Khalid Sheikh Mohammed’s Prison Communiqués

Part I:

I was invited to provide commentary Tuesday night on Megyn Kelly’s Fox News program (“The Kelly File”) regarding the all too predictable but nevertheless appalling news that Khalid Sheikh Mohammed — al Qaeda heavyweight, 9/11 mastermind, decapitator of Daniel Pearl, jihadist warring against America for the better part of two decades, and murderer of nearly 3,000 of our fellow citizens — has been permitted to transmit propaganda out of the prison camp at Guantanamo Bay. The interview is posted on Megyn’s site here — I respond to contentions made by the first guest, defense lawyer and former JAG Charles Swift.

More needs to be said on this. Let’s first consider the insanity of permitting enemy combatants to communicate with the outside world while the war ensues — and though the administration rarely speaks or acts as if there is a war going on, and while the public pays it scant attention, we still have forces in harm’s way pursuant to a congressional authorization of combat operations; we are still killing and capturing enemy operatives pursuant to the laws of war, which is only permissible during wartime.

The rationale for shifting, post-9/11, from a law-enforcement counterterrorism paradigm to a war-footing prominently included the recognition that we had to regard as a military enemy, not as mere criminal defendants, the members of an international terrorist network that (a) had declared war against the U.S.; (b) was supported by rogue governments; (c) focused its jihad on American military, political, economic and civilian targets; and (d) was capable of projecting force on the scale of the 9/11 attacks. Contrary to popular wisdom, that remains a salient distinction.

Criminal defendant detainees in the civilian justice system are arrested only after being accused of crimes, and are presumed innocent of the charges. Thus, in the pretrial phase, they have an array of rights even if they are denied bail — and bail may only be denied based on risk-of-flight or convincing proof that they pose a danger to potential witnesses or the community at large. These pretrial rights include liberal opportunities to meet with counsel for trial-defense preparation, and to have contact with others in the outside world that approximates what accused people who are at liberty enjoy. (This changes if and when a defendant is found guilty at trial. Incarcerated convicts have significantly fewer rights and privileges than pretrial detainees.)

To the contrary, enemy combatant detainees do not have to be accused of prosecutable offenses in order to be lawfully detained, and they are generally denied contact with the outside world. The reason is straightforward. While the object of the civilian criminal justice system is to provide due process to the accused so that civil rights are protected and trial outcomes have integrity, the object of war is to defeat the enemy. Consequently, while we owe enemy combatants basic humane treatment, due process concerns are not a high priority. After all, the rationale for detaining enemy combatants has little or nothing to do with prosecution of a criminal case — indeed, there need be no criminal case, and in most instances there is not one. The purpose of detaining enemy combatants is to deplete the assets of the enemy and thus achieve victory more rapidly and with less bloodshed.

Moreover, even when enemy combatants have committed provable war crimes that qualify for trial by military commission, the priority in wartime remains victory for the nation. As long as the war ensues, due process for the war criminal is never the priority because prosecuting war crimes, even when the accused is a high-ranking enemy operative, is far less important than victory in the war. Due process rules governing discovery and testimony can result in the public revelation of our intelligence about the enemy, and in the use of the trial process by the enemy for propaganda purposes. Thus, war crimes trials rarely happen until after the war is over, and when they do happen during the war, great care must be taken to guard against unnecessary disclosures.

Of course, fundamental fairness requires permitting an accused war criminal enough access to counsel to prepare for trial. This, however, does not imply that the accused has constitutional rights. Most commentators get this point wrong. We permit an alien enemy combatant meaningful access to counsel because by accusing him of war crimes we have chosen to put him on trial. A trial would not meet the Anglo-American standards for a trial if the accused were not permitted a meaningful opportunity to mount whatever defense he may have. That is, our concern is with the integrity of the trial process, not with the purported “rights” of wartime enemies who have committed atrocities against Americans.

Obviously, then, an alien enemy combatant accused of war crimes is not entitled to the extensive contact with counsel afforded in the civilian justice system to Americans who are fully vested with Fifth and Sixth Amendment rights. And even less is an alien enemy combatant entitled to other, more general contact with the outside world.

