A federal court slaps down a novel claim from a Sudanese business bombed by the U.S. in 1998.

By: David B. Rivkin Jr. and Bruce D. Brown |  Published in The Wall Street Journal  | June 24, 2010

America's war on terror is being fought on some unlikely fronts. This month, the D.C. Circuit Court of Appeals, in a first-of-its-kind ruling, threw out a libel claim brought by El-Shifa pharmaceutical plant, the Sudanese factory bombed by the Clinton administration in 1998 in response to al Qaeda attacks on the American Embassies in Kenya and Tanzania. The U.S. claimed that the plant was connected to Osama bin Laden and involved in chemical weapons production.

Insisting they are medicine makers and not terrorists, the plant owners initially sued the U.S. government for millions of dollars in damages for destroyed property. With these claims rejected, they advanced a novel legal theory—alleging that U.S. military action, predicated upon the government's portrayal of them as terrorist supporters, ruined their reputation. Aware that money damages are not available against the federal government for defamation, the plaintiffs asked the courts to declare the statements about them false and force a retraction from the U.S. government.

In the post-9/11 era—where lawfare has become an integral part of warfare—El-Shifa's defamation suit ought to be taken seriously. The plaintiffs sought to pull the judiciary even more deeply into reviewing government decisions about the use of force that lie at the very core of the president's constitutional authority.

Sitting as a full court, the D.C. Circuit properly ruled that the case presented a non-justiciable "political question." Under this venerable doctrine, the courts have no authority to review discretionary policy choices assigned by the Constitution to the government's political branches. Determining whether the Clinton administration's statements about the Sudanese factory were true is such an issue, the court ruled, because it would require judges to assess the wisdom of military action, a responsibility vested exclusively with the president. Though the plaintiffs argued that a libel judgment could not impair the president's national security-related powers, the judges understood that, were they to rule in El-Shifa's favor, they would violate the separation of powers by contradicting the president's justification for the attack.

The court could have stopped here. However, recognizing that future libel suits against the federal government might not present "political questions," a block of concurring judges suggested another compelling way to reject El-Shifa's suit and other cases like it. The federal government is immune from most tort liability, including defamation, ensuring that individuals cannot sue the government for damages based on alleged libel. Nor can government officials be sued personally for statements made on the job, preventing fear of large judgments from deterring officials from speaking freely about controversial subjects. The concurring judges concluded that because Congress has not authorized defamation lawsuits against the government, El-Shifa owners could not obtain any kind of relief.

The El-Shifa case posed a provocative question: Whether, when damages are off the table, a claim seeking only to correct the record should be permitted in the future. The answer is emphatically no. Turning the courts into mini "truth commissions" would both force the judiciary into conflict with its co-equal branches and hurt free speech.

American libel law, which operates in the context of constitutional protection for free speech that is unique even among the world's democracies, is built around the sound premise that only those plaintiffs who can prove all the elements of a defamation claim should be compensated. Falsity is but one of those required elements. We have never had a tradition of skipping the other necessary elements of the claim—with the extent of "actual malice" of defendants being the key—even if plaintiffs are only chasing a retraction.

The rules of evidence are designed to produce fairness in court, not "truth" in any abstract sense. In libel cases, particularly where national security is at issue, significant amounts of testimony will not be available because of privileges and claims of state secrets. The El-Shifa suit should be the first and last of its kind. War is no place for libel law.

Messrs. Rivkin and Brown are partners in the Washington, D.C., office of Baker Hostetler. Mr. Rivkin served in the Justice Department under Presidents Reagan and George H.W. Bush

WASHINGTON — A federal appeals court ruled Friday that three men who had been detained by the United States military for years without trial in Afghanistan had no recourse to American courts. The decision was a broad victory for the Obama administration in its efforts to hold terrorism suspects overseas for indefinite periods without judicial oversight.

The detainees, two Yemenis and a Tunisian who say they were captured outside Afghanistan, contend that they are not terrorists and are being mistakenly imprisoned at the American military prison at Bagram Air Base.

But a three-judge panel of the United States Court of Appeals for the District of Columbia ruled unanimously that the three had no right to habeas corpus hearings, in which judges would review evidence against them and could order their release. The court reasoned that Bagram was on the sovereign territory of another government and emphasized the “pragmatic obstacles” of giving hearings to detainees “in an active theater of war.”

The ruling dealt a severe blow to wider efforts by lawyers to extend a landmark 2008 Supreme Court ruling granting habeas corpus rights to prisoners at Guantánamo Bay, Cuba. A lower court judge had previously ruled that the three Bagram detainees were entitled to the same rights, although he had found that others captured in Afghanistan and held there were not.

A lawyer for the detainees, Tina Foster, said that if the precedent stood, Mr. Obama and future presidents would have a free hand to “kidnap people from other parts of the world and lock them away for the rest of their lives” without having to prove in court that their suspicions about such prisoners were accurate.

