Defenseless in the Face of our Enemies:
What Keeps America from Protecting Itself from Radical Islam
(Andrew C. McCarthy III, June 22, 2016)
Transcript available below
Our legal architecture for fighting the infiltration of radical Islam is stuck in a pre-1993 Cold War framework. That framework prohibits the exclusion of aliens on the grounds of ideological animus against the U.S. as opposed to terrorist activities. We face an ideology that promotes acts of mass terror and thrives on resistance to assimilation.
The State Department’s strategy for countering violent extremism issued a week ago is, as usual, absent any mention of Islam. What’s more, the U.S. continues to suffer from the lack of any institution within the government from which to actually execute such a strategy, were we to have a sensible one, in terms of the war of ideas.
About the speaker
Andrew C. McCarthy III is a former assistant U.S. attorney for the Southern District of New York. He led the 1995 terrorism prosecution against Sheikh Omar Abdel Rahman and eleven others. The defendants were convicted of the 1993 World Trade Center bombing and of planning a series of attacks against New York City landmarks. He also contributed to the prosecutions of terrorists who bombed U.S. embassies in Kenya and Tanzania. He resigned from the Justice Department in 2003. He is a contributing editor of National Review and a senior fellow at the National Review Institute.
McCarthy is the author of The Grand Jihad: How Islam and the Left Sabotage America, How Obama Embraces Islam’s Sharia Agenda, Willful Blindness: A Memoir of the Jihad, Spring Fever: The Illusion of Islamic Democracy, and How the Obama Administration Has Politicized Justice.
Robert R. Reilly:
At the beginning or the middle of the so-called Arab Spring, Andrew McCarthy diagnosed it correctly in his forecasts of what would happen next are spot on, particularly regarding Turkey.
So without further ado, he will address us on the subject of: Defenseless in the Face of our Enemies: What Keeps America from Protecting Itself from Radical Islam. Please join me in welcoming Andrew McCarthy.
Thank you all so much. I am honored to be here and I am particularly honored and humbled that so many people would come out in such awful weather. It was fine when I left New Jersey. You almost never say that, but when I got into Gomorrah by the Potomac, the skies opened up, so I am delighted that you are all here and really humbled by it.
On the subject that Bob mentioned, being defenseless in the face of our enemies, no sooner did I sit down and try to think about what to say than jihadists accommodated us once again two weeks ago in Orlando, Florida where in the wee hours of the morning a gunman opened fire in a gay nightclub that was teeming with revelers.
After killing and wounding scores of people, he took hostages in a restroom. He began calling police and media outlets, began crafting social media posts all for the purpose of announcing what was already clear to the denizens of the nightclub, who had heard him screaming Allahu Akbar, which means Allah is greater, as he fired shot after shot.
The message was, clearly, Omar Mateen was a stealth Muslim militant. He was an adherent of radical Islam who committed his atrocity in furtherance of its ongoing jihad against America and the West. He took time in the midst of that to make bayah, which is the pledge of allegiance to Abu Bakr al Baghdadi, the emir of the Islamic State terror network and its proclaimed Caliphate.
By the time the police barged in three hours later and killed Mateen in a firefight, he had killed 49 people and wounded another 53. It should have been possible to have seen Mateen coming. He was a first generation American citizen, born in this country to immigrant parents from Afghanistan, raised in a troubled household in which the father is a visible and ardent supporter of the Taliban, the fundamentalist jihadist group that ruled Afghanistan in the ’90s, harbored Al Qaeda as it plotted and executed the 9/11 attacks, and to this day wages war against American troops as it fights to retake that country.
Mateen was 29 when he committed his mass murder attack. He was repeatedly suspended for fighting throughout his childhood school years. Academically, he had great difficulty. Despite being nominally American from birth, he was mired for years in English programs for students who speak other languages in the home. His rantings during the attack indicate that he considered Afghanistan to be his home and that he identified first and foremost as a Muslim, as a member of the worldwide ummah not a citizen of the United States, the nation he volunteered to levy war against as his would be ISIS masters exhort their acolytes to do.
Mateen was investigated not once, but twice by the FBI in the three years prior to turning the Pulse nightclub into an abattoir. The first time was because while working as a security guard he claimed ties to both Al Qaeda and Hezbollah, two infamous jihadist organizations that killed more Americans than any other. Mateen also claimed mutual acquaintances with the Tsarnaev brothers who bombed the Boston marathon. He spoke of longing for a martyr’s death, meaning he wanted to be killed while waging jihad against Americans.
The FBI further learned that within a two-year period, starting in 2011, Mateen had made not one, but two pilgrimages to Islamic sites in Saudi Arabia. In Islamic terms, both pilgrimages were considered lesser ones, umrah, which is not required and can be done any time of year as opposed to Hajj, which all physically and financially capable Muslims are required to make at least once in a lifetime during the last month of Islam’s annual lunar calendar.
An investigator open to drawing commonsense conclusions about Mateen’s potential attachment to Islamic extremism or Sharia supremacism would be apt to know that Mateen’s trips, which encompassed eighteen days and included a detour to the United Arab Emirates, were voluntary immersions into fundamentalist, Islamic societies in which Sharia is rigorously enforced and jihad is known to thrive.
Many Muslims never make Umrah at all. To make it twice in a short spate of time is highly unusual, but as we shall see, the FBI, through little fault of its own, is encouraged to shun commonsense conclusions about Islamic ideological attachments. The investigation was closed because agents concluded Mateen was not a threat, he was simply making outlandish, belligerent claims for the purpose of spooking his coworkers. And to be fair, that theory was consistent with Mateen’s provocative and anti-social behavior throughout his childhood.
