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Just over a week ago, the Supreme Court struck down a bipartisan agreement governing the treatment of terror suspects held at Guantanamo Bay. Defying the will of the executive branch and Congress, the court ruled that those detained in custody can challenge their status in American courts. Writing for the 5 to 4 majority, Justice Anthony Kennedy opined, “the laws and Constitution are designed to survive, and remain in force, in extraordinary times.”
Justice Antonin Scalia fiercely dissented, arguing that the United States was “at war with radical Islamists,” and that the ruling “will almost certainly cause more Americans to get killed.”
“The nation will live to regret what the court has done today,” he warned.
So Andrew McCarthy is nothing if not timely with the publication of his new book, Willful Blindness: A Memoir of a Jihad. Within its pages he wrestles with the legal issues surrounding the war on terror.
McCarthy, a former federal prosecutor, is perfectly suited to make the case that the criminal justice system is not designed to handle terrorism cases. Having contributed to the government’s case in some of the most well-publicized terror trials of the 1990’s – including the plot to destroy New York City landmarks, the embassy bombings, and the planned Millennium attack at Los Angeles Airport – he should well know.
Willful Blindness is part McCarthy’s recollection of the terror trials (primarily the Landmark plot, for which he was lead prosecutor) and part tour of radical Islam. Readers will find both aspects enlightening.
McCarthy berates the government and the general public for failing to take the first World Trade Center bombing seriously. Considering that 120,000 people were milling about the area on that infamous Friday in February 1993, he terms it a “miracle” that only seven lives were lost in the attack. The downside to the low fatalities, though, was that few people recognized the bombing for what it was: The opening salvo in a war with Islamist terror.
Instead, the Clinton administration treated Islamic jihadists as it would treat a domestic terrorist or terrorist group, responding to attacks with indictments and subpoenas. In the eight years between the World Trade Center’s first bombing and its ultimate destruction, there were convictions of exactly twenty-nine terrorists. Twenty-nine. If the jihadists were viewing the conflict as a war, the Justice Department treated it like an episode of Matlock.
The terrorists were – and are – savvy to exploit this intellectual divide. McCarthy quotes one jihadist instructing another on how to act if taken into custody. “Tell them, ‘I don’t know. I’m not talking to you. Bring my lawyer,’” he said. “‘My lawyer’ - that’s it! That’s what’s so beautiful about America.”
This approach was not without its successes, of course; McCarthy’s prosecution of Omar Abdel-Rahman (aka the “Blind Sheikh) was masterful and won him commendations from Justice’s top brass. But these accomplishments came despite the judicial framework, not because of it. In locking up the Sheikh, for instance, McCarthy relied on a Civil War-era statute outlawing “seditious conspiracy.” It goes without saying that the law was a bit behind the times.
Readers might be surprised at one lawyer who makes a cameo appearance. While remaining noncommittal on his role in the Valerie Plame leak scandal, McCarthy has nothing but high praise for Patrick Fitzgerald’s anti-terror acumen. He and U.S. Attorney Mary Jo White have “collectively done more and sacrificed more to fight the jihadist menace plaguing our country than any combination of Americans outside our heroic armed forces.” McCarthy credits Fitzgerald with flawlessly prepping the expert witness in the Blind Sheikh case, providing testimony that helped put the terrorist and his accomplices behind bars.
McCarthy looks beyond the legalese to see the big picture, too. While researching his case for the prosecution, he delved into Islamic texts to better understand and counter his adversaries. He speaks bluntly about what he discovered.
“The Qur’an and the Hadith command violence,” he writes. “Even if you were to conclude that this is a gross oversimplification that distorts the mythical ‘true Islam,’ that would be irrelevant. Millions of Muslims believe it to be true. Terror victims are not any less dead if those Muslims are mistaken.”
While acknowledging that hundreds of millions of Muslims practice their faith peacefully, McCarthy notes that Islam has inherent contradictions with Western liberalism. It rejects many aspects of Western self-determination, freedom of choice and equality under the law. It’s these elements that give jihadists some of their theological firepower.
Before the first World Trade Center bombing, we may have been able to plausibly claim that we weren’t aware of the depth of the threat from radical Islam. Fifteen years and countless attacks later, ignorance is a tough sell.
After finishing McCarthy’s account, it’s impossible.
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