“The thing that is most disappointing for those of us who have been in the fight for this long is all of the people who used to be opposed to the idea of unlimited executive power during the Bush administration but now seem to have embraced it during this administration,” she said. “We have to remember that Obama is not the last president of the United States.”

Senator Lindsey Graham, Republican of South Carolina and an influential lawmaker in the long-running debate over detentions, called the ruling a “big win” and praised the administration for appealing the lower court’s ruling.

“Allowing a noncitizen enemy combatant detained in a combat zone access to American courts would have been a change of historic proportions,” he said. “It also would have dealt a severe blow to our war effort.

“There is a reason we have never allowed enemy prisoners detained overseas in an active war zone to sue in federal court for their release. It simply makes no sense and would be the ultimate act of turning the war into a crime.”

It was not entirely clear how the ruling might affect detention policies for terrorism suspects caught outside Afghanistan or Iraq. While the Obama administration has stepped up the use of Predator drone strikes to kill terrorism suspects and has relied on other countries, like Pakistan, to hold and interrogate suspects who are captured alive, it is not known whether the United States has directly captured anyone outside Afghanistan or Iraq recently — and, if so, where it has taken them.

A Justice Department spokesman, Dean Boyd, would not comment on the decision.

David Rivkin, who filed a friend-of-the-court brief on behalf of the Special Forces Association urging the court to side with the government, said the ruling would have broad significance by removing doubts over whether the United States could capture and interrogate terrorism suspects without worrying about having to collect, in dangerous situations, evidence that would later stand up in court.

“This is an excellent decision,” said Mr. Rivkin, who was a White House lawyer in the administration of the first President Bush. “It has restored a considerable degree of sanity to what threatened to be a crazy legal regime that would have deprived the United States, for the first time in history, of the opportunity to capture and detain — outside of the United States, in theaters of war — high-value combatants. That has been solved, and it will apply to many other situations in the future.”

The case was brought on behalf of a Tunisian man who says he was captured in Pakistan in 2002, a Yemeni man who says he was captured in Thailand in 2002, and another Yemeni man who says he was captured in 2003 at another location outside Afghanistan that has not been disclosed. (The government has disputed the second Yemeni’s claim.)

The men’s case was originally heard by Judge John D. Bates of the Federal District Court, an appointee of former President George W. Bush. The Bush and Obama administrations had both urged Judge Bates not to extend habeas corpus rights beyond Guantánamo, arguing that courts should not interfere with military operations inside active combat zones.

But in April 2009, Judge Bates ruled that there was no difference between the three men who had filed suit and Guantánamo prisoners. His decision was limited to non-Afghans captured outside Afghanistan — a category that fits only about a dozen of the roughly 800 detainees at Bagram, officials have said.

In urging the appeals court to let Judge Bates’s decision stand, lawyers for the detainees argued that reversing it would mean that the government would be able “to evade judicial review of executive detention decisions by transferring detainees into active combat zones, thereby granting the executive the power to switch the Constitution on or off at will.”

But in the appeal panel’s decision reversing Judge Bates, Chief Judge David B. Sentelle said there had been no such gamesmanship in the decision to bring the three detainees to Bagram because it happened years before the Supreme Court’s Guantánamo rulings.

Still, he left the door open to approving habeas corpus rights for prisoners taken to prisons other than Guantánamo in the future, writing, “We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than speculation.”

Ms. Foster vowed to keep fighting. But Mr. Rivkin said that the detainees’ chances for overturning the decision were dim because the three appeals judges spanned the ideological spectrum: Chief Judge Sentelle, appointed by President Ronald Reagan; Judge Harry T. Edwards, appointed by President Jimmy Carter; and Judge David S. Tatel, appointed by President Bill Clinton.

It could also be difficult to win a reversal by the Supreme Court, where five of the nine justices supported giving habeas rights to detainees in the Guantánamo case. Among the narrow majority in that case was Justice John Paul Stevens, who is retiring.

The nominee to replace him, Elena Kagan, who as solicitor general signed the government’s briefs in the case, would most likely recuse herself from hearing an appeal of the decision, and a four-four split would allow it to stand.

Anwar al-Awlaki is an American citizen, born in New Mexico. He is best known as a radical imam who preaches jihad and celebrates violent Islamic extremism from within Western societies, including that of the United States. Media reports indicate that he was in contact with U.S. Army Major Nidal Malik Hasan, who is accused of murdering 13 people at Fort Hood, Texas, last November. Al-Awlaki left the U.S. for Yemen (his parents’ homeland) in 2004 and the U.S. government says that he is a member of al Qaeda. Accordingly, President Obama has authorized U.S. forces—including the CIA—to capture or kill al-Awlaki, an order that has provoked outrage among many of the president's own supporters, who claim that any such action would be an illegal, extrajudicial killing of a criminal suspect. In fact, the president's order is entirely lawful and justified.

