we do in the criminal justice system when we frequently say we’d rather see the guilty go free rather than see a single innocent person be deprived of his rights wrongfully. In a national security challenge, it’s simply irrational to go about your business with that mindset. You actually have to be in a war-footing type mindset that tells you that the imperative is for government to win. And this a very basic assumption that we have yet, I think, to get right. But the fact of the matter is, in the criminal justice system . . . let me just start out by saying one thing you can never do is repeal error. The thought that there is not going to be human error and there are not going to be injustices is just a fatuous assumption. It’s something we can’t rule out. So recognizing that you’re always going to have error and you’re always going to have some injustice, the question is who bears the risk of that?

Government Bears Risk of Error

In the criminal justice system we take the position, and it’s the position we must take and should take, that the government bears all the risk of error. And when the life of the body politic is not at stake, and when there are not profound threats to the body politic, that’s a position that you can afford to take. But when you’re dealing with a national security challenge, regrettably the risk of error has to be on the people who government comes into contact with. Most of whom, in a hostile situation, are going to be the people who we’re fighting against, but you are going to occasionally have injustices. You’re going to sweep with too broad a brush, occasionally arrest and apprehend the wrong people, etc. But if you are in a mindset of war-footing, the fact is that in those instances, as horrible and unjust as this seems, we have to give government the benefit of the doubt as least as long as the threat continues.

Avi: Well, it’s very interesting you mention war-footing because I recently finished  reading book, titled Savage Peace which is all about the Wilson Administration’s attempts to basically shut down civil liberties in support of the war. And what occurred in 1917-18 was far more damaging to civil liberties than anything that has happened, I think, since then.

Civil Liberties Stronger Than at Any Time in History

Andrew McCarthy: Yeah, you make a great point. I have a lot of respect for many of the civil libertarians, particularly the authentic libertarians. Not so much the people who are using civil liberties as a cover for an anti-American agenda. But what I frequently find myself saying to our civil libertarian friends, particularly given the really deep and sometimes vicious nature of the debate that we have had since 9/11 about the national security measures that were adopted to try to prevent terrorism is that, if you take a step back and look at the trajectory of history, what you find is that the civil liberties debates that we’re having now . . . we’re in a far better place as far as civil liberties is concerned than we have been in throughout the history of the United States. And I go back not only to the Wilson Administration, but frankly you could go back the Alien and Sedition Acts of 1798. The Sedition Acts were repealed, but the Alien Acts are actually still on the books. But if you go through what we faced and what we as a government did at the end of the 18^th century, when people were actually prosecuted for criticizing the president and criticizing the government – you think about the measures that were taken under the emergency conditions that existed during the Civil War – the Wilson period that you talk about, the Red scare, some of the things that happened in the Watergate and Vietnam era, if you think about some of the government abuses that occurred during those particular epochs in our history, what we’re arguing about right now is really small potatoes. It’s very solicitous of civil liberties, and you would think that that would make civil libertarians happy and satisfied. And instead I think they’ve taken what were responsible measures that had to be taken if we’re going to prevent terrorist acts from occurring, rather than contenting ourselves with prosecuting after people have died. They’ve taken those sensible measures and I think really treated them in a hyperbolic way, telling people that the Constitution was being shredded and that civil rights were being destroyed. When if we just look around ourselves, we obviously know that this is a very good time for freedom in not only American history, but in human history.

Avi Davis: Well, looking back at history, the acceptability of certain measures depends on the consciousness of the people – of the American people – and their willingness to abide the restrictions of certain liberties. During the  First World War and  Second World War, there were obvious threats; we had an external enemy. Do you believe that there is a consciousness that there is a war on terror that Americans feel they are involved with in on a day to day basis?

