"Let's set aside Koh's disputed comments about the possible application of Sharia law in American jurisprudence. The pick is alarming for more fundamental reasons having to do with national sovereignty and constitutional self-governance.
"What is indisputable is that Koh calls himself a 'transnationalist.' He believes U.S. courts 'must look beyond national interest to the mutual interests of all nations in a smoothly functioning international legal regime. ...' He thinks the courts have 'a central role to play in domesticating international law into U.S. law' and should 'use their interpretive powers to promote the development of a global legal system.'
"Koh's 'transnationalism' stands in contrast to good, old-fashioned notions of national sovereignty, in which our Constitution is the highest law of the land. In the traditional view, controversial matters, whatever they may be, are subject to democratic debate here. They should be resolved by the American people and their representatives, not 'internationalized.' What Holland or Belgium or Kenya or any other nation or coalition of nations thinks has no bearing on our exercise of executive, legislative, or judicial power.
"Koh disagrees. He would decide such matters based on the views of other countries or transnational organizations - or, rather, those entities' elites."
"What's missing from all this sanctimony and censure is any acknowledgement of the circumstances under which the CIA interrogations took place, let alone the successes with which they have been credited. That may be a good way to score cheap political points. It doesn't add much to the public discourse.
"Context matters. Actions that are indisputably beyond the pale under normal conditions -- waterboarding a prisoner, for example -- can take on a very different aspect when conditions are abnormal, as they surely were in the terrifying wake of 9/11.
"...According to Deputy Assistant Attorney General Steven Bradbury's memo dated May 30, 2006, 'intelligence acquired from these interrogations has been a key reason why al-Qaeda has failed to launch a spectacular attack in the West' since 9/11. Senior terrorist Khalid Sheikh Mohammed at first 'resisted giving any answers' when asked about future attacks, but waterboarding led him to divulge 'specific, actionable intelligence.' One result was the foiling of al-Qaeda's planned 'Second Wave' -- a 9/11-like plot to crash a hijacked airliner into a Los Angeles skyscraper.
"But what if it hadn't been foiled? Suppose the CIA had been denied permission to use brutal interrogation tactics, and al-Qaeda had consequently gone on to murder thousands of additional victims in California. What kind of conversation would we be having once it became known that the refusal to subject KSM to the waterboard had come at so steep a price? How many of those now blasting the Bush administration for allowing torture would be blasting it instead for not preventing a second bloodbath?"
http://www.jeffjacoby.com/5370/a-tortured-debate-over-the-torture-memos
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Now it's possible that this move to prosecute will go nowhere. Obama, after denials that this path would be pursued, put the issue in the hands of Attorney General Eric Holder, who has now said, "We owe the American people a reckoning.”
Johnson claims, "Obamas's move carries out the marching orders of his party's far-left base, MoveOn.org, which boasted it 'bought' the Democratic Party in 2004," and is now pushing for prosecution.
But Admiral Dennis Blair, Obama's own national intelligence director, has written:
“I like to think I would not have approved those methods in the past, but I do not fault those who made the decisions at that time...
"We did not have a clear understanding of the enemy we were dealing with. Our every effort was focused on preventing further attacks that would kill more Americans."
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There are two sources for distress here. One is the holier-than-thou, retributive attitude -- the very antithesis of the spirit of unifying the nation which was at the heart of Obama's campaign. (I'm being told by Americans in the know that the entire mood in Washington now is one of weakening and belittling Republicans. So much so that it's barely a two-party system in operation. There's a meanness in the air.)
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The other source of distress is a policy that -- unequivocally! -- has now put Americans at greater risk of another terrorist attack.
I am keenly aware that a democratic nation must strike a balance between maintaining its values with regard to human rights and humane behavior, and protecting its citizens from enemies. And I know that not everyone agrees as to how that balance must be struck.
But I have the sense that the current administration, intent on a good guy approach, is oblivious to the seriousness of the Jihad threat leveled against the West and is letting its guard down.
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Johnson tells the story of what happened to FBI agent Harry Samit in August 2001. Highly suspicious of one Zacarias Moussaoui, he sent 70 e-mails to the FBI's National Security Law Unit (NSL) begging for permission to search this guy's laptop. The guidelines in place at that time -- which were actually stricter than what the law required -- had been established during the Clinton administration. Samit's request was denied.
Later it was learned that this computer contained the plans for 9/11.
Bush subsequently, and in response to 9/11, changed the way the game was played. Did he change it too much? Was there too much harshness? I'm not about to judge this now. What I do know is that if the rules had been different in August 2001, there would have been no 9/11.
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Protection against an enemy can bring about a pyrrhic victory -- in which a nation changes so much, so abandons its protection of human rights, that the very nature of that nation is changed.
But it is also the case that the enemies who would destroy America count on use of the American system to protect them even as they plot against the nation where they are kept safe. This is an obscene perversity in the end.
And so I advise Americans to consider this issue with the greatest of gravity. And to remember that indeed there really IS an enemy set on destroying America.
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see my website www.ArlenefromIsrael.info
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