 

“The fact that al-Awlaki’s role may have been more as a propagandist and interlocutor, rather than a foot soldier, does not render him a civilian or ‘non-combatant’ who is immune from deliberate attack.”

Although he was profoundly criticl of the "war on terror" before his election, President Obama has continued far more of the Bush administration's policies than he has changed. He has not closed the Guantanamo Bay detention facility, he has not withdrawn American forces from either Iraq or Afghanistan, and he has clearly accepted the fundamental proposition that the U.S. is at war with al Qaeda and its allies. As State Department legal adviser Harold Koh (once also a vocal critic of the "war on terror") recently noted in a speech before the American Society of International Law: "We continue to fight a war of self-defense against any enemy that attacked us on September 11, 2001, and before, and that continues to undertake armed attacks against the United States." George W. Bush could not have put it better. It is safe to say that President, rather than candidate, Obama has been hit with a sobering dose of reality about the nature and extent of the jihadist threat.

The president's decision to add Anwar al-Awlaki to the list of al Qaeda operatives that the military and/or the CIA can target for attack is, therefore, hardly surprising. The fact that al-Awlaki is a U.S. national makes no difference. Americans who join in armed hostilities against the United States are enemy combatants. They are subject to attack, capture, and detention pursuant to the law of armed conflict, just like any other enemy combatant who is not a citizen. This was established in the World War II "Nazi saboteur" case, Ex parte Quirin (1942), in which the Supreme Court approved the trial by military commission of eight German agents, at least one of whom was an American citizen. The Supreme Court reaffirmed this basic principle more recently in Hamdi v. Rumsfeld (2004), in which it approved the capture and detention (without criminal charge or trial) of an American who was taken fighting with the Taliban.

In both cases, the court invoked the law of armed conflict. It is this body of law in particular that permits U.S. forces to attack, without warning or any effort to capture, enemy combatants including al-Awlaki. Enemy combatants are not criminal suspects and the U.S. military is not a police force that must first attempt to effect an arrest before using deadly force. The only limitations on the use of force against such individuals involve the basic principles of distinction (forbidding direct attacks on civilians) and proportionality (requiring that the likely collateral damage to civilians from a military operation is justified by its overall objective). The use of technologically innovative instruments, such as remote-controlled drones, in no way violates these well-settled rules. Indeed, technology has long been a handmaiden of war. As a matter of law, drones are no different from aerial bombs, artillery shells, bullets, or bayonets.

It is true that drone attacks have emerged as one of the most significant and effective American instruments in this war, capable not just of killing numerous enemy combatants but, perhaps even more importantly, forcing the entire al Qaeda infrastructure to operate in a “scared mode.” When al Qaeda leaders are afraid to meet or travel, cannot communicate by phone, relying instead of couriers, their ability to wage war is tremendously degraded. Indeed, the fact that these salutary strategic results can be accomplished with unprecedented precision and greatly reduced, albeit of course not fully eliminated, collateral damage is something to celebrate. It is certainly not a reason to challenge the use of drones or seek to subject them to some heightened regulatory restrictions, above and beyond those found in the traditional precepts of the law of armed conflict.

Similarly, the fact that al-Awlaki's role may have been more as a propagandist and interlocutor, rather than a foot soldier, does not render him a civilian or "non-combatant" who is immune from deliberate attack. Like anyarmed force, both al Qaeda and the Taliban include many individuals, who are part of their command and control or logistics and support apparatus. And, just as many members of legitimate military establishments, who rarely if ever actually go into action, are nevertheless "combatants" under the law of armed conflict, so is al Qaeda's leadership (high and low) legally subject to armed attack.

Finally, simply because established targeting lists are prepared far from the actual battlefield is no good reason—as some have claimed—to subject the president's decision to add or delete a name to judicial review. The Constitution makes the president commander in chief, and Congress has specifically authorized the president to use force against those responsible for the September 11 attacks and those who support their efforts. Appropriate congressional committees are briefed on a regular basis about all particulars of the drone program, further enhancing its accountability and bipartisan support.

The questions of when and how to attack the enemy are properly within the president's discretion and not subject to judicial supervision. In this instance, it is the political branches of the federal government, and not the courts, which have the legal authority—along with the necessary technical expertise and political accountability—to conduct all aspects of the war against al Qaeda. If and when enemy combatants, including U.S. citizens like al-Awlaki, are captured, detained, and/or prosecuted, the courts will have their say.