The second investigation of Mateen was indirect. The actual focus of the FBI’s probe was Moner Mohammad Abu Salha, who was believed to be the first American Muslim to conduct a suicide bombing as part of the Islamic State’s jihad in Syria. It turns out that Abu Salha attended the same Orlando area mosque frequented by Mateen.
It is worth pausing over that for a moment. The Washington Post‘s report I thought was particularly telling. It informs us that Mateen and Abu Salha, and this is a quote, “Both prayed at the same Fort Pierce, Florida mosque.” This is consistent with a quarter century of government, media, academic, and other opinion elites’ sculpting of public perception. Islam, we are to believe, is a religion just like any other, and a mosque, therefore, is a house of worship like any church, temple, or synagogue in the West, a sanctuary where believers gather for communal prayer.
Of course, to the student of fundamentalist Islam and its Sharia-supremacist teaching, this is sheer nonsense. There is a reason why much of the jihadist violence in the Middle East and its environs occurs on Fridays. Jumu’ah, the Muslim Sabbath, on which believers pour out of mosques after being treated to the imams’ political diatribes and incitement to jihad against Western imperialism.
While there are various ways of interpreting Islam, many of them benign, many of them reformist, Sharia supremacism is not so much a religion as a radical political ideology with a religious veneer. It does not recognize a division between mosque and state, between spiritual and political or civic spheres of life. Consequently, in this aggressive, fundamentalist construction of Islam, the mosque is not a mere house of worship where believers gather strictly to pray. Far from it, the mosque is the political and ideological center of what in the West is an anti-assimilationist movement bent on conquest, not prayerful pluralism.
Hassan al-Banna, the founder of the Muslim Brotherhood, the world’s most influential, most sophisticated Sharia-supremacist movement, taught a far-sided form of ground-up revolution. It would plant its flag and grow outward in enclaves, small towns, and eventually, big cities, districts, and counties across the globe. And where would it plant its flag? Every place it sought conquest.
Banna instructed that the mosque and its companion, the Islamic community center, would be as he put it, the access of the movement, every place where the movement took root. Nor need an American investigator be steeped in Muslim Brotherhood doctrine to grasp this fact, however much those of us with eyes to see might wish that more American investigators were steeped in Muslim Brotherhood ideology.
In the quarter century since I prosecuted the jihadist cell that bombed the World Trade Center in 1993, and plotted unsuccessfully to conduct simultaneous strikes against iconic New York City landmarks, the Justice Department has indicted and tried numerous terrorism cases. In these prosecutions, the hub is invariably the mosque. To take my case as a typical example, and it was typical, we proved that the mosque was used for jihadist radicalization, recruitment, fundraising, training, plotting, and in addition, it served as a safe space for the storage and transfer of firearms.
Why were jihadists so brazen in this regard? Because while our government consciously avoids the straightforward tenets of Sharia supremacism, Muslim militants go to school on the West. They know that heedless of what courtroom proof shows and what commonsense says, our opinion elites stubbornly cling to the depiction of Islam as a monolithic religion of peace in which the mosque is merely, invariably, a place of prayer.
In the second investigation in which the FBI crossed paths with Mateen it concluded that Abu Salha, the suicide jihadist, were passing acquaintances at best, that their connection to the same house of worship was at best happenstance. Still, in the course of the investigation the Bureau stacked new troubling facts atop the Mateen intelligence hole that had already been compiled. A witness told investigators that Mateen had been a devotee of videos featuring the late Al Qaeda firebrand, Anwar al-Awlaki, a jihadist who, before finally being killed by a U.S. drone strike in Yemen, mysteriously slipped through the FBI’s net several times over the years, beginning with his apparently conspiratorial meetings with some of the 9/11 suicide hijackers.
Moreover, it turned out that Mateen had enrolled in an online Islamic seminary run in Orlando by Marcus Robertson, a Muslim militant who had been known to the FBI since the early 1990s when he served as a sometime bodyguard of the blind Sheikh, the leader of the jihadist cell in my aforementioned terrorism prosecution. Back in those days, Robertson was the leader of a violent gang that robbed banks and post offices in order to underwrite the jihad. He was also described by one jihadist as a reliable source for explosives, detonators, and high-powered weapons. Robertson, however, served only a brief stint in prison, apparently because he agreed to become a covert agent for American intelligence agencies, a dubious arrangement that came to an abrupt halt in 2007 when Robinson physically attacked his CIA handler in North Africa and was ousted from the informant program.
Robertson resurfaced in Florida a year later, naturally, as an imam at yet another prayer center, the al-Ihsaan mosque, formally known as the Islamic Center of Orlando. Simultaneously, he reinvented himself as a Sharia scholar, running the Fundamental Islamic Knowledge Seminary, later re-dubbed the Timbuktu Seminary. This was the seminary in which Mateen enrolled. For now, the extent of the Robertson-Mateen connection is unknown. It is possible that Mateen merely enrolled in the online course and did not deal with Robertson personally.
