RUTHFULLY YOURS

Omar Abdel Rahman, the notorious “Blind Sheikh” who died on Friday night while serving his life sentence in federal prison, was never shy about being a terrorist. As he put it:

What kind of name is this? Why are we afraid of it? Why do we fear the word terrorist? If the terrorist is the person who defends his right, so we are terrorists. And if the terrorist is the one who struggles for the sake of God, then we are terrorists. We . . . have been ordered with terrorism because we must prepare what power we can to terrorize the enemy of Allah and your enemy. The Koran says “to strike terror.” Therefore, we don’t fear to be described with “terrorism.” . . . They may say, “He is a terrorist, he uses violence, he uses force.” Let them say that. We are ordered to prepare whatever we can of power to terrorize the enemies of Islam.

Before there was an al-Qaeda or an ISIS, there was the Blind Sheikh, known to his worldwide following as “the emir of jihad.” And he bears much of the responsibility — he would think of it as the credit — for what followed him. Indeed, bin Laden credited Sheikh Abdel Rahman with the fatwa (the sharia-law edict) that approved the 9/11 jihadist attacks in which nearly 3,000 Americans were murdered. Abdel Rahman had indeed issued such a fatwa:

Muslims everywhere to dismember their nation, tear them apart, ruin their economy, provoke their corporations, destroy their embassies, attack their interests, sink their ships, . . . shoot down their planes, [and] kill them on land, at sea, and in the air. Kill them wherever you find them.

Having been the lead prosecutor in the trial at which he was convicted, I find that barely a day goes by that I don’t ruefully think about this. For all the praise we received for a job well done — and I am immensely proud of the work we did — we only managed to imprison him. We did not stop him.

Abdel Rahman was the central character in a memoir I wrote about the case nearly a decade ago, Willful Blindness. The title has become something of catch phrase describing the wayward American approach to counterterrorism. I meant it as something more than that — a contrast: the steely determination that underlay Abdel Rahman’s clarity of purpose that the world be ruled by Islamic law, versus our own conscious avoidance of the sharia-supremacist ideology that drives the jihadist threat, and diffidence about whether our own liberty culture is worth defending.

He was raised in the tiny Nile Delta town of al-Gamalia, where he lost his sight to juvenile diabetes in 1942, at the age of four. The sickly boy was a prodigy, memorizing the Koran at an early age and developing into a renowned scholar of Islamic jurisprudence — the discipline in which he earned a doctorate, with distinction, at storied al-Azhar University, the seat of Sunni Islamic learning since the tenth century. Abdel Rahman was deeply influenced by Ibn Taymiyyah, the 14th-century docent who had come of age in a soul-searching time for Islamic fundamentalism: after invading Mongols routed the Abbasid Caliphate, laying Baghdad to waste. Taymiyyah championed a return to basics: a literalist interpretation of scripture and the notion that the original Islamic communities forged by the prophet Mohammed were the ideal to which all humanity must aspire.

Abdel Rahman was also affected by contemporary followers of Taymiyyah. Interestingly, one was the Shiite jihadist icon, Ayatollah Ruhollah Khomeini. Notwithstanding their theological differences, Abdel Rahman perceived in Khomeini the possibilities of Islamic revolution and the exploitation of what he saw as American weakness — particularly by Hezbollah, Khomeini’s forward jihadist militia that, among other atrocities, killed 241 U.S. Marines in their Beirut barracks in 1983. “If Muslim battalions were to do five or six operations to the Americans in surprise attacks like the one that was done against them in Lebanon,” the Blind Sheikh urged, “the Americans would have exited [the Persian Gulf] and gathered their armies and gone back . . . to their country.” It was a recruitment speech he delivered hundreds of times.

The self-appointed female nation, outraged by the words and deeds of the new president, took to the streets on the 21st of January, the day after the inauguration. Protestors marched in a compact mass estimated at 700,000 to a million in Washington DC, with another million tallied in national and international sister marches.* Did anyone question the misnomer of those hand-knit pink pointy eared pussyhats? There’s nothing pussy about the cat’s ears for heaven’s sake, it’s about the fur! What kind of PC turned the erotic anatomical reference into silliness?