As to Obama's disappointed supporters, it is time that they acknowledge—as he and his administration have done—that the United States is at war with al Qaeda, and not merely engaged in some elaborate law-enforcement exercise. This war was not invented by George W. Bush as a means of increasing presidential power. It was brought to our shores by a determined and ruthless enemy that decided, long before September 11, to challenge the United States militarily in a concerted effort to drive American influence out of theMuslim world, and then ultimately to replace Western democracy as the prevailing global political and social system. That is the reality Obama discovered when he entered the Oval Office.

Messrs. Rivkin and Casey are Washington attorneys who served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. They frequently write on international and constitutional law matters.

Source: Wall Street Journal- ASIA EDITION

When U.S. President Barack Obama sharply challenged a recent Supreme Court decision in his State of the Union address, prompting a soto voce rejoinder from Justice Samuel Alito, nobody was concerned that the contretemps would spark a blood feud between the judiciary and the executive. The notion that judges could or would work to undermine a sitting U.S. president is fundamentally alien to America’s constitutional system and political culture. Unfortunately, this is not the case in Pakistan.

Supreme Court Chief Justice Iftikhar Mohammed Chaudhry, the country’s erstwhile hero, is the leading culprit in an unfolding constitutional drama. It was Mr. Chaudhry’s dismissal by then-President Pervez Musharraf in 2007 that triggered street protests by lawyers and judges under the twin banners of democracy and judicial independence. This effort eventually led to Mr. Musharraf’s resignation in 2008. Yet it is now Mr. Chaudhry himself who is violating those principles, having evidently embarked on a campaign to undermine and perhaps even oust President Asif Ali Zardari.

Any involvement in politics by a sitting judge, not to mention a chief justice, is utterly inconsistent with an independent judiciary’s proper role. What is even worse, Chief Justice Chaudhry has been using the court to advance his anti-Zardari campaign. Two recent court actions are emblematic of this effort.

The first is a decision by the Supreme Court, announced and effective last December, to overturn the “National Reconciliation Ordinance.” The NRO, which was decreed in October 2007, granted amnesty to more than 8,000 members from all political parties who had been accused of corruption in the media and some of whom had pending indictments.

While some of these people are probably corrupt, many are not and, in any case, politically inspired prosecutions have long been a bane of Pakistan’s democracy. The decree is similar to actions taken by many other fledgling democracies, such as post-apartheid South Africa, to promote national reconciliation. It was negotiated with the assistance of the United States and was a key element in Pakistan’s transition from a military dictatorship to democracy.

Chief Justice Chaudhry’s decision to overturn the NRO, opening the door to prosecute President Zardari and all members of his cabinet, was bad enough. But the way he did it was even worse. Much to the dismay of many of the brave lawyers who took to the streets to defend the court’s integrity last year, Mr. Chaudhry’s anti-NRO opinion also blessed a highly troubling article of Pakistan’s Constitution—Article 62. This Article, written in 1985, declared that members of parliament are disqualified from serving if they are not of “good character,” if they violate “Islamic injunctions,” do not practice “teachings and practices, obligatory duties prescribed by Islam,” and if they are not “sagacious, righteous and non-profligate.” For non-Muslims, the Article requires that they have “a good moral reputation.”

Putting aside the fact that Article 62 was promulgated by Pakistan’s then ruling military dictator, General Zia ul-Haq, relying on religion-based standards as “Islamic injunctions” or inherently subjective criteria as “good moral reputation” thrusts the Pakistani Supreme Court into an essentially religious domain, not unlike Iranian Sharia-based courts. This behavior is profoundly ill-suited for any secular court. While Article 62 was not formally repealed, it was discredited and in effect, a dead letter. The fact that the petitioner in the NRO case sought only to challenge the decree based on the nondiscrimination clause of the Pakistani Constitution and did not mention Article 62 makes the court’s invocation of it even more repugnant. Meanwhile, the decision’s lengthy recitations of religious literature and poetry, rather than reliance on legal precedent, further pulls the judiciary from its proper constitutional moorings.

The second anti-Zardari effort occurred just a few days ago, when the court blocked a slate of the president’s judicial appointments. The court’s three-Justice panel justified the move by alleging the president failed to “consult” with Mr. Chaudhry. This constitutional excuse has never been used before.

It is well-known in Islamabad that Mr. Zardari’s real sin was political, as he dared to appoint people unacceptable to the chief justice. Since consultation is not approval, Mr. Chaudhry’s position appears to be legally untenable. Yet Mr. Zardari, faced with demonstrations and media attacks, let Mr. Chaudhry choose a Supreme Court justice.

There is no doubt that the chief justice is more popular these days than the president, who has been weakened by the split in the political coalition which brought down Mr. Musharraf. Former Prime Minister Nawaz Sharif is now a leading opponent of the regime. There is a strong sense among the Pakistani elites that Justice Chaudhry has become Mr. Sharif’s key ally.

