RUTHFULLY YOURS

http://www.nationalreview.com/articles/print/283999

Ahmadinejad is not a law-enforcement problem.

For a guy who generally seems solid on national security, Mitt Romney flashed some disturbing weakness at last night’s foreign-policy debate among the Republican presidential hopefuls. When it comes to Iran, the most immediate threat to the United States and its interests, the Romney strategy is — wait for it — to indict Pres. Mahmoud Ahmadinejad. It was as if the governor had missed the 1990s and its painful lesson about the wages of treating a national-security challenge like a mere crime problem.

In June 1998, the Justice Department indicted Osama bin Laden. It was the ultimate demonstration that the United States government lacked resolve and seriousness. Bin Laden was not a mafia don running a racket. He and his al-Qaeda network constituted a ruthless foreign enemy imperiling our national security. By mid-1998, their operatives had been complicit in several terrorist attacks — very likely including collusion with Iran in the 1996 Khobar Towers bombing, which killed 19 U.S. Air Force servicemen in Saudi Arabia. Bin Laden had very publicly declared war on the United States and called for the killing of Americans, including civilians, all over the world.

“Due process” in bin Laden’s case was not the federal rules of criminal procedure; it was the Marines and the Navy SEALs. The situation cried out for American military might, yet we resorted to a grand jury. The signal that we lacked the will to defend ourselves was plain enough, but bin Laden’s ensuing terror campaign made it crystal clear: the August 1998 bombings of the American embassies in Kenya and Tanzania that killed over 220 people; the October 2000 bombing of a naval destroyer, the U.S.S. Cole, killing 17 American sailors; and finally, the attacks of Sept. 11, 2001, in which nearly 3,000 were slaughtered.

As should have been obvious at the time, bin Laden’s indictment was, at best, an empty gesture. We had no law-enforcement capability to arrest him. He was an insulated foreign enemy, plotting from overseas havens where the writ of American courts does not run and American law-enforcement agencies have no authority to operate. These foreign havens were sanctuaries because the sovereign powers favored him over the United States.

Thirteen years elapsed before we were able to capture and kill bin Laden. When that finally happened, it had nothing to do with the indictment or the criminal-justice processes. It happened because we went to war. It happened because the commander-in-chief sought and obtained congressional authorization to use military force, eventually resulting in a combat operation expertly carried out by American special forces.

Consequently, one would think we’d by now have learned a searing lesson: Responding to a hostile foreign power’s threat to our national security by a mere indictment is a provocative display of weakness. If they threaten mass murder and you counter with an arrest warrant, that only guarantees that there will be more terrorist threats and attacks.

That’s why Governor Romney’s remarks about Iran last night were so baffling. After accusing President Obama of failing “to lead with strength,” he declared that the “right course in America is to stand up to Iran” by implementing his bold plan to “indict Ahmadinejad for violating . . . the Genocide Convention.” It would be worth asking whether the governor was kidding if the matter were not so serious.

From a practical standpoint, the proposal is frivolous. How, for example, does Governor Romney suppose we are going to get custody of Ahmadinejad? Unlike bin Laden, who managed to elude us for 13 years, Ahmadinejad is a head of state. Does Mitt figure the mullahs are just going to hand him over to us? While the Taliban and rogue elements of the Pakistani government were sympathetic to bin Laden, bin Laden was not one of them. The Iranian government is apt to be considerably more protective of its own leader, wouldn’t you think? After all, those genocidal rants that Mitt wants to indict Ahmadinejad over are actually statements of official Iranian policy. Given that the regime’s security forces shot their own citizens in the street in order to help Ahmadinejad steal an election, does Governor Romney really suppose they are going to stand down in deference to an American grand jury? Is the FBI going to knock on Ahmadinejad’s door in Tehran after explaining to the nice Revolutionary Guard officers that the Bureau is in town to put cuffs on their president?

And then there’s the little matter of the forum, which is not laid out in the Genocide Convention itself. Where exactly does Mitt figure the Ahmadinejad trial is going to take place? Are we going to an American civilian court? Would President Romney let a United States judge decide how much of our classified national-defense information should be disclosed to Ahmadinejad and his lawyers in pretrial discovery?

Or was the governor talking about a trial in the International Criminal Court? The ICC claims that genocide prosecutions are part of its mandate . . . but the United States does not recognize this imperious tribunal’s jurisdiction. Pres. George W. Bush wisely refused to join the ICC. He understood that signing on would legitimize efforts by the “international community’s” anti-American factions to criminalize actions taken in America’s national defense. If you had told me that in 2013, the president would have us in the ICC, I would have assumed that meant Obama had won reelection.

At the start of last night’s debate, Governor Romney made a point of emphasizing that “Newt Gingrich was right” about the need to draw a categorical distinction between national security and law enforcement. The governor explained that prosecution under the criminal law was reserved for “those people who commit crimes,” but that “a very different form of law” — the law of war — was to be invoked against those who use terrorism as a “tool of war” to “fight America.”

When it got down to concrete cases, though, Romney huffed and puffed and promised to indict one of the world’s leading terror masters — Ahmadinejad, leader of a country that has been at war with the United States for 30 years, face of a regime that plots to kill Americans on the days when it is not actually killing Americans.

Governor Romney is ordinarily very reassuring when he talks about American national security. Maybe he misspoke, or maybe he just hasn’t given the matter sufficient thought. In either event, his bizarre statements about indicting Iran’s president surely do not square with his forceful insistence that foreign enemies must not be treated like accused criminals, the latter of whom enjoy our justice system’s presumption of innocence. A revision is in order, forthwith. To be the Republican nominee, a candidate must show that he grasps the folly of Clinton-era counterterrorism. Even President Obama, who campaigned on restoring Clinton’s law-enforcement approach to the jihad, reluctantly concluded that its fecklessness only encourages our enemies’ aggression.

— 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.