Unlike meeting with defense counsel — again, an unavoidable consequence once the decision is made to charge war crimes — there is no reason to permit an alien enemy combatant detainee, particularly one of very high rank in the enemy forces, to communicate with people outside the prison. We owe only humane treatment (even though it would be preposterous to expect al Qaeda to reciprocate on that score). While the war continues, we do not owe an imprisoned alien enemy combatant the opportunity to correspond and otherwise get messages to friends, acquaintances, confederates, activists, and the media.

After news broke of KSM’s dissemination of an Islamic manifesto and correspondence with a pen-pal in England, the Obama Defense Department responded to criticism by claiming it had an adequate procedure to vet the combatants’ communications prior to allowing their mailing or publication. That is absurd. For starters, it is not a question of adequate vetting; alien enemy combatants should not be permitted to communicate with the outside world during wartime, period. The burden is not on us to scrub messages — or, at least, it should not be. Furthermore, because our government, very much including the military, is willfully clueless regarding Islamic supremacist ideology, there is no way it could competently vet combatant communications even if such a system were required.

As the last quarter-century has taught us (even if the government remains mulishly deaf to the lesson), captured and imprisoned jihadists are lionized worldwide by Muslims adherent to Islamic supremacism — which, unfortunately, is a mainstream interpretation of Islam in the Middle East and has followers throughout the West. We have a long history of arrested jihadists using their elevated stature as heroes imprisoned by the infidel enemy to promote jihadist recruiting and fundraising, and to inspire acts of terrorism.

To take just a few examples, after killing JDL founder Meir Kahane in 1990, Sayyid Nosair became a hero to jihadists. From Attica prison, he met with other jihadists, encouraged them to carry out mass-murder attacks and political assassinations, and helped plot the 1993 WTC bombing. He also made inspirational recordings that were played in radical mosques to promote recruiting and training. He made a habit of calling for more terrorism (“I did my part, why aren’t you doing your part?” was a refrain), but even when he did not expressly stoke the jihad, his ostensibly benign discussions of Islam were used by his confederates as a recruiting tool and a propaganda device — propagating the enemy theme that America was at war with Islam, with all Muslims.

More importantly, from the federal prison where he was (and is) serving the life sentence imposed after his terrorism convictions, the “Blind Sheikh,” Omar Abdel Rahman, called for attacks against the United States. Later, Osama bin Laden publicly credited him with issuing the “fatwa” (the edict under Islamic law) that approved the 9/11 attacks. You read that correctly: the 9/11 attacks were pre-approved by a fatwa issued from federal prison. Subsequently, the Blind Shiekh’s lawyer, Lynne Stewart, was convicted of material support to terrorism for transmitting his messages to his Egyptian terrorist organization (Gama’at al-Islamia or “the Islamic Group”).

In March 2005, NBC News reported that the jihadists convicted of bombing the World Trade Center in 1993, despite being incarcerated in the “super-max” high-security federal prison in Colorado, had been permitted to correspond with a terror cell in Madrid — and one even got a letter to al-Quds, a popular Arabic newspaper, proclaiming, “Osama bin Laden is my hero of this generation.” Nice vetting job, no? Spanish officials found that the letters from the imprisoned American terrorists were used to recruit jihadists in Spain, and that people on the receiving end of the correspondence were complicit in acts of terrorism.

Remarkably, opponents of military commissions like Mr. Swift (my aforementioned co-guest on The Kelly File) contend that the public dissemination of KSM’s meanderings would not have happened if, as the antiwar Left has demanded and as the Obama Justice Department desired, he and other enemy combatants were imprisoned and prosecuted in the civilian federal court system. Note that the examples I’ve cited all involve terrorists convicted in civilian court and incarcerated in the high-security precincts of the civilian prison system. The pre-clearance analysis of terrorist correspondence there is no better than it is at Gitmo.

Still, the revelation that jihadist correspondence is being enabled at Gitmo is worse because it further confirms a governmental retreat from the post-9/11 war paradigm. In the 2008, then-candidate Obama campaigned against this Bush-era counterterrorism strategy; once in office, however, he found that it was popular — the general public, unlike the Lawyer Left, did not want Gitmo closed, did not want KSM & Co. given the gold-plated due process of civilian court, did not want alien terrorists trying to kill Americans given American constitutional rights, and did not want to go back to the failed Clinton approach of fighting jihadist bombs with subpoenas. Thus, knowing the 2012 election was in front of him, President Obama left almost all of President Bush’s strategy intact.