The fact that Mr. Chaudhry was a victim of an improper effort by former President Musharraf to replace him with a more pliant judge makes his current posture all the more deplorable. His conduct has led some of his erstwhile allies to criticize him and speak of the danger to democracy posted by judicial meddling in politics. The stakes are stark indeed. If Mr. Chaudhry succeeds in ousting Mr. Zardari, Pakistan’s fledgling democracy would be undermined and the judiciary’s own legitimacy would be irrevocably damaged. Rule by unaccountable judges is no better than rule by the generals.

Messrs. Rivkin and Casey, Washington, D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.

From Fox & Friends, original airdate: 2/6/10

Was it proper for them to be mirandizing this guy in the first place?

David Rivkin: Utterly improper and Clayton forget about the critics. The justice dept senior official, U.S. attorney for the Southern District of New York [Preet Bharara] on Dec. 18 argues in a filing that its essential to treat a person like Ghailani or Abdumuttalab as intelligence assets, with protracted interrogations, psychological dominance, to illicit ever bit of intelligence information back and forth—not 15 minutes.
Remember he’s at his most vulnerable right after his capture. This was a huge mistake.

We seem to have gotten a lot of information from this guy.

Of course. But we didn’t get this information in a timely fashion. So intelligence got stale. And just because we’re getting some intelligence stream out of this guy doesn’t mean we couldn’t have gotten more.
My point is, don’t listen to me, listen to Mr. Bharara, U.S. Attorney for the Southern District of New York, who wrote this filing up to consult the intelligence community that espouses the virtue of treating somebody as an intelligence asset. Forget about where he’s going to be tried eventually, that’s a different debate. We could’ve treated him as an enemy combatant, interrogated him humanely for several months, got everything out of him and then made a decision whether we want to put him in a criminal justice system.…. We got some information out of him, we could’ve gotten more. There’s no doubt about that.





From THE ED SHOW on MSNBC original airdate: 2/8/10

Video opening of footage of top counter terrorism chief John Brennan explaining the night of Detroit bombing.

Ed: Why the Republican criticism so late when they knew the day it took place what was going on?

Rivkin: First of all, they didn’t. It’s interesting that Mr. Brennan says that being in FBI custody is synonymous with being Mirandized. What’s interesting is at the beginning of this administration they announced the creation of something called HIG, high interrogation group that was centered in the FBI. They specifically said it did not mean people would be invariably Mirandized. So Brennan is just factually wrong. Let me just point out isn’t it kind of silly to be talking about, gee, why didn’t the other side complain instead of looking at the underlying substance of this.
We’re talking about somebody who is interrogated for 50 minutes, that interrogation was interrupted and he is Mirandized. I don’t know of any serious interrogator who does not believe that we should have a go at him for several weeks.

Well, what you’re saying may be true. But no Republican at the time had any objection for weeks on end on this issue?

Ed, I just explained that they did not know when he was going to be Mirandized.

Well you’re assuming that. You’re putting your credibility against Mr. Brennan who says they were told.

No, Mr. Brennan said that Abdulmutallab was in FBI custody and that invariably meant he would be Mirandized …. I’m telling you when the administration eye-level announcement, when they created HIG, specifically said it did not mean that people would get Mirandized. So unless they could read Mr. Brennan’s mind … The notion they [Republicans] could conceive the administration would be so foolish as to Mirandize him in 50 minutes is quite simply ludicrous. Of course they didn’t conceive of it. It would’ve been crazy!



From Fox and Friends, original airdate:  2/11/10

Host: Supreme Court said California is different; they do have, under the Constitution there, a right to free speech in parts of the mall subject to reasonable regulation. So wasn’t the pastor’s first amendment right violated?

David Rivkin: I think it’s an excellent case as you correctly point out under the California Constitution; it’s broader in scope than the federal Constitution. And the gist of it would be this: the regulations the mall put in place were overly broad and they were enforced in an arbitrary fashion. Remember he did not carry placards, he did not try to organize a demonstration which is the kind of activity for which you would need a permit, he just had a conversation with free shoppers. And the notion that you need to get advance approval for that kind of interaction is quite frankly, silly.

The mall instituted two “reasonable” restrictions—a specific place in the mall, and the speaker has to submit an application four days in advance. Doesn’t that strike you, as a lawyer, as maybe potential censorship and unreasonable?

It is. And again it would be quite different if we were talking about a large city where you were going to organize a demonstration of many thousands. A number of cities don’t require that long of an advance period. So they manage it. 

But another thing to emphasize: these regulations only apply to conversations involving political and religious and other noncommercial speech. So it’s not just a question of reasonable regulations such as place. But it’s the content because it seems to single out religious and political content.

That may be what bothers people. It’s ok to strike up conversations about baseball but not God. There’s something that may be offensive to a great many people about that.

