Andy McCarthy vs. Thomas Paine.

Yesterday, during Attorney General Eric Holder's appearance before the Senate, the right-wing blogosphere crowded around National Review "legal expert" Andy McCarthy as he exposed the "whoppers" in Holder's testimony. Let's take a look at these -- I'll excerpt as much as possible since McCarthy's post is long.

The "tragic shooting" at Ft. Hood. What happened at Ft. Hood was a jihadist massacre — a terrorist act, not a tragedy.

So, right off the bat, we've established that former U.S. Attorney Andy McCarthy has no idea what a "fact" is, since whether or not the shooting at Ft. Hood was a "tragedy" is actually a matter of opinion. This man is a lawyer.


The civilian justice system has been handling terrorism cases successfully for years.
No mention of Mamdouh Salim, the al-Qaeda founder who was never brought to trial for 1998 U.S. embassy bombings because he maimed a Bureau of Prisons guard in an escape attempt during which he attempted to kidnap is taxpayer-funded defense lawyers.

The federal courts have convicted hundreds of terrorists; during the entire Bush administration the military commissions tried three cases. That one of these people tried to escape and hurt someone has zero to do with whether or not the legal system of the United States can handle trying terrorist suspects. What McCarthy is describing above is a security issue, not a legal issue, but since he can't distinguish between fact and opinion I suppose the above distinction is also too much to ask. Yesterday, former Bush adviser John Bellinger said that military lawyers were so unused to trying terrorism cases that they tried to get them help from the civilian attorneys in the Justice Department. That's not a qualitative judgment on military lawyers -- it's indicative of the fact that terrorism has traditionally been tried in civilian court and so federal prosecutors have more experience with those kinds of cases.


A civilian trial is no more a platform for KSM than a military commission would have been.
That's ridiculous. KSM was ready to plead guilty and be executed eleven months ago. Whatever soapbox he was going to have, he'd largely already had, and while we'd have had to let him speak before sentence was imposed, that would have been the end of it. Now, he's going to get a full-blown trial — after combing through the discovery for a couple of years and after putting the Bush administration under the spotlight.

So this is an unforced self-owning. McCarthy wants a military commission for KSM because he's afraid of "putting the Bush administration under the spotlight." In other words, a civilian trial of KSM would expose the Bush administration's illegal behavior, behavior McCarthy supports but doesn't want exposed for what it is. There's nothing more telling about the shaky moral case for torture than torture apologists' fear of their methods being scrutinized before a court of law.

In a civilian trial, America will see KSM for the coward that he is — Holder: "I am not scared of KSM." Submitting a war criminal to a military commission is not an exercise in fear; it is an exercise in justice. We already know all about what kind of animal KSM is, thanks to the exrtraordinary information that has come out in the military proceedings and the CIA interrogations. You could fill a book a book with it, which the 9/11 Commission did. We don't need to bear the risks of a civilian trial either to learn more about KSM or so Mr. Holder can show how brave he is.

Of course, KSM isn't a "war criminal" if he's guilty, he's just a criminal -- a mass murdering criminal, but there's no need to elevate him to the status of warrior. He was captured by Pakistan's Inter-Services Intelligence, not on a battlefield. He has no right of belligerence. He's not a uniformed soldier or state actor. He is a terrorist. Terrorists are criminals.

For eight years justice has been delayed — no longer, "It is past time to finally act." Holder, of course, does not mention the role of his firm and others in delaying and derailing the military commissions during their representation of America's enemies. Senator Kyl just confronted him with my contentions on that score (from this column). The attorney-general responded that I am a polemecist who says inflammatory things for talk shows, whereas he is concerned with facts. (I guess he means pertinent facts, like how he is not "scared of KSM.") I'm delighted to let people judge that one for themselves.

McCarthy wrote a long screed attacking the "the tireless campaign conducted by leftist lawyers" who gave "free, top-flight legal assistance to our enemy detainees," for delaying the military commissions by challenging their constitutionality. The lawyers in question were doing nothing more than following Thomas Paine's counsel, that "he that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."

Never mind that these "left-wing lawyers" -- many of whom were people in uniform serving their country -- have managed to win 30 out of 38 habeas cases for detainees at Guantanamo. McCarthy's argument is a textbook example of what Armando describes as "the Ed Meese School of Law" wherein being a suspect makes you guilty even if you've been convicted of nothing. Never mind that it was the 2006 Roberts-Alito Supreme Court -- that left-wing cabal that was to the right of the partisans who handed the presidency to George W. Bush -- that decided the Hamdan case ruling the Bush military commissions unconstitutional. Never mind that due process is the legal principle on which a democratic society rests -- McCarthy would throw it all away to have a bad guy waterboarded or thrown in a cell forever.

This man, who in a second would give al-Qaeda the kind of strategic victories it only dreams of without hesitation by needlessly shredding the traditional institutions of American democracy, imagines himself a patriot, and those who defend the Constitution as traitors.

-- A. Serwer

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