Public Recognition of the Threat

Andrew McCarthy: No, I don’t. I think that there was for a very brief period of time after the 9/11 attacks, but a couple of things happened in the wake of that which I think has really put people back to sleep. One of them is actually a blessing. And that’s that we really did take some sensible measures. We changed our enforcement paradigm so that we were no longer in a prosecution mode. We no longer regarded this as just strictly a law enforcement problem. And as a result, we had a robust governmental response including a military response that killed or captured hundreds of people who were a great threat to the United States and to the West. And as a result, we haven’t had a repetition of 9/11 even though we know, based on some reliable intelligence, that the other side is certainly trying. That’s been a very good development. But I think, unfortunately, the down side of it is you get undone by your own success, in a way, when you go awhile without having an attack. I think what people tend to say is, maybe the threat wasn’t as serious as we thought it was in the first place. And they start to think that these measures that we’ve taken are overly intrusive when it may in fact be, and I think it is the case, that those measures are what has kept us safe over this period of time. So I think that’s one phenomenon. The second one is that I think there was a conscious effort on the part of government both to minimize the importance of the hate ideology and the prevalence of it that fuels the terrorism that we’re dealing with. And there was in some ways an admirable effort to say that if we don’t go back to life as we knew it before 9/11 – if we don’t conduct ourselves in the ordinary way – that the terrorists win. You know, the sense that the purpose of terrorism is to terrorize and, if we act as if we have been terrorized, we’re actually giving our enemies a leg up. You can understand the admirable thought process around that, but I think seven years, eight years hence, what we’re seeing is the threat to us is just as real as it ever was. In fact, in many ways its more perilous, because as time and technology go on, it takes fewer and fewer people to project more power. And yet as we get more removed from that awful day, what I think we’re finding is that we are minimizing what the threat to us is, and almost resentful of the measures that have kept us safe.

Avi Davis: Let’s talk a little bit about the federal justice system in dealing with the terrorist menace. I drew a quote from your book. “Hostile foreign operatives acting from without are not vested with rights under the American Constitution, and charting those foreign operatives as if they were full-fledged American citizens can have disastrous consequences.” What are those consequences?

Constitutional Rights Given to Terrorists

Andrew McCarthy: Well I guess I should point out as a preliminary matter that that was true when I wrote it, but I don’t know that it’s true any longer. The court of course, last term in 2008, held that the alien enemy combatants who were detained at Guantanamo Bay in Cuba now have American constitutional rights at least to habeas corpus, which is the ability to have your detention reviewed by an American court. How cataclysmic that decision is has yet to be flushed out. We don’t know, for example, does it apply outside Guantanamo Bay or is it limited to the unique circumstances of that set of detention?. We also don’t know whether it extends to other constitutional rights beyond habeas corpus. So we’re now going to see, as this plays itself out, exactly how many constitutional rights these folks are vested with. Notwithstanding that when I wrote what I wrote in 2004 it was in fact true. They did not have rights under the federal constitution. The reason I said it was so damaging was because a trial, especially under the due process standards that now are regnant in the United States, is an intelligence trove for the people who you prosecute. In most criminal circumstances we don’t worry about that. We’re not worried that people who engage in insider trading of financial instruments or people who commit massive fraud, or even violent conspiracies like a Mafia group or an international narcotics organization, we’re not worried that those outfits, those schemes, those conspiracies, are actually going to be a threat to the national security of the United States. Indeed, most crime is actually motivated by greed, at least at the level we’re talking about. And what that means is that criminals almost have a vested interest in the system continuing to exist as it exists so they can profit off it. They are pretty much, in that sense, the antithesis of terrorists who are actually trying to take the system down. So the problem that you have in terrorism prosecution is, if you have to conduct them under the due process rules that apply in ordinary trials, you have to turn over to the enemy even as the war goes on, even as the enemy is trying to kill Americans, a vast amount of the information that we know about the enemy and its methods. And also, you can’t turn over that kind of information without giving them a very strong sense, and sometimes even actually identifying the sources that we have for learning that information and the methods that we use to gather the information. So you’re basically turning over to them, even as the war ensues, not only our intelligence files of what we know but how we know it. And many times our methods and sources of intelligence are far more important to keep secret because they’re what keeps people alive – they’re the things that allow us to thwart attacks – many times it’s much more important and as a national security measure, as a public safety measure, as a societal measure, to keep that information secret rather than use it at a trial even if you think that you’re dealing with a very important defendant who needs to be, as they say, brought to justice.

