“Bush did it, too” is not an excuse.
By Andrew C. McCarthy
April 20, 2011
When the first line of defense is “Bush did it, too,” you can rest assured that there is no second line of defense. And on allegations that the Justice Department intervened to prevent the indictment of various Islamist figures and organizations, the Obama administration’s response appears to be: Bush did it, too.
According to reporting at Pajamas Media by Patrick Poole, who has tracked the Muslim Brotherhood for years, the DOJ intervention came in connection with the Holy Land Foundation case, in which federal prosecutors in Dallas proved that the Brotherhood bankrolled its Palestinian branch, the terrorist organization Hamas, during the deadly intifada against Israel. The linchpin of the Brotherhood scheme was the Holy Land Foundation for Relief and Development (HLF), an ostensible Islamic charity through which tens of millions of dollars were funneled to jihadists overseas.
Implicated in this enterprise were various Islamist organizations in the United States that the Brotherhood identified as its partners. Several of these, including CAIR (the Council on American Islamic Relations), the Islamic Society of North America (ISNA), and the North American Islamic Trust (NAIT), were designated by prosecutors as “unindicted coconspirators.” When the organizations predictably protested this description, federal courts rebuffed them, finding that there was ample evidence of their complicity.
The five indicted HLF defendants were convicted in 2008. According to Poole, the U.S. attorney in Dallas hoped to do a second round of prosecutions targeting the unindicted coconspirators. They were thwarted, however, by Obama political appointees at Main Justice. According to an unidentified Justice Department official who is one of Poole’s sources, this decision to quash indictments (including one against a top CAIR official) was made not for lack of evidence but due to political considerations: specifically, to promote “outreach” to Muslims (an Obama-administration priority) and to avoid embarrassing the government — which stood to be vilified if those with whom they had cultivated relationships were shown to have supported terrorists.
The story has begun to attract attention on Capitol Hill. Peter King, chairman of the House Homeland Security Committee, has already fired off a letter to Attorney General Eric Holder, demanding an explanation. Not surprisingly, the Obama administration is fighting back. Its tack, however, does not appear to be denial of the allegations (it has, in fact, been stonewalling efforts by Poole and Pajamas to discover the paper trail). Instead, the response is: Bush did it, too.
Sure enough, in Politico on Tuesday, Josh Gerstein reported that in 2004 — on the front end of the HLF case, years before it was tried — the Dallas prosecutors wanted to include CAIR and some of the relevant Islamist organizations and their members in the indictment. Bush Justice Department officials, however, are said by Gerstein’s source (who is unidentified but described as “knowledgeable”) to have put the kibosh on the plan. From this fact, Obama apologists claim that there was precedent to guide Mr. Holder’s minions in declining prosecution six years later, and that criticism of them for having done so is a partisan political attack.
That’s not going to cut it.
To begin with, there is nothing partisan about the claim that the Obama Justice Department made a political decision in declining to prosecute. “Political” in this context simply means that the Justice Department made a decision based on considerations extraneous to the law and facts of the case — such as service to an agenda of cultivating Islamist organizations.
Administrations of both parties, going back to the Clinton era, have been guilty at times of elevating Islamic outreach over prudent national security. Critics of the Obama administration’s practice in this regard were also among the loudest critics of the Bush administration’s outreach efforts. That includes me. Though generally supportive of Bush counterterrorism policies, Gerstein fairly describes my National Review columns and my books (Willful Blindness and The Grand Jihad) as “withering” when it comes to Muslim outreach, regardless of whether Republicans or Democrats were reaching out.
But partisanship aside, there are several reasons the Obama administration’s solicitude toward Islamists is even more alarming than prior episodes, inexcusable though they were.
1. In his 2009 Cairo speech, President Obama falsely claimed that the ability of Muslims to contribute to charity had been impeded by U.S. legal restrictions. There are no legal impediments to charitable giving that single out Muslims. Instead, there are laws that prohibit material support to terrorism. These laws, which apply to terrorism committed by any group, are applied most often to Muslims — because most anti-American terrorism is carried out by Islamists. And the device most often used to route support to terrorist organizations is the charitable front: outfits such as HLF that are ostensibly charities but actually serve as piggy banks for jihadists.
Consequently, the only way to ease the purported restrictions on Islamic charitable giving, as the president pledged to do in Cairo, is to stop enforcing the material-support laws in cases involving Muslim charities. If that were being done, it would severely compromise national security, as attested by the fact that material-support charges have become a staple of terrorism prosecutions since 9/11. Say what you will about Bush-era Muslim outreach, the Bush Justice Department did authorize the HLF case. The pressing question is whether the Obama administration has put guidelines in place — formally or informally — that prevent cases like HLF from being pursued at all. On that score, not only have the HLF unindicted coconspirators been spared, there has been a noticeable drop-off in enforcement action against Islamic charities overall. Does anyone really think they all stopped supporting Hamas, al-Qaeda, and the rest once Obama was inaugurated?