That is absolutely true. Let’s be clear: content regulation, or regulations that treat one type of speech different from another are almost always unconstitutional … For example in the context of getting a permit, let’s say: It was reasonable to get a permit for a large demonstration, but regulations said you don’t need to get one when talking about art, but if you’re talking about God you need a permit. That would be struck down without a doubt.

If I’m a business owner and someone is proselytizing in my store, I guess I have a legit business interest in preventing that from happening and thus the reasonableness of the designated area?

No, what you want to do is tailor restrictions as narrowly as possible. Concerning behavior in a store: If someone is driving customers away there would be nuisance and loitering approaches that would enable you to ask the person to leave, or cause them to be arrested. You don’t need to have regulations of this kind here. But nothing like that happened here.

Yes or no: Is the preacher going to win?

Well, it's in California State courts but I think he has an excellent change of winning. He obviously lost so far at the trial level, but things tend to get better results at the appeal level. I’m optimistic he would win.

 

David Rivkin responds with call for serious evaluation of FBI interrogation policy

Published on February 09, 2010 by Brent Baldwin (OfficialWire) WASHINGTON, D.C.

On the hot seat of MSNBC’s The Ed Show, former Justice Department official David Rivkin called Deputy National Security Advisor John Brennan “factually wrong” when insisting that senior members of Congress were aware that Miranda rights would be given so soon to terrorist suspect, Umar Farouk Abdulmutallab.

“It’s interesting that Mr. Brennan says that being in FBI custody is synonymous with being Mirandized,” said Rivkin, Senior Fellow at the Foundation for The Defense of Democracies and co-chair for the Center for Law & Counterterrorism.  Rivkin pointed to an organization within the FBI known as HIG (high-level interrogation group), formed early in the administration, that had previously announced it did not require Mirandizing a suspect.

“The notion [Republicans] could conceive the administration would be so foolish as to Mirandize him in 50 minutes is quite simply ludicrous. Of course they didn’t conceive of it. It would’ve been crazy!” Rivkin said.

The show segment from Feb. 8th began with a Meet The Press clip of Deputy National Security Advisor John Brennan explaining that he had briefed several senior members of Congress on the night of the Christmas attack who never expressed reservations about standard FBI procedure. Among those was Senate Minority Leader Mitch McConnell, now one of the loudest critics of the Obama administration’s handling of the brief interrogation.

Liberal host Ed Schultz tried to paint the entire Republican argument as “political posturing” and challenged Rivkin, saying he was pitting his credibility against the word of Brennan. But Rivkin remained adamant that officials would not have simply assumed Miranda rights were being given automatically. Rivkin also pointed out that there should be less blame cast by both sides and more attention to the underlying failures in common sense procedure.

“We’re talking about somebody who is interrogated for 50 minutes, that interrogation was interrupted and he is Mirandized. I don’t know of any serious interrogator who does not believe that we should have a go at him for several weeks,” Rivkin said.


About David Rivkin
David Rivkin is an attorney in private practice and partner at Baker & Hostetler in Washington, D.C., who has had a lengthy career distinguished by service in the White House during two presidents’ terms, in the U.S. Department of Justice and in the U.S. Department of Energy. He is a well-known writer and media commentator on matters of constitutional and international law, as well as foreign and defense policy. He is a visiting fellow at the Nixon Center, contributing editor at the National Review, and a member of the Advisory Council at National Interest magazine. He currently serves as co-chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies. He also represents foreign governments and corporate entities on legal, political, defense, economy and public relations matters.
For more information, visit www.davidrivkin.com or contact:

Former Justice Department official cites secret legal filing that contradicts Obama approach to charging terrorists

Published on February 08, 2010 by Brent Baldwin (OfficialWire) WASHINGTON, D.C.

Attorney and former Justice Department official David Rivkin recently broke a story in his Wall Street Journal Op-Ed (“Tale of Two Terrorists”) regarding a secret filing made by the U.S. attorney for the Southern District of New York. The filing, made Dec. 18, basically argued that interrogating terrorists must come before criminal prosecution.

On Feb. 6, Rivkin appeared live on Fox and Friends alongside Matthew Alexander, a former senior interrogator in Iraq and author, to discuss the use of Miranda rights for accused terrorists. They specifically discussed Nigerian terrorist Umar Farouk Abdumuttalab, who promptly stopped talking after being read his rights. White House Press Secretary Robert Gibbs previously stated that the FBI obtained sufficient intelligence from a 50-minute interrogation of Abdumuttalab on Christmas Day before reading him his rights. Rivkin strongly disagrees with this approach.

“This was a huge mistake,” Rivkin said. “The Justice Department senior official, U.S. attorney Preet Bharara on Dec. 18 argues in a filing that its essential to treat a person like Abdumuttalab as an intelligence asset, with protracted interrogations to illicit every bit of intelligence information back and forth—and not just for 15  [or 50] minutes.”