Avi Davis: Now of course you know, amongst most terrorists the idea of a trial and of civil rights and constitutional rights is ludicrous. To them, isn’t it a portrayal of weakness? You actually say something here that I thought very interesting:  “Nothing galvanizes an opposition, nothing spurs its recruiting but the combination of successful attacks and the conceit that the adversary will act weakly.” One thing that I have also constantly stated is that we are not only fighting a military battle, that we are also fighting a psychological battle. That terrorists gain an advantage, a psychological advantage, when they feel that their actions are being treated through our systems of justice which they just laugh at. What do you think of that?

Is It a Sign of Strength to Give Terrorists Civil Rights?

Andrew McCarthy: Well, I think that’s right and I also think that a regrettable part of what our response to this challenge has been to lapse into a political correctness and tropes that we would wish to be true but which frankly are not true. The main one that was dominant when I was prosecuting terrorism cases in the 90s was that it was a sign of strength to bring even people who were bent on destroying our system into that system, accord them the full flower of due process that anyone would get in the system, and convict them there. And thereby show the world that we were different from the terrorists, and that we would accord them a degree of dignity that was equivalent even to what American citizens’ get in the criminal justice system, even though they had conducted themselves as barbarians. Now that’s a wonderful way to look at the world. And if only it were true! But in point of fact, the people who were trying to kill us and the people who sympathize with them are not very impressed, or I should say impressed at all, by the fact that we bring them into our system and accord them a lush amount of due process. They simply aren’t. And the reason that this is not only weakness but provocative weakness, is when you get down to brass tacks, when you stop these tropes about how wonderful it is to bring people into the due process of the criminal justice system and actually have to apply the due process of the criminal justice system, what you find is that it’s very limited in its ability to bring to heel the people who you have to bring to heel if you’re going to quell this threat. I frequently cite to people the fact that, in the eight years between the time the World Trade Center was first bombed in February 1993 and the time the complex was destroyed in 2001, even though all the intelligence estimates tell us that the enemy that we were confronting was growing bigger and bolder and attacking Americans and American interests about once a year over that eight year period, we managed during that time to take out exactly twenty-nine terrorists by way of prosecution. This is the period of time when the criminal justice system is what they called the point of the counter-terrorism spear. In many ways it was the whole spear. But if you have a motivated enemy, and a particularly a motivated enemy that has convinced itself that in Afghanistan it has already defeated one super power, and they continue to attack you with relative impunity – whether it’s the World Trade Center, the effort to bomb jumbo jets out of the sky over the Pacific, the attack on Khobar Towers in Saudi Arabia where we lost nineteen members of our Air Force, the embassy bombings in 1998 where over 200 people were killed, the near sinking of the destroyer, the USS Cole, in which seventeen members of our Navy were killed, and finally 9/11 –  this is an outfit that figures they’ve already taken out what they regarded as the more ruthless and difficult super power and they have gone to work on trying to take us out. And if they conduct all these attacks and kill all these people and our response is to prosecute in the courts only twenty-nine people, and for the most part the lowest hanging fruit, the lowest level of competence terrorists that you can imagine – the most easily replaceable ones – that is a provocatively weak response. It’s something that conveys to them that if they are ruthless enough and they make it bloody enough they can win. I must say, one thing I don’t think we’ve done a good job on is conveying to people not only what this ideology is, but how deeply its held by the people who are fighting us. They actually really believe that they are going to win. And when they take out the Soviet Union, or when the tallest skyscrapers in the world – the World Trade Center complex – is now and continues to be a big hole in the ground in lower Manhattan, that steels them in the conclusion that if they hang in there long enough and if they fight hard enough, they can win.

Avi Davis: Well there is an irony here and almost a perversion that they are being portrayed in the now liberal media and perceived as symbols of embattled liberal principles, almost as poster boys for a system that they have pledged to destroy. I’m interested in what this does to us, when we’re holding up people like Che Guevara and Fidel Castro, enemies of the United States who have been held up for years as some kind of rebels with a cause. Have these terrorists fallen into that category now? Are we sort of venerating them as heroes in some way?

