We all remember Jo, the Fat Boy in Dickens, who was always exclaiming: “I wants to make your flesh creep.”
The Obama Administration does not intend to make your flesh creep, to make the goosebumps of fear rise as you recognize the calamitous lapse, more than a lapsus calami, of judgment, not a corrigible typo but the text itself, based on a view of the world and “our values” that may at this point be uncorrectable and incorrigible.
Start with this article from The Telegraph of London.
No one has made your flesh creep. But you feel uneasy, queasy, something akin to sea-sickness because the ship of state turns out to be in certain respects a ship of fools, with “S. S. Naufragium” on its bow.
Who is Slade Gorton, and what does he know? Slade Gorton, this former Senator from Washington, this member of the 9/11 Commission, says “he [Umar Farouk Abdulmutallab] was singing like a canary, then we charged him in civilian proceedings, he got a lawyer, and shut up.” Slade Gorton finds the actions of the Administration “incomprehensible.” But, you may insist, isn’t Slade Gorton a Republican, and therefore in thrall to Fox News, and Roger Ailes, and therefore dismissively “right-wing”? No. Slade Gorton’s roots are in Cape Ann, in Gloucester; the Gortons who produce those fish fingers were his family. He is a New England Republican, even if he went out West to seek his fortune. He is no more “right-wing” than is Olympia Snowe, or Edward Brooke. In other words, not “right-wing” at all.
And who is Michael Mukasey, the one who insists that “Abdulmutallab could have been held and interrogated in military custody under existing US legislation before a decision was taken whether to charge him before a military tribunal or a civilian court” and who further says “that it was crucial to gain intelligence from him immediately as details about locations, names and other plots is subject to rapid change”? Who is this Michael Mukasay, who dares to dismiss “the argument by John Brennan, Mr Obama’s chief counter-terrorism adviser, that investigators will garner valuable data during any plea-bargaining talks”?
Michael Mukasey is a former Attorney General of the United States, a lawyer with many decades of experience. And who is John Brennan, “Mr. Obama’s chief counter-terrorism adviser,” who thinks, apparently, that the government is even better off in its search for information about terrorists when it treats this particular terrorist in question – Umar Farouk Abdulmuttallab – as an ordinary criminal, and extending to him such Constitutionally-protected rights (for citizens) as counsel, and the right to remain silent? He is not only without the decades of experience as a lawyer (for defense and prosecution) and as a judge, but has no legal experience whatsoever. He’s never prosecuted anyone. He’s not even a lawyer. Yet John Brennan, as “Mr. Obama’s counter-terrorism chief,” claims that government investigators would “garner valuable data during any plea-bargaining talks.” This claim was always fantastical.
What de we know about Umar Farouk Abdulmuttallab? We know he is 23 years old, and by all appearances a naÃ¯f. We know he has led a sheltered life as the son of a very rich Nigerian banker, but that he clearly did not enjoy that wealth, and probably disapproved of how it was acquired. We know he was easily manipulated by the Arabs in Yemen who saw him, like Richard Reid, the kind of person who could be manipulated. And because Umar Farouk Abduluttallab was only 23, and clearly a Nigerian tool being manipulated by the Arabs who supplied him with the explosive and welcomed his desire to be a martyr. Once his manipulation was made clear to him, he quickly began to reveal details – details, for example, about the twenty-odd other bombers being trained, so he has indicated, in Yemen. He was a tool used by others — which does not excuse him, and should not lighten his punishment. He was not able to withstand questioning, and as former Senator Slade Gorton (a member of the 9/11 commission) notes, “he was singing like a canary.”
Slade Gorton, as a member of the 9/11 Commission, learned a lot about Muslim terrorism and what makes terrorsists tick. He understands that a war is being waged on the United States and Americans, as on other Infidel nation-states and peoples, and does not understand why, in this war, those attempting to blow up American citizens, in attempted mass-murder, should be treated as if they were merely criminals, rather than war combatants.
Barack Obama used to teach, as an adjunct, Constitutional Law at the University of Chicago. For those whose shtick is ostentatious thoughtfulness, the attempt to join the class in a collective march toward greater understanding, not through the mental diktat of a classroom despot, but by means maieutic, where students themselves are prodded by questions, and then more questions, from a professor well-versed in the Socratic method, there is nothing quite like teaching a course in Constitutional Law. The pacing back and forth, the furrowed brow, the speech at times halting to demonstrate thoughtfulness — for if phrases came too quickly, that would indicate, for many, lack of thoughtfulness (as if one could not have thought things all out, by oneself, to oneself, in advance). In other words, to become Man Thinking, the professorial peripatetic version of Rodin’s “The Thinker,” there is nothing at a law school quite like teaching Constitutional Law. Leave the Uniform Commercial Code, leave the Internal Revenue Code and the Regs to others; for Barack Obama, Constitutional Law would fit the bill.
And Obama surely has, from the long history of Constitutional adjudication, a few lines that he recalls with particular fondness.