Now, it is being gradually dismantled. Gitmo is being emptied by transferring terrorists back to countries where they can return to violent, anti-Western jihad. American combat forces, already suicidally hamstrung by unconscionable rules of engagement, are being withdrawn from Afghanistan even as the Taliban moves back in. Al Qaeda is ascendant in Iraq and across North Africa. And, while KSM’s military commission appears to be headed to trial (I’ll believe it when I see it), other 9/11 prosecutions have been shifted to federal court in Manhattan. The Left has substantially succeeded in eviscerating the distinction between enemy combatants and criminal defendants.

When you go back to pre-9/11 methods, you are asking for pre-9/11 results. And on that score, the jihad is known to be very accommodating.

Part II:

We explained in yesterday’s Ordered Liberty post that the publication of jihad heavyweight Khalid Sheikh Mohammed’s communiqués, disseminated from the terrorist detention facility at Guantanamo Bay, herald the return of the pre-9/11 paradigm: jihadist terror treated as a mere law-enforcement problem, not a war. Now, we turn to the propaganda aspects of KSM’s published writings, which – so far as we know at this time – include an Islamic-supremacist manifesto (published by the Huffington Post) and a lengthy letter to a social-worker pen-pal in Britain (reported on by the Guardian).

Let’s start by observing that it would have been inconceivable during, say, World War II, for the U.S. government to permit imprisoned German or Japanese enemy combatants (of which there were thousands) to enable publication of ideological propaganda from American detention facilities. It would have been nearly as inconceivable for American lawyers to argue that alien enemy combatants had a “right” to communicate with the outside world this way, or for American news outlets to publish enemy propaganda under the guise of “news” reporting. The two latter institutions have changed for the worse, and the government (very much including the courts) is bending to accommodate, rather than resisting, the Lawyer Left and the media.

For the reasons detailed in yesterday’s post, this is an alarming development. The national imperative in wartime should be victory over our enemies. We should not be at war unless we have that commitment – it is a profound betrayal of the young men and women we put in harm’s way to enable our enemies. KSM has no constitutional rights, we owe him only humane treatment, and it is ludicrous to suggest that he has a right to get his messages out to the world while he is lawfully detained as an enemy combatant.

Yet, the Obama Defense Department told Fox News that it is capable of vetting jihadist communications to ensure that their publication poses no threat. Even assuming for argument’s sake that the government has such a duty – and it does not, there should be a blanket prohibition – the claim is laughable.

As I demonstrated in yesterday’s post, the communications of imprisoned jihadists, even those that seem ostensibly harmless, increase the prestige of the inmates in the eyes of Islamic supremacists. They can be exploited by the imprisoned jihadists’ confederates for purposes of fundraising, recruitment, and calls to violence. It is not a matter of what our genius government analysts believe they can divine in the way of jihadist commands and coded messages. It is a matter of how the jihadists on the outside can use communications from imprisoned terrorists to promote anti-Americanism and jihadism.

But even putting that aside, our government is incompetent when it comes to vetting jihadist communications. It cannot be competent because it has spent the last quarter century putting its head in the sand on the matter of Islamic supremacist ideology and the nexus between Islamic scripture and jihadist violence.

Back in 2008, I wrote a book called Willful Blindness about what even then was a longstanding dysfunction. Yet, things have gotten much worse, particularly under Obama’s watch. The government has now purged information about Islamic supremacism from instruction materials used to train our military, intelligence and law-enforcement agents – effectively giving Islamist organizations and operatives (many with ties to the Muslim Brotherhood and red-carpet access to the administration) a veto over what our investigators and analysts may be taught about the ideology that catalyzes the threat to our nation.

The resulting debacle is elucidated by the press reporting on KSM’s communiqués, which shows why information of this sort should never be published in wartime. The HuffPo story uncritically reports, for example, that KSM is now trying to persuade people to come to Islam peacefully and that forcing people to convert to Islam is against the Koran. The obvious agenda is to put KSM – the most evil mass-murderer ever to be in American custody – in a more sympathetic light, or at the very least to bleach away any nexus between Islamic principles and atrocities committed by Muslims in the name of Islam.