It is known, however, that Robertson used the seminary at least once for the purpose of jihad recruitment. He and a co-defendant, a man by the name of Jonathan Pauly Jimenez, were convicted in a criminal case involving tax fraud, the purpose of which was to raise money to finance Jimenez’s paramilitary training in Africa. In connection with that case, which also involved a firearms offense, Robertson was incarcerated for nearly four years and proved alarmingly adept at converting inmates to his radical interpretation of Islam, yet because the Justice Department charged Robertson only with the tax offense, not a terrorism offense, a federal judge released him in mid-2015 on a sentence of time served.
According to the court, the FBI’s evidence that Robertson has terrorist ties was too flimsy to warrant the 10-year sentence urged by prosecutors. So, was Mateen inspired by Robertson just as he was clearly inspired by ISIS, just as there is good reason to believe he was inspired by Abu Salha? Do his roots in radical Islam run deeper, an ideology tracing back a millennium, that is his father’s attachment to Taliban fundamentalism, an ideology in which the brutalization of homosexuals is a core element firmly based in Islamic Scripture and deeply rooted in Sharia? Do we know the answers to these questions now? No, only further investigation will tell us for sure or will it?
Emerging reports indicate that the FBI may have missed some behavioral clues, such as a reported attempt to purchase body armor, that may have been sketchy and may have been hard to link to Mateen. I can assure you though, based on nearly 20 years as a prosecutor, such clues are missed in virtually every case. They tend to look a lot clearer in 20/20 hindsight than they were in real time. Jihadist atrocities are more common homeland occurrences now in the eighth year of Obama than they have ever been, even in the pre-9/11 Clinton years when terrorists bombed the World Trade Center and plotted against other targets but usually struck American facilities overseas [like] our Air Force dormitory in Saudi Arabia, our embassies in East Africa, the USS Cole destroyer in the port of Yemen.
While government officials and media analysts spout on about the phenomenon of lone wolf attacks by homegrown terrorists, it is more myth than fact. Repeatedly, we find out that the wolves in question were not lone and hidden but known and in plain sight, and they may strike at home, but the ideology that fuels them is foreign and hostile to the West. All that said, we should stipulate that the FBI is overwhelmed. There is a natural tendency after an atrocity occurs to focus myopically on the lead-up to the attack as if any relevant investigation must have been the only investigation in the world, but that is a gross distortion of reality.
Of the nearly 36,000 people who work at the FBI, less than 14,000 are investigative agents. National security is a crucial part of the Bureau’s portfolio, but the FBI is statutorily the lead investigative agency in virtually every category of criminal case in federal law. At most there are a couple of thousand agents assigned full-time to counterterrorism. Those numbers are multiplied somewhat by joint federal-state efforts like the Joint Terrorism Task Forces in several metropolitan areas across the country. Even so, there are over a thousand terrorism investigations ongoing in the United States. The FBI director indicates that there is activity that must be monitored in all 50 states.
Unless there are flashing neon signs of imminent attack, the small number of investigators can only spend so much time on any one suspect. Of course, that time can be maximized or wasted, depending on whether investigators know what they are looking for and whether they are permitted to look for it. Clearly, the FBI spent a lot of time on Mateen. It sent confidential informants to interact with him, conducted physical surveillance, covertly monitored some of his phone calls, and interviewed him face-to-face three separate times. It concluded that his bark was bad but his bite was non-existent. Honoring guidelines imposed on terrorism investigations, the FBI closed its case. That is, in addition to concluding that no charges should be filed, the Bureau further decided that additional monitoring of Mateen was not warranted. In retrospect this seems reckless, but the FBI is not incompetent. Far from it, the agency knew Mateen was worth a heavy investigative investment.
The problem is that the FBI answers to the Washington political class. The bipartisan Beltway has long ruled that advocacy of radical Islam is protected by the Constitution. It has long instructed its investigators, preposterously, that seditious beliefs and agitation are immune, not just from prosecution but from mere inquiry, What passes for the Obama national security strategy is known as ‘countering violent extremism.’
It exacerbates the problem.
CVE delusionally forbids the conclusion that radical Islamic ideology has any causative effect whatsoever on terrorist plotting. The FBI is in the impossible position of trying to conduct investigations that follow the facts wherever they lead while fearing that such investigations, by illuminating the logical progression from Islamic scripture to Sharia supremacism to jihadist terror will enrage its political masters.
Understand: nothing in the Constitution mandates this suicidal betrayal of national security. It flows from Washington’s lunatic concoction of an imaginary Islam, a belief system, the sole tenets of which appear to be peace and anti-violence. President Obama and the counsel he keeps, many of whom are connected to insidious Islamist organizations tied to the Muslim Brotherhood, insist that this anti-terrorist religion of peace is the only viable interpretation of Islam. We are not just to believe, we are pressured to endorse the fantasy that Sharia supremacism is a quote “false Islam.”
Its palpable mainstream status in the Middle East and elsewhere is not to be spoken of. The FBI is bound by guidelines promulgated by the Justice Department, most of which have been in place since the administration of President George W. Bush. They impose a caveat on every investigation. Let me read it, “These guidelines do not authorize investigating or collecting or maintaining information on United States persons solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of other rights secured by the Constitution or laws of the United States.”
Now, on its face this admonition should not be problematic. It instructs that agents may not investigate for the sole purpose of monitoring activities that are protected by federal law. Consequently, if agents have other legitimate purposes for investigating, such as preventing terrorist attacks or probing terrorism conspiracies, it is no bar to conducting the investigation that a mosque or a protest rally may come under scrutiny.