MARCH CSPAN WOMEN LIBERAL

The world’s media gushed with enthusiasm over the movement’s scope and message, which was clicked into contemporary history on its own terms, in the name of women’s dignity. The good gals gave the Bad Guy an earful! So why bother taking a second look days later when disturbing information about one of the co-organizers surfaced? Palestinian-American Linda Sarsour, born in Brooklyn, praised by some as a champion civil rights activist, disqualified by others as a Hamas fellow traveler is an uninhibited defender of sharia. As executive director of the New York branch of the Arab American Association, created right after 9/11 to protect Muslims from the expected backlash, Sarsour was instrumental in blocking the surveillance program of New York mosques and closing public schools for the Muslim holidays of Eid al-Fitr and Eid al-Adha. Poster girl for sharia, a proud Sarsour in tightly drawn hijab touts: “You’ll know when you’re living under Sharia Law if suddenly all your loans & credit cards become interest free. Sound nice, doesn’t it?”

sansour tweet

No need to mention the rest: chopping off the hands of the thief, stoning the adulterous woman, killing the apostate and other brutalities. A young American audience delighted by the sharia financial bargain won’t look any further. Like the courageous defenders of women’s rights dressed in Free Birth Control Free Palestine t-shirts. The great grandmothers of these American girls already had access to birth control-though it was reserved for married women and they had to pay for it-long ago when “Palestine” designated the land of the Jews.

Sarsour is pro-BDS and anti-Zionist: (tweet & poster, 2012) “Nothing is creepier than Zionism.” She defends Black Lives Matter-“My hijab is my hoodie”-and hangs out with choice Muslim Brotherhood fronts. Awarded the Champion of Change honors in 2011, she visited the Obama White House at least seven times. CNN’s own Van Jones, tapped to ward off questions raised about Sarsour’s feminist creds, deftly avoided specifying a single detail of the investigative articles that he dismissed as fake news from the far right gutter press. Linda’s a sister, said Jones, a fantastic activist; those people trying to tear her down are nothing but bigots. Don’t worry, sistah, we have your back. The anchor smiled in agreement. Case closed.

Who are we? asked the liberal social scientist Samuel Huntington over a decade ago in a well-reasoned but controversial book. Huntington feared the institutionalization of what Theodore Roosevelt a century earlier had called “hyphenated Americans.” A “hyphenated American,” Roosevelt scoffed, “is not an American at all.” And 30 years ago, another progressive stalwart and American historian Arthur Schlesinger argued in his book The Disuniting of America that identity politics were tearing apart the cohesion of the United States.

What alarmed these liberals was the long and unhappy history of racial, religious, and ethnic chauvinism, and how such tribal ties could prove far stronger than shared class affinities. Most important, they were aware that identity politics had never proved to be a stabilizing influence on any past multiracial society. Indeed, most wars of the 20th century and associated genocides had originated over racial and ethnic triumphalism, often by breakaway movements that asserted tribal separateness. Examples include the Serbian and Slavic nationalist movements in 1914 against Austria-Hungary, Hitler’s rise to power on the promise of German ethno-superiority, the tribal bloodletting in Rwanda, and the Shiite/Sunni/Kurdish conflicts in Iraq.

The United States could have gone the way of these other nations. Yet, it is one of the few successful multiracial societies in history. America has survived slavery, civil war, the Japanese-American internment, and Jim Crow—and largely because it has upheld three principles for unifying, rather than dividing, individuals.

The first concerns the Declaration of Independence and the American Constitution, which were unique documents for their time and proved transcendent across time and space. Both documents enshrined the ideal that all people were created equal and were human first, with inalienable rights from God that were protected by government. These founding principles would eventually trump innate tribal biases and prejudices to grant all citizens their basic rights.

Donald Trump was elected president last November by winning 306 electoral votes. He pledged to “drain the swamp” in Washington, D.C., to overturn the system of politics that had left the nation’s capital and major financial and tech centers flourishing but large swaths of the country mired in stagnation and decay. “What truly matters,” he said in his Inaugural Address, “is not which party controls our government, but whether our government is controlled by the people.”

Is it? By any historical and constitutional standard, “the people” elected Donald Trump and endorsed his program of nation-state populist reform. Yet over the last few weeks America has been in the throes of an unprecedented revolt. Not of the people against the government — that happened last year — but of the government against the people. What this says about the state of American democracy, and what it portends for the future, is incredibly disturbing.

There is, of course, the case of Michael Flynn. He made a lot of enemies inside the government during his career, suffice it to say. And when he exposed himself as vulnerable those enemies pounced. But consider the means: anonymous and possibly illegal leaks of private conversations. Yes, the conversation in question was with a foreign national. And no one doubts we spy on ambassadors. But we aren’t supposed to spy on Americans without probable cause. And we most certainly are not supposed to disclose the results of our spying in the pages of the Washington Post because it suits a partisan or personal agenda.

Here was a case of current and former national security officials using their position, their sources, and their methods to crush a political enemy. And no one but supporters of the president seems to be disturbed. Why? Because we are meant to believe that the mysterious, elusive, nefarious, and to date unproven connection between Donald Trump and the Kremlin is more important than the norms of intelligence and the decisions of the voters.

But why should we believe that? And who elected these officials to make this judgment for us?

