Dear SANE Subscriber, Member, or Friend, Welcome! This week we are highlighting several essays, all published
at the National Review Online, which focus on the Obama-Holder approach to Shariah-inspired
jihad. The first essay ought to get your attention because it illustrates how the Obama-Holder
Justice Department is working overtime to protect the Saudi princes who helped
fund al Qaeda’s 9-11 attack on the US. Imagine the U.S. government affirmatively acting
to deny the victims of 9-11 and their families their day in court notwithstanding substantial
evidence pointing to the Saudi princes’ direct complicity. Why are the Saudi Shariah-faithful oil sheiks immune from justice?
National Review Online June 24, 2009 4:00 AM
Sovereign Immunity or Cover-Up?
Obama wants to protect our Saudi “friends” — even when
they fund our jihadi enemies. By David Yerushalmi Full disclosure:
I have a pony in this race. I am an American and, as an attorney, I am an officer
of the court. I make this disclosure in the light of an amicus curiae brief recently
filed with the U.S. Supreme Court by the Obama-Holder Department of Justice. The
brief pertains to the mammoth case that came to the Supreme Court via the Second
Circuit Court of Appeals (New York) called In re Terrorist Attacks on Sept. 11,
2001. The Supreme Court is currently pondering whether the case merits its review.
In its friend-of-the-court brief, the Justice Department
has argued, almost unimaginably, that the Supreme Court should not review the Second
Circuit’s ruling that the victims of 9/11 and their families may not sue
the Saudi government or, more importantly, the individual Saudi princes who personally
(not as government actors) gave money to Muslim charities they knew would be funding
al-Qaeda’s jihad against America.
The basis for both the trial court’s dismissal of the complaint and
the Second Circuit’s affirmation of that ruling is the complex area of the
law known as sovereign immunity. To avoid the weeds, let’s stay at a high
altitude. The basis for sovereign immunity is clear: Governments need to know that
other countries’ governments will not allow their citizens to lodge lawsuits
in their home courts for any perceived wrong committed by the foreign power. Without
sovereign immunity, governments would spend fortunes and tie up personnel defending
themselves in courts around the globe. For much of our history, U.S. courts have granted the executive branch a
great deal of leeway in determining the scope of this immunity because it is the
executive branch that is responsible for international relations. Before 1952,
the executive took the view that all acts of a sovereign nation should be immune.
From 1952 onward, however, the government has taken the more reasonable “restrictive”
approach. This grants immunity for actions a foreign government takes when it is
acting as a government, but not for actions taken when it is acting as, for example,
a commercial enterprise, which might occur when the government in question owns
a company doing business in the United States. In 1976, Congress passed the Foreign Sovereign Immunities Act (FSIA), which
effectively codified the restrictive view of sovereign immunity. The statute is
not clear on many points, however, and that leads to legal disputes like the 9/11
case. What makes the Justice Department’s
position unimaginable is that its brief concedes that the Second Circuit’s
ruling got the law wrong (although the brief maintains that it fortuitously got
the result right) and that it is in conflict with other circuit courts that have
ruled on the issue. The two situations
in which the Supreme Court is most likely to accept the type of discretionary appeal
known as a writ of certiorari are when the circuits below “split,”
or when a circuit has issued a bad ruling that will have serious implications for
federal law. The Obama-Holder Justice Department admits that both conditions are
met in this case, yet it still favors immunity. Worse, it believes the Supreme
Court should not even review the matter. In other words, the Obama administration
concedes that the Second Circuit, one of the more influential federal appellate
courts, got the rationale for its holding wrong, but it nonetheless opposes giving
the victims of 9/11 their day in court. The other unimaginable position maintained by the U.S. government is that
the Saudi princes acting as private individuals should be immunized from lawsuits
by the victims of 9/11 — not on the basis of sovereign immunity, but because
the Obama administration doesn’t feel there is enough evidence against them.
But even the Second Circuit recognized there was a wealth of evidence to show that
these princes knowingly funded al-Qaeda’s terrorism via Muslim charities.
What makes this position even more outrageous is that the only valid basis
for the Justice Department to step in and offer its opinion in this case was to
clarify for the Supreme Court the executive’s view of the interpretation
of sovereign immunity under the FSIA. That the Justice Department would even venture
its opinion on the wholly unrelated issue of whether there were was sufficient
evidence presented in the complaint to justify allowing the case to go forward
against the individual princes is, at the very least, problematic.
The question now crying out to be asked: How far
will the Obama administration go to prevent private plaintiffs from exposing the
quite personal ties between our Saudi “friends” — who love to
host U.S. presidents bearing words of praise — and our jihadi enemies fighting
to impose the rule of sharia around the world?
— David
Yerushalmi, president and founder of SANE, is an attorney specializing in litigation
and general counsel to the Center for Security Policy, a think tank in D.C. specializing
in national security. For a full
treatment of the evidence linking the Saudi princes to terror funding, see this
story in today’s
New York Times. The second essay, also from NRO, is by our dear friend
and intrepid legal warrior-scholar, Andy McCarthy. Andy was the lead US Attorney
who successfully prosecuted the Blind Sheikh for the first jihad attack against
the Twin Towers and has been involved in several prosecutions relating to the Shariah-faithful’s
global jihad against the West. He has been one of the leading truly expert voices
to drop the façade that jihad can be dealt with as a “domestic criminal”
matter and has argued persuasively that we need a new paradigm that marries war
and war-time justice in an expeditious and effective manner.