Political dissent and the exercise of religion are protected by the First Amendment, but this is a protection against being prosecuted merely for one’s words or religious observance. It is not a shield against investigation for criminal activities that are motivated by religion or political belief. Not only may one be investigated and prosecuted for criminal offenses that are motivated by one’s beliefs or speech, it has long been the law that evidence of one’s beliefs and speech, which may be highly relevant to proving criminal intent, may be admitted in a prosecution for those offenses.
Simply stated, if you are a Muslim who believes Sharia law must be imposed on society and you tell people that Allah commands the commission of violent jihad to impose Sharia, that belief and statement are admissible evidence if you are charged with bombing or terrorism conspiracy crimes. You are not being prosecuted for what you believe or what you said, you are being prosecuted for crimes, and the beliefs and the statements are merely evidence.
That being the case, there is nothing inherently wrong, much less constitutionally offensive, with the concept that radical religious or political beliefs should trigger investigations, especially if those beliefs are conveyed by aggressive language or association with other radicals or mosques known to endorse violent jihadism. It cannot be that evidence that is admissible to prove guilt of terrorism offenses is somehow insulated from an investigator’s suspicions about potential terrorism offenses. The goal of counterterrorism is supposed to be the prevention of jihadist attacks, not the hope that there may be a living terrorist or two still around to be tried only after Americans have been mass murdered.
In law enforcement, however, what matters most is not what the law allows the investigator to do, it is what the investigator’s superiors allow the investigators to do. This brings us to countering violent extremism. In essence, CVE holds that terrorism has nothing to do with Islam or even with Islamist ideology that reviles the United States. President Obama has conclusively proclaimed [that] Muslim American communities have categorically condemned terrorism, as if that were an incontestable proposition or one that told the whole story, Thus, the administration narrative continues. The real threat to our security is not Muslim plots against us, but our provocation of Muslims. By the Obama administration’s lights, our national defense measures following the 9/11 attacks have conveyed the misimpression that America is at war with Islam.
Now, remember we are in fantasyland here, so we are not supposed to pause at this point and asked what, pray tell, prompted the 9/11 attacks in the first place, what prompted the increasingly audacious series of attacks from the 1993 bombing of the World Trade Center, to the 2000 bombing of the USS Cole, all during those sensitive Islamophilic Clinton days, when we are to believe jihadists did nothing, America was at war with Islam. Instead of asking such impertinent questions, we are simply to accept the president’s say-so, that the key to our security is to partner with the leadership of Muslim communities, much of which just happens to be tied or heavily influenced by the Muslim Brotherhood.
In a major 2007-2008 prosecution known as the Holy Land Foundation case, the Justice Department proved that the Brotherhood financed Hamas, the terrorist organization, to the tune of millions of dollars. The same Muslim Brotherhood is the main subject of my 2010 book, The Grand Jihad. The title is lifted from an internal Brotherhood memo seized by the FBI and presented at the trial, a memo in which Brotherhood honchos, stationed in the United States, explained that their mission here is a grand jihad to eliminate and destroy Western civilization from within by sabotage.
Under countering violent extremism, we are to let these Islamist partners of ours train the police and let them be our eyes and ears in the Muslim communities because we all share the same interests, you see. We should rest assured that these Islamist leaders will alert us if there is any cause for concern. Everybody comfortable with that?
If it is possible, the practice of CVE is even more of a national security nightmare than the theory. This is probably best documented by my friend Stephen Coughlin in a recent and essential book, Catastrophic Failure: Blindfolding America in the Face of Jihad. Apart from being an exceptional lawyer, Steve is a trained military intelligence officer who has studied our enemies’ threat doctrine, Islamic supremacism, the classic Sharia-based Islam that is mainstream in the Middle East. The book is about how the United States government has systematically stifled the study of this doctrine since before 9/11. CVE is the paragon illustration of how the Obama administration has exacerbated this catastrophic failure, a failure that I have branded willful blindness since first encountering it as a prosecutor two decades ago.
As Coughlin demonstrates, CVE is no secret. For example, the Department of Homeland Security’s Office of Civil Rights and Civil Liberties, which is every bit as radical as the infamous Civil Rights Division in the Obama Justice Department, has worked with the National Counterterrorism Center to develop government agency training that, as they put it, brings together best CVE practices.
One product of this effort is a handy two-page instruction document, CVE Do’s and Don’ts. The ‘don’ts’ tell agents to avoid, among other things, this is a quote, “venturing too deep into the weeds of religious doctrine in history” or another quote, “examining the role of Islam in majority Muslim nations.” The guidance further admonishes – wait ’til you hear this, “Don’t use training that equates radical thought, religious expression, freedom to protest or other constitutionally-protected activity with criminal activity. One can have radical thoughts or ideas, including disliking the US government, without being violent. For example, trainers who equate the desire for Sharia law with criminal activity violate basic tenets of the First Amendment.” That is government guidance.
As we have already observed, this interpretation of the First Amendment is patent rubbish. Again, free expression principles protect Americans against laws that subject speech to penalty or prosecution, a protection, by the way, that the Obama administration seeks to deny to speech that is unflattering to Islam under a UN resolution that it jointly sponsored with several Islamic governments, but there is no free speech protection against having one’s words examined for intelligence or investigative purposes.
