National Review’s Andrew McCarthy helped prosecute the terrorists who plotted and conducted the first bombing attack on the World Trade Center in 1993, putting several radical extremists behind bars. Since then, he has become a must-read on counterterrorist policy and a critic of the impulse to fight jihadis through the American court system. The Obama administration knows this and extended an invitation to McCarthy to a roundtable on counterterrorist policy, which McCarthy has politely — and publicly — declined:
This letter is respectfully submitted to inform you that I must decline the invitation to participate in the May 4 roundtable meeting the President’s Task Force on Detention Policy is convening with current and former prosecutors involved in international terrorism cases. An invitation was extended to me by trial lawyers from the Counterterrorism Section, who are members of the Task Force, which you are leading.
The invitation email (of April 14) indicates that the meeting is part of an ongoing effort to identify lawful policies on the detention and disposition of alien enemy combatants—or what the Department now calls “individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.” I admire the lawyers of the Counterterrorism Division, and I do not question their good faith. Nevertheless, it is quite clear—most recently, from your provocative remarks on Wednesday in Germany—that the Obama administration has already settled on a policy of releasing trained jihadists (including releasing some of them into the United States). Whatever the good intentions of the organizers, the meeting will obviously be used by the administration to claim that its policy was arrived at in consultation with current and former government officials experienced in terrorism cases and national security issues. I deeply disagree with this policy, which I believe is a violation of federal law and a betrayal of the president’s first obligation to protect the American people. Under the circumstances, I think the better course is to register my dissent, rather than be used as a prop.
One has to think that McCarthy saw himself in the same position as Mary Ann Glendon at Notre Dame — given a position to be exploited, not to be heard. The positions of the Obama administration have been well-known and well-established for more than two years now anyway. A “roundtable” gives the appearance of openness but almost no chance at all of affecting policy in this DoJ or administration. The only thing McCarthy’s presence would provide is a beard of bipartisanship while Obama and Holder pursue the policies on which Obama explicitly campaigned.
Besides, these days attorneys have to take care what advice they offer, lest they be publicly pilloried, or worse, as McCarthy makes clear in this zinger:
Moreover, in light of public statements by both you and the President, it is dismayingly clear that, under your leadership, the Justice Department takes the position that a lawyer who in good faith offers legal advice to government policy makers—like the government lawyers who offered good faith advice on interrogation policy—may be subject to investigation and prosecution for the content of that advice, in addition to empty but professionally damaging accusations of ethical misconduct. Given that stance, any prudent lawyer would have to hesitate before offering advice to the government. …
Given your policy of conducting ruinous criminal and ethics investigations of lawyers over the advice they offer the government, and your specific position that the wartime detention I would endorse is tantamount to a violation of law, it makes little sense for me to attend the Task Force meeting. After all, my choice would be to remain silent or risk jeopardizing myself.
What would happen if McCarthy defended Jay Bybee on this panel? Would Congress demand action from the Bar against McCarthy as well? No one seems to be calling for the disbarment of Obama and Holder, despite their acting against the rule of law in these cases:
I am similarly powerless to stop the administration from admitting into the United States such alien jihadists as the 17 remaining Uighur detainees. According to National Intelligence Director Dennis Blair, the Uighurs will apparently live freely, on American taxpayer assistance, despite the facts that they are affiliated with a terrorist organization and have received terrorist paramilitary training. Under federal immigration law (the 2005 REAL ID Act), those facts render them excludable from the United States. The Uighurs’ impending release is thus a remarkable development given the Obama administration’s propensity to deride its predecessor’s purported insensitivity to the rule of law.
I am, in addition, powerless to stop the President, as he takes these reckless steps, from touting his Detention Policy Task Force as a demonstration of his national security seriousness. But I can decline to participate in the charade.
If the Obama administration wants Andy’s input, they can read his book, Willful Blindness. If they’re interested in diversity of opinion, they can prove it by making appointments that demonstrate a different policy direction. “Roundtables” are nothing more than window dressing, and McCarthy rightly rejects this effort to exploit him for a bit of political cover. He’s obviously more effective staying where he’s at.