I have a few – three exactly — myself. The first is from Marbury v. Madison, 1806, a celebrated case in which the Chief Justice John Marshall laid the basis for the doctrine of Judicial Review when he claimed for the Supreme Court the sole right to be arbiter of what is, or is not, Constitutional, and further declared that whatever the Court declares unconstitutional cannot stand. The line of Marshall’s that has entered history is: “it is a Constitution we are expanding.”
A second line in American Constitutional Law is not to everyone’s taste, but I find its tartness and hardness, like that of a green apple, bracing. The tone of the line, in these great and treacly times, comes as a chock, almost as if from a place we no longer recognize, though it was perfectly matter of fact. It is Oliver Wendell Holmes in Buck v. Bell (1927), a case challenging the constitutionality of a state law, according to which repeat criminal offenders of low I.Q. could be subject to forced sterilization. Holmes declared, in a way that some find horrifying, and others do not, that “three generations of imbeciles are enough.”
A third line that I like, one that I find always useful – though I admit that it is hard to better “three generations of imbeciles are enough” for sheer, everyday usefulnesss – is a line by Mr. Justice Jackson, in a dissent in Terminiello v. City of Chicago (1949). This was a case about a rabble-rouser named Terminiello, who claimed to be a Catholic priest (of the Father Coughlin or Father Feeney excommunicable variety), and gave a speech against his predictable enemies — “Communistic Zionist Jews, FDR, Queen Eleanor (Roosevelt),” with Eleanor Roosevelt being described as “one of the world’s communists.”
In the Terminiello case, protesters demonstrated against him, there was violence, and Terminiello was charged with disorderly conduct. At the trial, the judge told the jury that Terminiello could be found guilty if that jury concluded that his speech was sufficiently and deliberately inflammatory so as to cause the unrest.
He was convicted and his lawyers appealed. In a 5-4 decision the Supreme Court ruled for Terminiello, claiming the judge had infringed on the defendant’s right of free speech. The case appears when students study the “fighting words” exception to freedom-of-speech guarantees.
Mr. Justice Jackson dissented. He was not against the expression of wildly unpopular views and knew perfectly well that they needed to be protected, but he said that Terminiello’s speech, his agitprop, had gone beyond the bounds of protected speech and the state had a right to prosecute him. He ended his dissent with these words: “There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
Now Mr. Justice Jackson, Robert Jackson, had before being appointed to the Supreme Court, and just a few years before the Terminiello case been a judge at the Nuremberg War Crimes Trials. He had seen, up close, what extreme moral disorder brought about, and he had seen the ineffective response of the democratic West, and even of those within Germany, whose response had been insufficient until it was too late. He was against the “doctrinaire logic” untempered by “practical wisdom” that he felt five of the judges in the particular circumstances of the Terminiello case had exhibited.
And that phrase – “The Constitution is not a suicide pact” – has been a favorite of mine for years. And perhaps it will be yours, too. People have to be reminded that none of the freedoms that the First Amendment is absolute, that always and everywhere “practical wisdom” needs to temper the “doctrinaire.” It is an Article of Faith, apparently, for the Obama Administration that treating Muslim terrorists not as war combatants but as ordinary criminals, and even subjecting the people of New York to what will be a hideous circus, the trial of those connected to the 9/11 attacks, like Khaled Sheikh Mohammed, will be True To Our Values and Also A Teaching Moment. No, it will be true not to “our values” – the values, say, of a more intelligent America, the America represented by John Marshall, Oliver Wendell Holmes, and Robert Jackson, but also Slade Gorton and Michael Mukasey. It will be true to the “values” of the Obama Administration, filled with those who leave burnt offerings on the altar of the Idols of the Age.
Now one of the things Umar Farouk Abdulmutallab was “singing like a canary” about, apparently, were the names, and the training, and the plans, of other terrorists-in-posse in Yemen. Surely it would have been good to find out as much as he was wiling to say, without a lawyer and without that “right to remain silent” business applied to a terrorist. For he is part of a gigantic, and never-ending, war – Jihad through violence, through qitaal and terrorism – not merely a criminal who may have committed a crime, or a few crimes. John Brennan’s insistence that in the “plea bargain” we will learn — oh, learn all kinds of things, receive a treasure-trove of information that we could not possibly have received had we not given Umar Farouk Abdulmuttallab a lawyer, and had that lawyer told him to promptly shut up — may be put to the test.
What test? Well, if we do not acquire, in that plea-bargaining in which John Brennan places so much faith, the information that we might have acquired had Umar Farouk Etc. not had a lawyer, and simply had continued to “sing like a canary,” it is possible that one or two or more of those terrorists-in-training about whom the American government might have found out, but now will not find out, will someday try to kill more Americans, on land, or sea, or air. And if that terrorist, or if those terrorists, about whom we might have known, had such people as Slade Gorton and Michael Mukasey or Mr. Justice Jackson or Mr.Justice Holmes have been in power, manage or manages to kill Americans as a result of the insensate lack of practical wisdom on the part of high officials in the Obama administration, then they will have made another sort of burnt offering to the Idols of the Age. This burnt offering will consist of the bodies of Americans who did not have to die, whose deaths might have been prevented, had other people, with deeper understandings of the world, have been in charge of protecting and instructing us. And what will the pollyannas in power then say to explain themselves?