But KSM has not changed and neither have his beliefs – they remain as enduring as our conscious avoidance of his ideology.

In point of fact, Islamic law teaches that, before waging offensive jihad, Muslims must first invite non-believers to accept the truth of Islam. Doctrinally, this summons to Islam is a necessary precondition to waging violent jihad. There are numerous examples of bin Laden and Zawahiri (bin Laden’s deputy and now the leader of al Qaeda) issuing public statements calling on infidels to accept Islam. Under their interpretation of sharia, it is a box they are supposed to check before they start blowing things up and steering airplanes into skyscrapers.

The reporting makes much of KSM’s assertion that the Koran forbids forcible conversion to Islam. The narrative now making the rounds is that KSM “has renounced violence,” as Canada’s National Post puts it.

Even a cursory familiarity with Islamic supremacist ideology would put this specious claim to rest. It is true, in the most narrow of senses, that Islamic doctrine forbids forcible conversion: Muslims are not supposed to hold a gun to your head to force you to convert. But Islamic doctrine endorses violence for the purpose of promoting Islam, and conversion is not close to being the most significant way of promoting Islam.

I began The Grand Jihad, my 2010 book on the Muslim Brotherhood, with what may, from the Western standpoint, be the most important verse of the Koran, sura 9:29. It commands:

Fight those who believe not

In Allah nor the Last Day,

Nor hold that forbidden

Which hath been forbidden

By Allah and His Messenger,

Nor acknowledge the Religion

Of Truth [i.e., Islam], from among

The People of the Book [i.e., Jews and Christians]

Until they pay the Jizya [which I’ll explain momentarily]

With willing submission,

And feel themselves subdued.

Jihadists are not overly concerned with your conversion to Islam; their obsession is your society’s adoption of sharia. We commonly refer to sharia as “Islamic law” but, to be more accurate, it is Islam’s totalitarian societal framework, aspiring to regulate every aspect of human life – from great public matters of governance and war down to picayune matters of personal hygiene.

KSM and his fellow terrorists want Islamic governance, not conversions. It is the implementation of sharia that is deemed to be the necessary precondition for establishing the caliphate – Islamic rule. Acting on the Koran’s injunction, the jihadists are not trying to convert you; they are trying to make you submit to the authority of sharia. As sura 9:29 makes clear, you can keep your non-Islamic religion as long as you pay the jizya willingly. The jizya is the tribute or poll tax that non-Muslims must pay to the Islamic authorities for the privilege of living under the latter’s protection.

This is known as dhimmitude. Dhimmis are non-Muslims who have submitted to sharia. While Islam allows them to remain non-Muslims, they learn, upon submitting to Islamic authority, that sharia discriminates severely against them and in favor of Muslims. By design, it makes life difficult for infidels, especially when it comes to worship. That is in fulfillment of sura 9:29’s closing edict that Muslims make sure non-Muslims “feel themselves subdued.”

You see, jihadists play an extortion game: You don’t need to coerce people into conversion if you so rig the system against non-Muslims that, eventually, most people will “voluntarily” see the good sense in converting. In the meantime, jihadists are not in a big rush to have you convert. Indeed, in the history of Muslim conquests, the jizya was vital to the financial health of the Islamic state. The caliphs were in no hurry to have everyone convert as long as they were submissive and paid up on time.

So how much has KSM actually changed? He says he is against violent conversions, but conversion was never what the violence was about in the first place. He says he believes people will accept Islam through peaceful persuasion, but the setting for that persuasion – jurisdictions where sharia rules – may be created by aggression. And, in another bit of legerdemain, his manifesto still favors “defensive” jihad when Islam is under attack by non-Muslims.

What you find with Islamic supremacists is that defense is in the eye of the beholder: Islam is “under attack” whenever it is merely subjected to critical analysis; when there are objections to its repressive, iniquitous laws; and whenever the thin-skinned supremacists feel insulted or put upon. It is not like and armed invasion and occupation are necessary to trigger “defensive” jihad. And the U.S. government, in its willful blindness to our enemies’ ideology, still does not grasp that what it sees as benevolent American occupations and interventions to try to make life better for Muslims are seen by many of those Muslims as “Islam under attack.”

We have ourselves to blame for allowing monsters like KSM to broadcast their propaganda … and ourselves to blame for falling for it.