In sum, Obama’s CVE strategy expressly instructs our investigators to consider only violent or criminal conduct. They are told to ignore radical ideology, particularly if it has the patina of religious expression. They are directed to turn a deaf ear to anti Americanism and the desire to impose Sharia, which just happens to be the principal objective of all violent jihadists and of the Obama administration’s off-time consultants, the Muslim Brotherhood. Our agents, furthermore, are cautioned to avoid doing anything that smacks of subjecting particular groups to heightened scrutiny. After all, that might imply that terrorism committed by Muslims has some connection to Islam, specifically to the undeniable, unambiguous commands to violent jihad found throughout Muslim scripture.
Obviously, this CVE guidance is exactly what our investigators follow when they consciously avoid scrutinizing jihadist social media postings by visa applicants from Muslim-majority countries, such as Tashfeen Malik, the Pakistani immigrant who joined her jihadist husband, Syed Farook, to carry out last December’s mass murderer attack in San Bernardino in which fourteen were killed and several dozen were wounded.
There is nothing secret about CVE, it is right there in black and white. Willful blindness, furthermore, is a guiding principle of Obama’s governance. It is the same rationale used to justify purging instruction about the Islamic doctrinal roots of violent jihadism from materials used to train our law enforcement, military, and intelligence agents. Finally, the mulish determination to hamstring our investigators is manifest in federal immigration policy, which actually promotes the infiltration of alien radicals into our country.
As a matter of law, it remains true that the first obligation of the federal government is national security. You might be surprised to hear that. It is also true that aliens outside the United States do not have a right to enter the United States, nor do they enjoy Bill of Rights protections under the Constitution. It should come as no surprise then that there is considerable legal and historical precedent for excluding from our country, aliens who have exhibited an affinity for foreign enemies of the United States, hostility to the Constitution, and hostility to our government.
It has historically been the goal of our immigration law and policies to promote assimilation and fidelity to American constitutional principles on the part of newly-admitted aliens. To this day, aliens about to be naturalized as US citizens are required to take an oath to defend the Constitution and renounce allegiance to any foreign sovereign.
It also remains true that aliens outside the United States do not have constitutional rights. Their legitimate expectations of due process are quite low. The Supreme Court ruled in 1950 that they get only whatever process Congress chooses to give them, and under a long-established legal doctrine known as consular non-reviewability, courts are theoretically barred from second-guessing the rejection of visa application by State Department consular officers.
Nevertheless, these foundational principles were eroded in the latter half of the 20th century by the political Left. Progressives argued that historical restrictions on immigration by alien anarchists and especially communists had been based on nativist fears and an exaggerated estimation of the threat that our government would actually be violently overthrown, an estimation that to the contrary was actually bolstered by the extensive proof of communist infiltration that emerged after the Soviet Union’s collapse.
The political Left championed new international arrangements, such as the 1975 Helsinki Accords, that aim to facilitate international travel and began a gradual reversal of immigration restrictions based on radical political ideology. Simultaneously, the Warren Court eroded immigration restrictions based on hostile political ideology. The Court extended the First Amendment protection to the abstract discussion, teaching, and advocacy of the violent overthrow of our government, tenuously distinguishing it from conspiratorial action to achieve that goal. Similarly, the justices protected what they called mere advocacy of illegal acts, again, tenuously distinguishes such advocacy from actual incitement to violent crime.
While federal courts did not expressly and directly recognize constitutional rights for aliens, they circumvented this inconvenience with a loopy theory. They reasoned, if you can call it that, that the First Amendment rights of Americans to free political speech and assembly were somehow violated by the exclusion of alien radicals from our midst. The exclusion of foreign radicals, we were to believe, deprive these citizens of hearing what the radicals had to say, as if their physical presence were necessary for that purpose. The overarching theme was that immigration restrictions based on an alien’s radical anti-American ideology were to be discouraged. Restrictions instead were to be limited in situations in which there was evidence of subversive or terrorist action.
Leading Congressional Democrats warm to this notion that ideology is harmless and has no causative connection to violent action. There were still restrictions in federal statutory law that enabled the government to exclude aliens who were members of subversive organizations or who had advocated seditious acts against the United States, but led by Senator George McGovern, lawmakers in 1977 pushed through legislation that waived these provisions in almost all cases.
Later, in 1988, Senator Daniel Patrick Moynihan and Congressman Barney Frank succeeded in enacting an amendment that effectively granted First Amendment protections to non-immigrant aliens. Finally, the 1990 Immigration Act, spearheaded by Congressman Frank, largely repealed the reliance on radical ideology as a basis for excluding aliens. Henceforth, aliens could only be excluded from our country for involvement in terrorist activity, but not for holding the belief or, quote-unquote, “merely advocating that the United States government should be overthrown.”
In short, as the Soviet Union teetered and collapsed, Washington convinced itself that the end of history was upon us. It was only a matter of time until progressive, welfare state democracy spread across the world. In the meantime, we were to believe that the American people would never again face significant threats to our security and our way of life. The post-sovereign, International Left, which sought to eliminate distinctions between citizens and aliens, saw no contradiction in awarding aliens outside the United States the privileges of constitutional protections with no expectation of their taking on the duties and loyalties of American citizens. Political progressives heartily assumed that there were no real foreign enemies or threats on the horizon.
About a year later, jihadists bombed the World Trade Center. They have been striking us ever since. So, are we defenseless against our enemies? Well, we are as defenseless as we can be when the impediments to strong national defense are self-imposed. As bleak as things may seem, most of the restrictions on us could be quickly reversed were there the will to do so. Eyes willfully blinded can be willfully pried open. We could recognize what ought to be the undeniable connection between radical ideology and violent action. We could subject Islamists to heightened scrutiny while remaining mindful of our Muslim allies, those who helped us infiltrate terror networks and stop attacks, those who celebrate Liberty and reject the imposition of fundamentalist Sharia as a system of totalitarian governance.