Terrorists Venerated As Heroes

Andrew McCarthy: Well, they certainly have been the beneficiary of this perverse phenomenon that you refer to, which really has replicated itself from time to time throughout history, where they become almost the instantiation of the very civil rights that they were basically trying to destroy in trying to destroy our system. Unfortunately, the trajectory of what happens when you’re confronting this kind of a threat, which is different from a conventional war where day after day you have warfare operations, a terrorist war is very different. There are sneak attacks, and then they are followed generally by long periods of time when there may not be any attacks. The idea of course is to bend you to change your policy by fear. And what tends to happen is, when these attacks first happen, they spook people in a way that even warfare doesn’t spook people because of the shocking, unexpected nature of it. And for a certain period of time after the attacks happen, people will put up with all sorts of restrictions on their liberty. And if they believe the threat is profound enough, they’ll continue to endure a lot of inconvenience and worse. For example, getting on plane  . . . just how different it is to get on a plane even today than it was right before 9/11. But what happens after you go on for a long period of time without getting any additional attacks, is people come to resent the defensive measures and perversely, the people who caused the panic in the first place. Because there is some ambiguity about whether a terrorist is really a terrorist when you capture him. Unlike conventional warfare, terrorists violate all the conventional rules and customs of war. So they don’t come garbed as soldiers, they don’t wear uniforms, they don’t carry their weapons openly, etc. You’re always going to have ambiguity about whether you have the right person or not. And over time, people begin to worry about the specter of are we holding innocent people who’ve never gotten a trial before; never been proved in court to be among our enemies. And perversely, these people become the symbol of our civil rights and our due process system. And they become the occasion for having – at least this has been the case for the last eight years or so – they become the occasion for having not only referenda on what our rights should be, but really a wholesale re-litigation in many instances of principles related to the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, that were thought to be settled for the last forty or fifty years.

Avi Davis: You state at the end of the book that treating Jihadists at if they were U.S. citizens accused of crimes and presumed innocent reduces the quality of justice Americans themselves receive from their courts. Can you elaborate on that a little?

Reducing the Quality of Justice for U.S. Citizens

Andrew McCarthy: Sure. It’s very difficult because of what we talked about earlier in our conversation: the fact that when you use the criminal justice system paradigm for a national security challenge, what you are doing is basically turning the basic assumptions of the system on its head. Beginning with the fact that in the criminal justice system we essentially want the government to fail, and in a national security problem you have to want the government to succeed because that’s what preserves all the rights that we cherish so much. So it’s not a good fit. In our dreams and in the propaganda that we spout, we act as if it’s a perfectly good fit to have a national security problem dealt with as if it were a legal problem and taken through the regular justice system. But that fact is that once you get it into the justice system, immediately problems emerge even on a very elementary level. Like, for example, if you were a prosecutor and you wanted to get a criminal wire tap or criminal search warrant to look into a place where you believed there was evidence of crime, you would go to a judge and you would have to show probable cause that a crime was actually already being committed and the evidence was likely to be found in the place. And the judge would either give you the warrant or would not give you the warrant. But if what you’re now thinking is that you have a terrorism type situation where the people or place that you want to search is say, a bomb factory, the price of being wrong about that is a lot different for a judge than it is in say, a drug case. If I go in as a prosecutor for a search warrant in a narcotics case and the judge doesn’t give me one, if it turns out that he should have given me one then the worst thing that happens is maybe some packages of narcotics go into the stream of commerce. Which is not a good thing, but it’s not the end of the world. On the other hand, if we’re in a terrorism situation and the judge doesn’t give be me the warrant then, as we all know, an atrocity could happen and thousands of people could be killed. And it’s preposterous to think that that does not weigh on the prosecutor when he goes to the court to ask for a warrant. He’s necessarily going to use a lower standard of evidence that he would require to do something like seek a search warrant or seek a wire tap, because the price of being wrong and of not doing the protective thing is simply too high a human cost. And similarly with judge, the judge is not going to scrutinize those kinds of applications the same way that you would scrutinize under circumstances where there wasn’t a potential for a massive loss of life. So necessarily in order to make this work – in order to make these cases, to carry these cases off in the criminal justice system – everybody has to low-ball what they would ordinarily do in a normal criminal situation. That would be fine if terrorism was treated as a sort of a separate body of law in the criminal justice system. But it’s not. When you make precedence in terrorism cases, those principles that are developed apply across the board entirely to the criminal law so that it doesn’t matter if you’re in a terrorism case or you’re an accused tax cheat. The principles that are developed in those cases apply even in cases that don’t have anything to do with terrorism. And as a logical matter it’s just pretty obvious that the quality of justice overall in the system has to suffer if we’re going to try to fit terrorism cases into the normal due process that we use in the criminal justice system.