In that vein, we strongly urge
our readers to take the time and read carefully Andy’s three-part series
on the Obama-Holder approach to Mirandizing enemy combatants. What you will learn
is that while Obama and his Attorney General buddy Eric Holder have moved the
progressive agenda way down the field with their latest directive, this has been
in the works for some time.
National Review Online
Andrew C. McCarthy
NR Contributing Editor
June 15, 2009, 4:00 a.m. Obama Goes to Court
A
three-part series Part I: Locking in Miranda. (Note: This article is the first of a three- part series. Part II will appear
tomorrow and Part III on Wednesday.) Last Wednesday,
Stephen F. Hayes of The Weekly
Standard
reported that the Obama administration has directed the FBI “to
read Miranda
rights to high value detainees captured and held at U.S. detention facilities in
Afghanistan.” Rest assured this directive will not be limited to Afghanistan,
for President Obama has unleashed the FBI on a “Global
Justice” initiative. He is strategically erasing the line
separating our domestic body politic — our governing arrangements and the
legal privileges of citizenship afforded by sovereignty — from the international
arena — the realm of politics, diplomacy, intelligence, covert operations,
and military force, where the United States pursues its interests among other
sovereigns and factions, many of which are hostile to America. In the Age of Obama,
all the world’s a crime scene.
What looms ahead is the post-sovereign
world: the U.S. no longer determining its fate and defeating its enemies but bowing,
like a president before a Saudi king, to a “progressive” September
10 mirage known variously as “the rule of law” or “our values.”
This mirage is designed to empower savages at the expense of our national defense
— or, in leftist jargon, to level the playing field between downtrodden liberation
fighters and the colonialist, imperialist powers that have exploited them.
The fact that you may not think yourself responsible for the Crusades or
Jim Crow is beside the point, as is the fact that the New Order imperils us. The
object of this morality play is neither justice nor security. It is to burnish
the legend of leading leftists in the eyes of elite opinion-makers and to solidify
their grip on power under the guise of enhancing “our reputation in the world.”
You may ask: All that
from Miranda?
Isn’t that just a bit overheated? Not really. All
journeys, great or ill-fated, must begin with a few steps. Obama’s provision
of Miranda rights to terrorists captured overseas is not the first step; indeed,
this procedure started long before Obama. But his enhancement and extension of
it constitutes a gigantic leap forward. In small compass, Miranda is the story
of the early Obama administration. For years
leftist visionaries have worked diligently, but mostly unnoticed, clearing the
path for seismic shifts in governance (such as our understanding of criminals’
rights). The Left never capitalized on this spadework, because it lacked political
support for radical departures from American law and tradition. Instead it bided
its time, waiting for a leader audacious enough to plow ahead and deft enough,
when called on it, to claim that he was merely following precedents set by his
predecessors. The next thing you know, you’ve got the Mirandized battlefield.
For the rest of this part I essay go
here; for part II,
here; for part III,
here. Take the time. You will learn something
important about what is at stake, we guarantee it. Finally, from today’s NRO, another essay by Andy
Mc.Carthy on the Obama approach to negotiated appeasement: release the mujahideen
so they can repent of their ways. Negotiating with Terrorists
The Obama administration
ignores a longstanding — and life-saving — policy.
By Andrew
C. McCarthy As the
Iranian government’s murderous repression of the Iranian people continues,
critics right and left agitate over the deafening silence of an American president
who, as a candidate, derided the Bush administration’s ambitious democracy
promotion as too timid. They speculate as to why Barack Obama won’t speak
out: Why won’t he condemn the mullahs? Is he daft enough to believe he can
charm the regime into abandoning its nuclear ambitions? Does the self-described
realist so prize stability that he thinks it’s worth abandoning the cause
of freedom — and the best chance in 30 years of dislodging an implacable
American enemy?
In truth, it’s worse than that. Even as the mullahs
are terrorizing the Iranian people, the Obama administration is negotiating with
an Iranian-backed terrorist organization and abandoning the American proscription
against exchanging terrorist prisoners for hostages kidnapped by terrorists. Worse
still, Obama has already released a terrorist responsible for the brutal murders
of five American soldiers in exchange for the remains of two deceased British hostages.
Prepare to be infuriated. Read the remainder of this important essay
here. * * * As always, those of us at the
SANE Works
for US web journal continue our focus: To
strengthen America’s national existence by probing a new and deeper discussion
of the issues others fear or just avoid. We are convinced that with integrity of
purpose and thought, graced with civility, the SANE message will pierce the fog
that lies heavy on the ground. And we don’t hesitate to remind all of our SANE members and readers
that we welcome and indeed encourage comments on the site and even submissions
for publication. All the best,
Staff
Society
of Americans for National Existence (SANE)(SM)
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