We could recognize that however one assesses the seriousness of the communist threat and the likelihood that it might have been pursued with by the violent overthrow of our government, the modern jihadist threat is vastly different, whether its belligerent ideology leads inexorably to murderous atrocities is not an abstract, academic question. The progression from scripture to incitement to violence is a fact too often repeated to doubt. We could therefore conclude that immigration policy crafted for the challenges of the Soviet era are not suitable for our current threat environment. We could make sensible changes.
These are things we can do to become less defenseless, but they do not address a basic cultural question. Sometimes a people becomes defenseless because it decides it is no longer worth defending, that is the prospect we must dread as we hear more relentlessly it seems with each new jihadist attack that we are to blame, that America is always the culprit who provokes, not the target defending Liberty against would-be tyrants. A sound counter counterterrorism strategy can right a lot of wrongs and shore up a lot of weaknesses. Alas, it cannot convince us that we are worth the effort. Thank you very much for your attention.
Robert R. Reilly:
Thank you very much, Andy. Please keep your questions, questions, and as brief as possible.
Given the scenarios you sketched out for how we got in this mess, I think the obvious question that comes to my mind is are our political masters stupid or are they lying?
I do not think there is any silver bullet answer to that. This is oversimplification, but I have encountered two main personality types in the government. There is well-meaning but – I was going to say dumb, but we will go with stupid. There is a school of thought that we basically cannot walk and chew gum at the same time, we cannot combat jihadists and make it clear to 1.6 billion people that we are not at war with the whole world, and I think those people are well-meaning, but you know, they are as dumb as a doornail.
Then there is a more cynical brand of government person, who understands that terrorism has to have a cause, jihadism has to have a cause, and if you take away the ideological-fueling component, it has to be something else. And there is something else, the blank that gets filled in always turns out to be whatever the Left is against that week, so maybe it is Israel or its military commissions or its Gitmo or – did I mention Israel? – but you get the point. It is a very powerful rhetorical tool to be able to argue that what causes terrorism just happens to be the policies that you are against, and that is a cynical way of doing it, but I think there are a lot of people who do it that way.
But it suggests that they plan to ride that tiger and then leap off at some opportune time.
I do not know. I do not know that anybody really ever confronts the need to leap off. I think they always think when the crisis comes, they will figure something out. I hate to be the bearer of bad news that way. Yes, sir?
Yes, could you weigh-in on [or] bring clarity to the idea that foreign combatants, captured non-citizens outside of the United States on the battlefield, should not have access to US courts? In fact, it was always that they should not be trying in civilian courts according to the Geneva Convention, but many of these terrorists violate the laws of war. They are not signatories.
Yeah, the law of war that allows you to detain enemy combatants until the end of hostilities is portrayed as something awful nowadays, but it is actually a humanitarian law. The idea is that if you take people off the battlefield and you strip the enemy’s resources, they will be impelled to surrender and that will end the carnage faster. That is the theory. And to become an unlawful alien combatant you have to violate the basic laws of war. They target civilians, they hide themselves among civilians, they do not belong to a regular military unit, and the like, so there is a good argument that people who conduct themselves that way should be treated worse rather than better under our law.
But I think it is an admirable thing that the American people do not want to believe or do not want to fear that we are holding the wrong people, and the problem in this conflict unlike a traditional conflict is that unless you have captured terrorists red-handed, he does not present as a traditional military opponent so there can always be – not always, but there can often be some ambiguity about whether we have the right people or not. But you are quite right that in the post-World War II period the Supreme Court held pretty firmly that it was really a disastrous idea to invite the enemy into our courts and turn our courts into a weapon against not only our military forces but against the American people.
We are still feeling our way for this conflict. My own view of it, for what it is worth, is that it is not a perfect fit for the military justice system, which frankly has not done a good job, and I can tell you firsthand it is not a good fit for the civilian justice system, so I have been arguing since about 2004 that we should have a national security court that melds the two systems, brings to bear the best features of both, particularly the features that help us protect national defense. I mean you can never do anything about Hillary’s server, but we could at least in terrorism cases maybe not give our national defense secrets to defense lawyers and terrorists. So far that idea has not gotten any traction, but I am trying.
Thank you for another spectacular speech. Sharia supremacism seems to me to be a marvelous new innovation in the lexicon and I commend you for it.
You handed me the notice when I came in.
Two things. One is you have I think laid out a basis upon which you can actually differentiate between jihadists you do not want to introduce into the country and Muslims you may want to. And second, I would ask you to comment. Having witheringly dissected the Countering Violent Extremism program, if you might say something about the Republicans embrace of it last week in the House of Representatives.
I think I have a macro that is ‘what the Republicans just did was unfortunate.’ I use it a lot. Ripping the Republicans is probably too easy to do and when I do it, it does not really give enough credit to what they are up against, I mean Obama is not going to abandon countering violent extremism. And it is not like if the Republicans cut it on the budget, that he will not do it anyway. I say that with the caveat that I am as frustrated as anyone with the failure to use the power of the purse to challenge these policies that should have been challenged for eight years, but now that there is like six months to go, I think these guys are just holding their breath and hoping that nothing too bad happens, which is what we have been doing for eight years, right?