Avi Davis: The first words in the book in the first chapter – and in fact the entire theme of your book – seems to be “imagine the liability.” And you demonstrate throughout the book how the FBI is forced to back off, or feels itself compelled to back off, from investigations of potential terrorist activity in the United States for fear of damaging the civil rights of the terror suspects they’re investigating. This seems to be a very serious problem in the FBI and in the CIA, and I’m just wondering – how do we address it?

Imagine the Liability

Andrew McCarthy: Well, it is a very serious problem and its one that has become progressively more difficult rather than less difficult to address over the years since September 11^th. Let me talk about maybe two different ways of addressing this, and try to explain what I think is our system’s assumptions of how this ought to be done and maybe think about potentially other ways you could deal with it. In the United States, as opposed to say Great Britain, the FBI is our domestic security service – our domestic national security service, our domestic spy service, if you will. In England, they have a different way of doing it. They have MI5, which a stand-alone intelligence agency. And I say stand-alone in the sense that it does not have a law enforcement mission. Its only mission is to gather intelligence, and if it wants to prosecute it has to bring cases to Scotland Yard and to police authorities and they run with it from there. But they don’t do both law enforcement and national security. When I first started to deal with terrorism cases in 1993, I had already been a prosecutor for about eight years and I didn’t even know all that much about the fact that the FBI had this sort of double life. That they didn’t just handle the sort of criminal cases that I was dealing with – which at the time were Mafia cases and big international drug conspiracies – but they had this other existence where they really didn’t deal with prosecutors at all. They would have to go to a secret court in Washington to get authority to get wire taps and national security searches, which was basically information gathering for intelligence purposes. That system went along for a good long time, really right up until the point where we had this terrorism challenge. Because the main targets that the FBI had in that phase of its existence, and I’m talking now really prior to the 1970s and in some ways prior to 1993 when the Trade Center was bombed, their main target was espionage. We spied on the Soviets, the Soviets spied on us . . . we were in a sort of mutually assured destruction scenario where it was unlikely that either side was going to try to destroy the other. It was always a theoretical possibility but it wasn’t something that seemed likely in the here and now. And as a result, I think what ended up happening was the FBI people who investigated espionage cases really were completely… the protocols that we use in the criminal justice system were almost foreign to them. What ended up happening when the Trade Center got bombed was, suddenly, that investigation had been handled prior to the bombing of the Trade Center in the sense that the FBI was watching the people who ended up bombing the Trade Center. That had been handled as a national security investigation rather than a criminal investigation. And then suddenly the Trade Center gets bombed and we have what turns out to be the worst crime in the modern history of the United States, because it was treated as a crime at that point in time. And it was being investigated by people who really didn’t have much familiarity at all with the protocols that the FBI uses. And they have had, I think, a very difficult time trying to marry up the national security function with the criminal enforcement function because, as much as we’d like to think it’s seamless, it really is two different mindsets. A national security agent is trying to anticipate bad things that will happen and thwart them. You’re trying to get intelligence and try to prevent things from happening. The normal law enforcement mindset and the set of skills that you develop as a law enforcement person is a crime happens, you conduct an investigation, you get clues from either the crime scene or the people that you can speak to as witnesses, and you follow those leads in order to arrest somebody for something that has already occurred. So when you ask the FBI to carry out both the criminal law enforcement function and the domestic national security function, it’s difficult because you are asking them really to do two very, very different things.