2. Whatever may have been the state of play in 2004 when the Bush Justice Department reportedly refused to indict CAIR and other coconspirators, a great deal has changed since then. To begin with, the Muslim Brotherhood’s American enterprise — which involved not only the support of Hamas but also a plot to destroy America from within with the assistance of its Islamist partner organizations — is no longer just an allegation. It has been proved in court. Defendants were convicted and given severe sentences, and the Justice Department duly decorated the prosecutors with its highest honors for their valuable contribution to our national security. Thus, common sense says any person or organization provably complicit in the conspiracy — a conspiracy to undermine our national security — warrants prosecution.
Moreover, since 2004, federal courts have ruled that the government had ample basis for describing groups like CAIR, ISNA, and NAIT as unindicted coconspirators. And that conclusion was based just on the evidence presented during the HLF litigation. The world has not stood still since then. The investigation has continued and, as Josh Gerstein notes, a federal grand jury acquired a trove of internal CAIR records in 2009 from David Gaubatz, a former military-intelligence officer who, along with investigative journalist Paul Sperry, wrote Muslim Mafia: Inside the Secret Underworld That’s Conspiring to Islamize America, a book about how Gaubatz’s son, Chris, infiltrated CAIR. This may explain why, according to Poole’s source, the Justice Department still has “boxes and boxes of stuff [i.e., evidence] that has never even been translated” and retains “a mountain of evidence against all these groups [i.e., the unindicted coconspirators] that was never used during the Holy Land trial, and it’s damning. We’ve got them on wiretaps.”
If the Bush Justice Department made a bad decision in 2004, that’s no reason to repeat it, especially given that Obama ran as the anti-Bush. But whatever decision the Bush Justice Department may have made seven years ago, it cannot be a precedent for a situation that now involves significantly different facts.
3. Holder has made a great show of championing the effectiveness of the civilian courts as a counterterrorism tool. In reality, as I’ve argued before, he has misrepresented his critics. No serious person has ever suggested that the civilian prosecution of terrorism cases is not vital to our national security. The contention, instead, is that alien enemy combatants should not be given the advantages of civilian due process during wartime. As for all other types of terrorism cases, national-security conservatives and most Americans would like to see more civilian terrorism cases, not fewer.
In particular, we want to see more material-support cases. The material-support statutes enable investigators to disrupt terror cells in their infancy, before their atrocious schemes can gather resources and momentum. They are vital to any counterterrorism strategy that seeks to prevent terrorist attacks from happening — in contrast to the pre-9/11 approach, which supposed it sufficient deterrence to prosecute terrorists after they had struck and people had been killed.
Rather than dithering for two years over whether Khalid Sheikh Mohammed should get a military commission or civilian trial, wouldn’t it be preferable for the Justice Department to prove the seriousness of the attorney general’s claim that civilian prosecutions improve our security? Holder could do that by redoubling the department’s efforts on the cases everyone (except perhaps President Obama) agrees DOJ should be doing: provable material-support cases against Islamist organizations that have used charitable fronts to underwrite terrorists.
4. Finally: There is willful blindness, and then there is embracing the enemy. It was wrong for the Bush administration, and the Clinton administration before it, to coddle Islamists under the harebrained theory that this outreach somehow improves our security. In fact, the coddling empowers Islamists to infiltrate our agencies, and the prestige it gives organizations such as CAIR and ISNA makes the work of true Muslim moderates all the more difficult. But however wayward those Bush and Clinton policies may have been, Obama’s policies create a greater peril.
Obama-administration officials have airbrushed the Muslim Brotherhood, portraying fundamentalist radicals who seek to vanquish the West as “largely secular” “moderates” with whom our government should be working cooperatively. The president invited the Brotherhood to his Cairo speech, even though it was at the time a banned organization in Egypt — and even though only a few months earlier the HLF trial proved the existence of a Brotherhood plot to sabotage our country while promoting Hamas’s mission to destroy Israel.
That sabotage saliently involved Islamist organizations in the United States, such as ISNA. In 2008, the Justice Department under the Bush administration was portraying ISNA as a coconspirator in a terror-support plot and demonstrating that it had helped set up the HLF. In 2009, the Obama administration was dispatching Valerie Jarrett, one of the president’s closest advisers, to give the keynote address at ISNA’s annual convention.
There’s no “Bush did it, too” defense to that one.
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.