You know you have to hope if Mrs. Clinton is elected, I think you are going to get a continuation of most of this, but I am very afraid of what we are going to see happen in the next six months and I am particularly afraid of what we will see happen in the six-week period between Election Day and January 20th, which will be rock and roll crazy.
You spoke [of] not letting certain groups of people immigrate into the United States for a period of time. Has the law changed since Jimmy Carter did that?
Yes, the 1990 act that I spoke about was a pretty drastic overhaul of the law. [There is] good news and bad news. [The] bad news is it is very hard to keep people out on ideological grounds. [The] good news I would say is twofold. Number one, you cannot do what you do not have resources to do, so if you were to cut the funding that was available for screening people to come in, in theory, sensible theory, they would not be able to come in. President Obama, unfortunately, would turn that on its head and say we have to let them all in because we just do not have the resources to screen them and we cannot be leaving them outside the door, which is crazy, but that is where he is coming from. Again, to go back to Frank’s point, we are dealing with a political culture here that is paralyzed.
The really good news about this is most of the damage that has been done in the immigration area is statutory. There are bad things that have happened in First Amendment jurisprudence, which will be very difficult to undo because Supreme Court decisions essentially can only get undone by other Supreme Court decisions or constitutional amendments, which are very difficult. Statutes can be changed the next day, but certainly with the next Congress and most of the bad stuff in immigration is statutory.
Hi, so the question is anybody here – under the premise that you are a prosecutor, anybody here could be prosecuted for conspiracy if we decided we were going to talk amongst ourselves about committing crimes. Is that true?
I would have to have evidence that you are actually planning to commit the crime.
Okay, so if you have the evidence, you are saying – what I am looking for is what is the real holdup between like local law enforcement, the FBI if you can establish that there is a specific type of language that is being used in order to veil a threat, for instance. We use the Sharia supremacy as that language. Is it just a matter of rewriting the law? Is it just rewriting the wall in such a way that allows people to move forward?
There’s not there’s not a jot in the law that needs to be changed. It is basically the application of the law, so the very simple point, which maybe I overcomplicated but I should try to simplify, [is] the conventional wisdom in the government and particularly the guidance that you are getting from the Justice Department, which happens to be chock-a-block with a lot of people who are defense lawyers and defended terrorism cases and the like. Their view of the world is that you cannot be investigated for constitutionally-protected activity, and my view of the world, which happens to be the legal rule of the world, not the fantasy view of the world, is that you cannot be prosecuted for what you say. There are even some exceptions to that, but you cannot be prosecuted for what you say, but we can use what you say as evidence for crimes that Congress has made crimes.
So, to take it out of the Islamic context, if Carlo Gambino is in the back of the social club and he says to the button man, whack that guy, I get to prove that he said whack that guy. He does not come in and say you are violating my First Amendment rights. No, we call that a trial, you know. We laugh but you know a lot of things that we used to think were very simple, straightforward stuff that we would never have to argue about, we are arguing about it every day, it is like pushing the rock up the hill every day.
Since at least 2012 you have explained to us that under Chris Christie the same mental blocks and peculiar relationships that Mr. Obama has [Christie has had]. If Mr. Trump wins, Mr. Christie is the frontrunner candidate to be Attorney General. How do you think we should look at that prospect?
The way I look at it is I think about who Hilary would appoint and then I figure I would crawl over broken glass to get Christie to be Attorney General. Yep. That is what four years of Holder will do.
Could you elaborate on the fears that you referenced a few moments ago that you have between the elections and January, I assume before inauguration day?
Yeah, I think you are going to see if it has not happened by then, Gitmo will be closed by virtue of the president releasing all remaining enemy combatants, so instead, since he cannot get Congress to authorize him bringing them into the United States, he will do one of two things. He will either put them on a plane and bring them into the United States, thread them through the civilian prisons and say, I dare you to impeach me, which is pretty much what he has been saying since his second day in office or he will do what he has been doing, slowly, steadily under the radar except for great people like Tom Joscelyn, who keep their eyeball on this all the time, but most of the time it is under the radar.
Three guys get released this week, five guys next week, seven guys the next week. They are taking them into Yemen. Do not be worried because they are all going through Saudi re-education so that is deprogramming them from being radical, so do not you worry about that. Plus, the ideology does not have anything to do with the terrorism, so we have got that straight now. But what I think you will see is Gitmo will be closed. I also think you are going to have a mass exodus from the federal prisons.
I worry about, you know, these kind of misdirection operations. There is a story in one of the newspapers I saw today that suggested that we could be really disappointed with President Obama’s pardons at the end because the paperwork is way behind. They are not processing enough people who might merit pardons and commutations. Well, I was still a prosecutor when we got to President Clinton’s last days in office and he used a pardon process that Holder actually constructed for him, that was an end-around the Justice Department’s regular pardon process.
And you know we have a procedure that has to be followed to pardon people. We think it has to be followed because it is the law and Justice Department regulation. The Constitution says all executive power is vested in the President, and if he wants to release people, he gets to release people, and if he decides that he does not want to wait for a stack of paper this long on every case, he can just, you know, open the doors, so I worry about that on the criminal side.
And the biggest area I think that we all should worry about – and we have seen it again and again – we have seen it, particularly with the Iran deal, but we are seeing [it] with other deals. The president is going to use the, I would say, the illusion of international law, to try to undo things he does not like either about our Constitution or our society, so what he did with Iran, for example, is there was no way the Iran deal would have passed if he had used the Constitution’s treaty provision. He would have had to persuade two-thirds of the Senate. He got these numbskulls senators to write him a law that said that he basically had to only persuade one-third of both houses.