Law Enforcement and Intelligence Under One Roof

Our theory in the United States is that, if you house the law enforcement function and the intelligence function under one roof, there’s a synergy there. They can basically play off each other. The way that you get your best intelligence, generally speaking, is not because people have a fit of patriotism and they all of a sudden want to bare their souls to the government about the bad things they know that are going on. Usually the way you get your best intelligence is by compromising someone; having them in a situation where you can prosecute them for serious offences and they cooperate in the hope of getting leniency. So the idea with our system is that the law enforcement function can be used as leverage to gain more intelligence, and similarly, when you gain more intelligence you become better at investigating large criminal organizations. So the idea is that we’ll have the synergy and we’ll ultimately be safer. That is how it should work in theory.

Should We Have a Stand Alone Spy Agency?

So far, it hasn’t worked as well as it should and as a result, a lot of people suggest that we should be more like Great Britain in the sense that we should have a stand-alone spy agency that does nothing but gather intelligence and doesn’t have a criminal law enforcement function. And therefore, they’re not saddled by the police officer mindset and become better at gathering intelligence and predicting attacks. I have my serious doubts about that. Number one, I don’t think the Brits have been much more efficient than we have in ferreting out Islamic radicalism and Islamic terrorism, and secondly, I think culturally America is just different from Great Britain in this regard. The British, in particular in this past century, have had a considerable experience dealing with terrorism, particularly with the IRA, and they have a different mindset about civil liberties than exists in the United States. There’s no First Amendment, for example, in Great Britain. It’s been a staple in Great Britain for a long time that you have even these cameras that seem to be omnipresent, where pictures are being taken and intelligence is being gathered all the time. I don’t think that that culture exists in the United States, and I doubt that people would take it in the way the Brits let it sort of roll off their back. I don’t think Americans would react the same way to the notion that the government is out there gathering intelligence all the time. You’re going to have to convince Americans that there’s a profound threat to their security before I think they would abide that kind of situation.

Avi Davis: Let’s now talk a little bit about national intelligence gathering. You support Mark Riebling from the Manhattan Institute’s view that a full half-century’s worth of national disasters – from Pearl Harbor to the Bay of Pigs, Kennedy’s assassination, Watergate, Iran Contra, and on to 9/11 of course – were enabled or exacerbated by a turf battle between the FBI and CIA. And it doesn’t seem to be just that, but it seems to be also an incompetence factor as well. For instance, you point how the anti-hero of Willful Blindness, Sheik Omar Abdel-Rahman, is able to come into the United States despite a long record of being on the FBI watch list as a terrorist mastermind. And it goes for several of the other terrorists who participated in the 1993 bombing of the World Trade Center. So I’m just wondering, are our intelligence systems just not capable of dealing with the terrorist threats that we face with today?

Question of Seriousness

Andrew McCarthy: Well, I think you have to separate before and after 9/11. And let me preface this by saying you’ve accurately captured what I say in the book and I think this continues to be a problem, although I think it’s less of one now than it was, say eight years ago. A lot of the incompetence, I believe, is attributable to the fact that the potential of international terrorism, particularly as a domestic phenomenon in the United States, was not taken seriously certainly prior to 1993 and, I would suggest, actually prior to 9/11. When you start taking the problem more seriously, I think a lot of the incompetence goes away just by virtue of people paying more attention and being more mindful of what the stakes are. That doesn’t excuse what went on, particularly from the mid-1980s up until ’93, which is what I deal with in the book. And then even beyond, some of the, frankly, ridiculous left hand not knowing what the right hand was doing practices that we followed in national security prior to 9/11. It’s just mind-boggling and it can’t be excused. But I am relieved to tell people that I think there has been a real effort to knock down walls and stove pipes and all these interferences and pediments to efficient intelligence collection and sharing. We’re in danger of lapsing back somewhat to some of the old ways, but things today are nothing like they were in 1993. I tell a story in the book – the first time I dealt with the CIA in my life was to tell them that I needed them to come up to give me a briefing on what the CIA’s role was in Afghanistan, because I had reason to know that that was going to be an issue to be dealt with during the trial. And the CIA told me they’d be delighted to come up and give me as the prosecutor a briefing, but only if the FBI was not going to be in the room when the briefing happened. That is the sort of thing that would not happen today. In fact, the agencies now . . .  they still have their rivalries, and some rivalry is good; it makes people work harder and push harder – they do not have the ruinous type of animus they had in previous years.