Alexander countered that he would rather “deligitimize” terrorists by showing that our government upholds the word of the law; and also by treating terrorists as common criminals which would make them less effective as recruitment figures.

Rivkin said the most important means of self-defense involved timing and the overall intelligence information gathered from suspects at hand. “We didn’t get this information in a timely fashion. So intelligence got stale. And just because we’re getting some intelligence stream out of this guy doesn’t mean we couldn’t have gotten more,” Rivkin said, noting that he was still for humane treatment of prisoners.

“We could’ve treated him as an enemy combatant, interrogated him humanely for several months, got everything out of him and then made a decision about whether we want to put him in a criminal justice system,” Rivkin said. “We got some information out of him, but we could’ve gotten more. There’s no doubt about that.”

About David Rivkin
David Rivkin is an attorney in private practice and partner at Baker & Hostetler in Washington, D.C., who has had a lengthy career distinguished by service in the White House during two presidents’ terms, in the U.S. Department of Justice and in the U.S. Department of Energy. He is a well-known writer and media commentator on matters of constitutional and international law, as well as foreign and defense policy. He is a visiting fellow at the Nixon Center, contributing editor at the National Review, and a member of the Advisory Council at National Interest magazine. He currently serves as co-chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies. He also represents foreign governments and corporate entities on legal, political, defense, economy and public relations matters.  For more information, visit www.davidrivkin.com or contact:

 

Thursday, February 4, 2010

defenddemocracy.com
Escape from Guantanamo Bay

LEE A. CASEY & DAVID B. RIVKIN JR.

In truth, it will be far more difficult for the president to accept that his decision to close Guantanamo was wrong than it will be for him to explain a reversal of the policy. Here, the spin is easy - it has the unusual virtue of being true.

Obama has consistently maintained that he would not endanger American security in implementing his policies vis-à-vis al-Qaeda and its allies - he could hardly have done otherwise. That being the case, he need only acknowledge that one of the fundamental aspects of his Guantanamo closure policy - the ability to transfer most of the detainees either to their own countries or to third countries for "rehabilitation" - has not worked out as he had hoped and expected. The only way of closing Guantanamo and ensuring U.S. security interests would be to bring the entire detainee population into the United States, which he never planned to do. Therefore, Guantanamo will have to remain open pending further review of detainee repatriation opportunities and policies.

The problem, of course, is that Mr. Obama's base spent nearly eight years claiming that Guantanamo was inherently evil and that it was a stain on the nation's reputation attributable to George W. Bush's insatiable desire to concentrate power in his own hands regardless of individual rights.

The Bush policy was, of course, neither evil nor unlawful, and any "stain" has always been more imaginary than real. But too many of Bush's critics came to believe their own propaganda, and changing these beliefs will be hard. Nevertheless, the presidency is a hard job - so Mr. Obama had best get to it.

From Thoughtbasket.com:
The Christmas Bomber and Miranda
February 4, 2010 · 1 Comment

Bad timing for David Rivkin, who used Tuesday’s Wall Street Journal for one of his monthly attacks on some Obama policy. This time it was about the Christmas Day bomber, with Rivkin saying that not immediately sending the bomber into military detention was “an intelligence failure of massive proportions.” Too bad that the very next day, today, the exact same newspaper reported that the Christmas bomber is again talking to the FBI, providing “valuable intelligence.” This also damages the arguments of this guy and this woman. Look, there are valid reasons to say that terrorists should be viewed as wartime combatants rather than criminals. But claiming that we won’t get good information from terrorists held in the civilian legal system is clearly not a valid reason. And there is at least one good reason not to throw them in military brigs: it creates an appearance of the US being at war with Islam, which appearance seems to generate more terrorists. Finally, I would like to note, again, that George W. Bush also tried terrorists in civilian courts. For Republicans to now claim that this approach is terribly weak is to be hypocrites of the worst sort. Which is, I supposed, to be expected from politicians.
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http://www.defenddemocracy.com/index.php?option=com_displayevents&Itemid=362&eventid=230

From Inside the Beltway - Wash Times EDGING FORWARD

The plot to bomb a jetliner on Christmas Day has strengthened the assertion that there are scores of terrorists lying in wait for their opportunity to do harm to America. That means the argument over civil trial versus military tribunal for future perpetrators is bound to continue. Ergo, inquiring minds want to know: In which direction is the Obama administration likely to go with this?

"The disputes and acrimony over this kind of issue is not unique to this administration. Some people within it clearly 'get it.' " Others do not, and find themselves doing something for legal reasons, then for political reasons they must defend it," David Rivkin Jr. tells Inside the Beltway.

Mr. Rivkin served as a Justice Department and White House lawyer in the Reagan and George H.W. Bush administrations, and is a Washington, D.C., lawyer and co-chairman of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies.