Now, they will argue that because it did not go through the treaty process and because they do not really want to treat it like a statue because it is not like they approved it, it is more like they voted not to disapprove it, you know, the whole stuff that makes your head spin. What they want to say is that this is an unenforceable agreement, and that the next president can reverse it, but that is fairyland because in point of fact what is happening is because of the way this was handled, including Congress giving the president the patina of approval for this thing, which helped him when he went over to the Security Council and got a Resolution, all of the countries in the world and all the financial institutions and all the big companies are acting like the sanctions are a thing in the past.
So, you know, this week there was a big announcement that – is it Boeing that is now going to do business with Iran? Right. There are a million little agreements like that involving big companies and big, big money. The next president is not going to be able to come in and pull the plug on that, and that is why a lot of us argued that the only thing Congress should have done with this Iran Deal is tell Obama, bring it to us as a treaty, and if you do not want to do that, pass a sense of the Congress piece of legislation, it does not matter if he signs it or not, that tells the world we think the sanctions are still in effect in law, he can only waive them until the end of the year, he cannot erase them, and we expect the next president to enforce them.
Now, would that have made anybody nervous right now in the here and now? I think it might have, I mean you might have gotten a few deals, but every big institution would have had to worry that if the next president came in and reinstated the sanctions, with the statute of limitations they were buying onto a criminal prosecution. There might not have had to be any criminal prosecution. The in terrorem effect of that would have would have destroyed what Obama was trying to do. Instead, everybody rolled over for him, but I think the thing for you to watch is there are a lot of these international law deals available.
If he cannot get some piece of legislation through, he cannot get some treaty through, he gets a bunch of cooperative countries together, they draw up an agreement, he runs to the Security Council, they stamp it UN-approved, and then he says even though it is not U.S. law, we have to follow it because it is customary international law or it is supported by, you know, UN gobbledygook. That is what I would be most afraid of because while I think we ought to laugh off a lot of international law, that is not the popular view around here, and there is a lot of damage that has been done by things that could never get enacted as American law but that started out as international law and ended up with us buying on to it because we want to be a good citizen of the world, so I would be worried about that kind of stuff, too.
Yeah, I have one question. It seems to me that we talk an awful lot about fighting the ideological warfare with Islamism, which I agree with, right, but it also seems to me that we need to fight an ideological warfare with the forces that are stripping the Constitution of its force. Just one example of what I mean: in announcing or discussing the Orlando massacre, Mr. Obama used a page out of Bolinger’s book, you know this book, Language, the Loaded Weapon, and he said we are trying to label this an ‘act of terror and hate,’ [and] because he mentioned hate last, that is what sticks in people’s minds, therefore that is what people think of it, that it is a hate-driven thing.
What can be done to fight an ideological warfare with the forces that want to say that this is all fine and good, what we are doing is right, there is no problem with Islamism, it is nothing to worry about? What can be done to fight the ideological warfare with these forces that are downplaying the danger to us?
Well, what I have tried to do since I left the Justice Department is expose it. I still believe that our system works in the sense that when you expose bad ideas, if we made them defend their ideology, you know, there are about seven or eight core tenets of Islamist ideology that are absolutely repugnant to anybody who is raised in the Western tradition, beginning with the very core belief that we have that the people are entitled to make their own destiny, to make law for themselves irrespective of any code like Sharia, you know. Their way of looking at the world is that their duty is to obey this God-given code, right? And you can go down the list, whether it is discrimination or hostility to liberty, Sharia is a repugnant system.
I think the reason that they have cruised up until now is no one has made them defend it. They have basically been protected by the political class and a lot of this is looking for love in all the wrong places, right? 9/11 happens, we do not have good intelligence in the Muslim community. You know, the Justice Department went through that in smaller [unintelligible] years ago with the Mafia. You have to go out and get informants, right? What they decided to do was take the shortcut rather than do the work that you need to do to get informants, they decided ‘let us make friends with the top Islamist organizations, and then we will have all kinds of good lines into the Muslim community.’ That is like, you know, going to be friends with Carlo Gambino, right? He does not have your best interest at heart. So, I think the biggest thing we can do is expose what they believe and relentlessly make them defend it. It is not easy to do in this suffocating political correctness, but what we have to try.
And the other thing is the problem that you mentioned by citing his invocation of hate. I think the biggest problem we have is, you know, conservatives want to go about their lives, whereas the Left eats, sleeps, and drinks, you know, how do we transform the society, and as a result I think what frequently happens is the language battle is not only on, it is over before we even know there was one. You know, we did not even know there is a game today. You know, we basically forfeit. I mean this is how, you know, abortion becomes ‘choice’ and you know how the game works. They are very good at figuring out ways to soften the words to pitch their tyranny to people, and we have to get much better at recognizing it at the start. I mean I have had this discussion with people before.
I am not looking to get into a big thing about gay marriage, but I thought the battle was lost for social conservatives the minute that somebody decided that the word marriage needed a modifier in front of it. Once you fell into the rhetorical trap of having to say hetero-marriage versus gay marriage or same-sex marriage, it was lost. I was just a matter of [time], you could set your watch to when you were finally going to lose. But a lot of times they are very good at figuring out strategic uses of the language and we not only do not call them on it, we fall right into the trap and go along.