Nor is Flynn the only example of nameless bureaucrats working to undermine and ultimately overturn the results of last year’s election. According to the New York Times, civil servants at the EPA are lobbying Congress to reject Donald Trump’s nominee to run the agency. Is it because Scott Pruitt lacks qualifications? No. Is it because he is ethically compromised? Sorry. The reason for the opposition is that Pruitt is a critic of the way the EPA was run during the presidency of Barack Obama. He has a policy difference with the men and women who are soon to be his employees. Up until, oh, this month, the normal course of action was for civil servants to follow the direction of the political appointees who serve as proxies for the elected president.

National Security Adviser Michael Flynn was dismissed amid a torrent of mainstream-media reporting and disgraceful government leaks (but I repeat myself). Among the most intriguing was a New York Times report the morning after Flynn’s resignation, explaining that the former three-star Army general and head of the Defense Intelligence Agency was “grilled” by FBI agents “about a phone call he had had with Russia’s ambassador.”

No fewer than seven veteran Times reporters contributed to the story, the Gray Lady having dedicated more resources to undermining the Trump administration than the Republican Congress has to advancing Trump’s agenda. Remarkably, none of the able journalists appears to have asked a screamingly obvious question — a question that would have been driving press coverage had an Obama administration operative been in the Bureau’s hot seat.

On what basis was the FBI investigating General Flynn?
To predicate an investigation under FBI guidelines, there must be good-faith suspicion that (a) a federal crime has been or is being committed, (b) there is a threat to American national security, or (c) there is an opportunity to collect foreign intelligence relevant to a priority established by the executive branch. These categories frequently overlap — e.g., a terrorist will typically commit several crimes in a plot that threatens national security, and when captured he will be a source of foreign intelligence.

Categories (a) and (b) are self-explanatory. It is category (c), intelligence collection, that is most pertinent to our consideration of Flynn.

At first blush, this category seems limitless: unmooring government investigators from the constraints that normally confine their intrusions on our liberty (e.g., snooping, search warrants, interrogations) to situations in which there is real reason to suspect unlawful or dangerous activity. Intelligence collection, after all, is just the gathering of information that can be refined into a reliable basis for decisions by policymakers.

As we shall see, it is not limitless. But we should understand why it needs to be broad.

Most people think of the FBI as a federal police department that does gumshoe detective work, albeit at a high level and with peerless forensic capabilities. That, indeed, is how I thought of the FBI for my first eight years as a federal prosecutor, before I began investigating terrorism cases and became acquainted with the FBI’s night job. Turns out the FBI’s house has a whole other wing, separate and apart from its criminal-investigation division. Back in pre-9/11 days, this side of the house was called the foreign counter-intelligence division. Now, it is the national-security branch. Whatever the name, it is our domestic security service, protecting the nation against hostile foreign activity — espionage, other hostile intelligence ops, terrorism, acquisition of technology and components of weapons of mass destruction, and so on.

Most of the national-security branch’s work is done in secret, never intended to see the light of day in courtroom prosecutions. In some countries, including Britain, domestic security is handled by an agency (MI5) independent of domestic law enforcement (MI6). In our country, it is handled by a single agency, the FBI, based on the assumption (a sound one in my opinion) that the two missions are interrelated and that one can leverage the other more easily under one roof.

The FBI also has the foreign-intelligence gig because the Bureau is fully constrained by the Constitution and other federal law. Our other intelligence agencies — the best example is the CIA — are prohibited from “spying” inside the United States, largely because their foreign operations are outside the jurisdiction and fetters of American law. We understand that our security requires that our domestic security service have wide intelligence-gathering latitude; but we do not permit it to be limitless — it must respect our constitutional rights.

So how do we make sure the FBI does that if we’re giving it license to investigate people even when it does not suspect a crime or a threat? We do it by dividing the subjects of its intelligence investigations into three classifications and giving the FBI commonsense authority to deal with each.

1. Aliens acting as overt foreign agents
The first classification, and the easiest to grasp, consists of aliens who overtly work as foreign agents. Such a person — for example, Sergey Kislyak, the Russian ambassador with whom General Flynn communicated — is a non-American (i.e., one who does not have the full-blown constitutional rights of an American citizen) and is openly acting on behalf of a foreign regime — in the case of Russia, a regime notoriously hostile to U.S. interests. Clearly, there is no problem with his being targeted by the FBI for intelligence-gathering purposes.

Note that, because the FBI is constrained by federal law, even overt foreign operatives have significant protections. It is still necessary, for example, for the FBI to get a judicial warrant to search a foreign agent’s home or intercept his phone and e-mail communications — and more on those warrants momentarily. Within the wide parameters of federal law, though, the FBI is free to monitor an overt foreign operative’s activities very aggressively, even when there is no suspicion of criminal wrongdoing or national-security threats. The presumption that our government is entitled to observe what foreign governments are up to on our soil is sufficient — and, of course, American officials operating overseas are routinely monitored by host governments (most of which are not so fastidious about civil liberties).