Cooperation between FBI and CIA

To the point that we do now have FBI guys that are stationed at the CIA and CIA people who are stationed at some of these terrorism units that exist throughout the United States – the joint terrorism task forces. I actually think the bigger problem we have right now than the FBI/CIA divide, which I regard as largely repaired, is the divide between the Federal government and the state governments. We’re still struggling, I think, with how you share information between those two levels of law enforcement and intelligence agency. Because the CIA and FBI, even for all their rivalry, are essentially intelligence organizations so that they have very high protocols and standards of clearance about who gets access to information and that sort of thing. That is not true of most police organizations in the United States, of which there are thousands. They just don’t have the same sort of national security mission, so they don’t have as high standards in terms of security clearance. And as a result, I think the Bureau and the CIA have been very chary of the idea of sharing information with the local police organizations. They’re happy to take information from them, but they’re not good at sharing back. And the reason this is absolutely essential, for people need to realize that there are only about eleven or twelve thousand FBI agents in the entire United States. To give you an idea of how small the FBI is manpower-wise: we have about 35,000 New York City police. The New York City Police Dept. is more than three times bigger than the entire national FBI. And that’s just in one city.

Avi Davis: That’s quite sobering.

Andrew McCarthy: Yeah! The point is that if we are actually going to be in a prevention mode, if we’re going to stop attacks from happening, the likelihood is that whatever information that we get that floats upstream, is going to come from the local police agencies. It’s not probably going to come from the Feds. Because there’s only so much that you can capture. We have all these sophisticated satellites; we can get information all sorts of ways. But there really is no substitute for having people on the ground, and there’s no substitute for the information that you get by way of human intelligence.

Avi Davis: So Jack Bauer really is going to save us.

Andrew McCarthy: (Laughing) Yes, that’s exactly right! And I think the biggest advantage we have, the biggest force multiplier that we have in terms of intelligence, is the local and state police agencies. And we simply have to find a better way to integrate them into the intelligence chain.

Avi Davis: We’ve got only ten minutes left, Mr. McCarthy, and I want to devote that to the Obama Administration and to its policies. Now surprisingly, it has reaffirmed NSA wire tapping scheme, at least to my understanding, and is willing to keep the warrantless wire tapping operation in place. However it has decided to close Guantanamo Bay, which I think in my estimation, was a political decision more than a military decision. What is the likely fallout from closing Guantanamo Bay? It’s not clear where they’re all going to go, these detainees . . .

Guantanamo Bay

Andrew McCarthy: We’re already seeing some of the disastrous fallout of it. I would say in the last ten days to two weeks, we took one of the most dangerous of the remaining enemy combatants held at Guantanamo Bay, a fellow by the name of Binyam Mohamed, who was the partner of the so-called “Dirty Bomber,” Jose Padilla, the American citizen who was held as an enemy combatant for a while and then finally prosecuted on terrorism charges in the criminal justice system. Binyam Mohamed was his accomplice. When he was arrested he was almost certainly en route here to meet up with Padilla, where they were planning to carry out if not a dirty bomb attack, then other kinds of mass murder plots in major American cities. If your listeners know about Binyam Mohamed it’s only because they’ve heard that he was tortured, because he was actually apprehended under an extraordinary rendition, which is when our intelligence services basically grab somebody then render him to another country that’s less fastidious about civil rights and particularly interrogation standards than is common in the West. And I don’t know whether Binyam Mohamed is telling the truth, I don’t know if he was really tortured or he wasn’t. My only point is that what people know about that case is only his torture allegations. Most people don’t know that he was a very serious terrorist who was planning to carry out mass murder attacks.

Do We Use the Military Justice System or Criminal System?