"There is a phrase, 'Reality bites.' Well, reality is now biting the Obama administration. I think it is inevitable that they move more and more to a military embrace, towards the laws of war paradigm, a mainstay of the Bush administration that has largely been abandoned by this one," Mr. Rivkin says.
BLUE HUE
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Point of View radio talk show

http://www.blubrry.com/pointofview/640960/point-of-view-radio-talk-show-for-february-4-2010/

A bipartisan revolt is brewing in the Senate over the Obama administration's handling of accused Detroit bomber Umar Farouk Abdulmutallab. A small but growing number of lawmakers is asking the president to undo what many regard as the disastrously wrong-headed decision to grant Abdulmutallab full American constitutional rights. Once he was told he had the right to remain silent, the accused terrorist stopped talking to U.S. investigators, possibly denying them valuable intelligence about the threat from al Qaeda.

 

The revolt started last week when top administration counterterrorism officials testified they had not been consulted about the decision to read Abdulmutallab the Miranda warning and give him a court-appointed lawyer. Several senators were aghast, including Homeland Security Committee Chairman Joseph Lieberman, the committee's ranking Republican Susan Collins, and the Judiciary Committee's ranking Republican Jeff Sessions. How could the Justice Department have done something so consequential without even consulting the administration's own experts on terrorism and intelligence?

 

The anger on Capitol Hill grew over the weekend, when the Associated Press reported that local FBI agents in Detroit were allowed to question Abdulmutallab for just 50 minutes before he went into surgery for several hours. During that time, Justice Department lawyers in Washington intervened and Abdulmutallab was later read his Miranda rights.

 

That was bad enough, but what really made lawmakers angry was when White House press secretary Robert Gibbs, appearing on "Fox News Sunday," insisted the 50-minute interrogation had been entirely sufficient for investigators to learn everything they needed to know about the al Qaeda plot to bomb Northwest Airlines Flight 253.

 

"You really don't think that if you'd interrogated him longer that you might have gotten more information?" asked Fox's Chris Wallace.

 

"Well, FBI interrogators believe they got valuable intelligence and were able to get all that they could out of him," Gibbs said.

 

"All they could?" Wallace asked.

 

"Yeah," Gibbs said.

 

That was it for some lawmakers. "It is now clear beyond doubt that the administration squandered an invaluable opportunity to gather intelligence from a captured terrorist fresh from al Qaeda's operation in Yemen," Sessions said. "But this weekend, the president's spokesman actually argued that the right call was made and that fifty minutes of interrogation was sufficient."

 

On Monday, Lieberman and Collins wrote to Attorney General Eric Holder, as well as top White House terrorism official John Brennan, saying the decision to give Abdulmutallab full American constitutional rights had been a serious mistake, but that "the administration can reverse this error, at least to some degree, by immediately transferring Abdulmuttalab to the Department of Defense ... [which has] the authority and capability to hold and interrogate Abdulmuttalab and try him before a military commission."

 

Sessions agrees, and it's a suggestion more lawmakers are likely to support in coming days. But it raises a critical question: Once Abdulmutallab has been given the Miranda warning, can the administration take it back?

 

"Of course," says David Rivkin, a lawyer who served in the Reagan and Bush I administrations. "To the extent that the facts justifying his designation as an enemy combatant are there, you can always designate him as such. Miranda rights are relevant only to interrogations in the criminal justice system. If he were transferred to the military justice system, it wouldn't be taking those rights back -- it would be just irrelevant."

 

Others worry that it wouldn't be so easy. "The problem is, once you get them into the civilian system, the federal courts have made very clear that they're not going to let go easily," says Lee Casey, another veteran of the Reagan and Bush I administrations who has co-authored several articles with Rivkin. "While I think it would be a great idea, given how solicitous the courts have been of these detainees, I doubt the federal courts would cede jurisdiction."

 

Whatever the degree of difficulty, it is a fact that Abdulmutallab was recruited by al Qaeda, trained by al Qaeda, and sent to the United States by al Qaeda. It's reasonable to assume he could be an important source of information about the terrorist organization. For Lieberman, Collins and Sessions, that makes it worth the effort.

 

You might think the president would agree. After all, he has said specifically that the United States is "at war against al Qaeda." But changing Abdulmutallab's status would be an admission that his administration got it wrong when confronted by an al Qaeda terrorist determined to kill Americans. And it's not at all clear that that is something the president is prepared to do.

 

Byron York, The Examiner's chief political correspondent, can be contacted at byork@washingtonexaminer.com. His column appears on Tuesday and Friday, and his stories and blog posts appears onwww.ExaminerPolitics.com ExaminerPolitics.com.

Read more at the Washington Examiner: http://www.washingtonexaminer.com/politics/Senators-rebel-over-treating-terrorist-as-civilian-82641967.html#ixzz0eITYEn7a