We have been struggling for eight years with what paradigm do we use . . .  do we use the military justice system; do we use the criminal justice system? In Binyam Mohamed’s case, what we’ve done is abandon both systems and simply released him. He was allowed to leave Guantanamo Bay. He’s been transported – transferred – to Great Britain, where he’s living free and clear, and as far I understand, also on public assistance. What I am very fearful of, precisely because what you say is correct – the decision to close Gitmo was a political decision; it was not a wise national security decision – is that the Obama Administration seems to have come around to the view, which is not a view they had when they were running for the White House, that there actually are dangerous people who can’t be tried in the ordinary court system because of intelligence reasons. We simply can’t put the evidence in that would satisfy the standards that apply in the criminal justice system. You have to have some other method of dealing with those people. The only other method would be to regularize and pass laws that would set up a system for combatant detention, short of convicting somebody at trial. Because of their political base, I’m fearful that even though they know that that’s true and that’s something that must be done, they won’t go that route and what they’ll do instead is a lot more of the Binyam Mohamed plan, which is that we are basically to go, hat in hand, to other countries and ask them to take these people off our hands. And we may even end up releasing some of them in the United States, as horrible as that would be.

Avi Davis; That is a horrible prospect, I must admit.

Andrew McCarthy: Well, we’ve already had one judge order the Uighurs – the Chinese Muslims who were captured in Afghanistan after the battle of Tora Bora – we’ve already had one federal judge order seventeen of them not only released, but released inside the United States. Now so far that’s been reversed on appeal, but I daresay that in the months and even a couple of years after 9/11, it would be inconceivable that we would even think of taking trained Jihadists, and these guys have all been through the Al-Qaeda camps and Afghanistan and Pakistan, taking trained Jihadists and releasing them in the United States. It’s just inconceivable, and yet we have a judge who’s ordered it.

Avi Davis: Why did the Obama Administration maintain the NSA wire-tapping scheme?  I was at a Bruce Springsteen n 2007, and not that he’s a great political commentator but he does have influence, and he claimed there that we had lost our civil liberties because of that practice.

Andrew McCarthy: My friend Laura Ingram has a book called Shut Up and Sing, which is directed at people like Bruce Springsteen who are tremendous entertainers but ought to stay out of the Fourth Amendment business. Every federal court of that had ever ruled on it, every federal court of appeals has held that, notwithstanding the regime that Congress enacted in 1978 which is called FISA (the Foreign Intelligence Surveillance Act), the President maintained his authority under Article II of the Constitution to conduct warrantless wire tapping for national security purposes against foreign threats to national security. And even when the Clinton Administration, which was the last fairly liberal administration that we had before this one, even when they were in, when FISA was amended to include not only wire taps but physical searches, the Attorney General or the Deputy Attorney General from the Clinton Administration testified in Congress that it was Clinton’s position that the President continued to have authority to order searches and wire taps even if a court would not order them; that you could do it in a warrantless way. So all the people who complained and compared the warrantless wire tapping program to Watergate era domestic spying were just conflating two vastly different things and basically ignoring the law that had been ruled on by the courts for years, including the court that Congress created to interpret the FISA statute. The reason I think Obama has kept it in place is we found out, of course after the election, that in late 2008 the Foreign Intelligence Surveillance Court of Review once again held that the President has the authority to conduct warrantless wire tapping. And the Bush Administration, in any event, says there is no more warrantless program – that they’ve actually brought the whole thing under the supervision of the FISA court. So I think the Obama Administration has the advantage of the fact that the program has already been brought under the supervision of the FISA court and the fact that the FISA court, even before Obama took office, reaffirmed the President’s authority. So they don’t really have to say that they’re keeping the program. They’re simply adhering to the law as it has been construed without deviation for thirty years.

Avi Davis: And of course the ruling is a political dilemma as well. I want to thank you very, very much for joining us today. Your book , Andrew McCarthy Willful Blindness, really is a wonderful piece of writing. I must commend you because it reads like a novel. It’s so fantastical it’s hard to believe that it’s real. But it is real, and I commend it to all our listeners to read it and to really get a sense of what dangers we really face today.

Andrew McCarthy: You’re very, very kind to say that and I appreciate it.

Avi Davis: Next week we’ll be back with an interview with Jamie Glazov, who is the author of United in Hate : The Left’s Romance With Terrorism, and I encourage you to join us for that. Until then, we’ll see next week. Thank you once again.

Andrew McCarthy: Thank you.