RUTHFULLY YOURS

On Tuesday, I was a panelist at the Senate Judiciary Committee’s hearing on “Willful Blindness: Consequences of Agency Efforts to Deemphasize Radical Islam in Combating Terrorism.”

The hearing was held by the Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts,” chaired by Senator Ted Cruz (R. Tex.). I was one of six panelists. Video of the hearing, which lasted about three hours, is available on the Judiciary Committee website (here). The written testimony I submitted prior to the hearing is (here).

I was also asked to make an opening statement. Below is the prepared version of that statement (which I had to edit down a bit for purposes of time while delivering it at the hearing).

————————-

Chairman Cruz, members of the committee, my name is Andrew C. McCarthy. For over eighteen years, I was a federal prosecutor in the Southern District of New York, retiring from the Justice Department in 2003 as the chief assistant United States attorney in charge of the Southern District’s satellite office.

I worked on terrorism investigations and trials in various capacities following the jihadist bombing of the World Trade Center on February 26, 1993, and continuing through the end of my Justice Department tenure. This included several weeks helping supervise our command post near Ground Zero in lower Manhattan in the aftermath of the jihadist atrocities of September 11, 2001, in which nearly 3,000 Americans were killed by al-Qaeda jihadists in the worst domestic attack by a foreign enemy in American history.

From 1993 through early 1996, I led the investigation and successful prosecution of the jihadist cell that carried out the World Trade Center bombing and subsequently plotted an even more ambitious attack: simultaneous bombings of various New York City landmarks. In October 1995, after a nine-month trial, all defendants were convicted of various offenses, principally including seditious conspiracy to wage a war of urban terrorism against the United States.

In light of our discussion about radical Islam this afternoon, it is worth noting that our case taught me there are very much two sides to this story. The first Muslims I encountered in our case were not terrorists. They were Muslims seized with American patriotism who helped us infiltrate and disrupt the jihadist cell led by Omar Abdel Rahman, better known as “the Blind Sheikh.”

Following my retirement from the Justice Department, I worked on a bipartisan task force of former government officials in connection with an effort to assist Congress in assessing amendments to the October 2001 USA PATRIOT Act. I also served for several months as a consultant to the deputy secretary of Defense, during the time when the Defense Department was both cooperating with the 9/11 Commission and attempting to structure a military justice system tailored to the detention and trial of alien enemy combatants.

It is likely the largest unauthorized disclosure of tax-return information in history: the transfer of some 1.25 million pages of confidential tax returns to the Department of Justice in October of 2010. And some say it may have been illegal.

The documents, which consisted chiefly of non-profit tax returns, were transferred to the DOJ’s criminal division from the IRS at the request of Lois Lerner, who wanted to get the information to the DOJ in advance of a meeting where she and several of the attorneys in the public integrity section of the department’s criminal division discussed their concerns about the increasing political activity of non-profit groups.

The Justice Department later told Congress that the documents contained confidential taxpayer information protected by federal law. The nature of that information hasn’t been made public, but the so-called “Schedule B” form, for example, which non-profit groups are required to attach to their tax returns, known as 990s, asks for the names and addresses of donors to the organization.

But we already knew that. The transfer of information at Lerner’s request came to light during a congressional investigation in 2014. What we know now, thanks to additional documents unearthed in years-long litigation by the good-government group Cause of Action, is that Lerner almost certainly broke the law when she transferred the documents. That casts a new light on the Justice Department’s decision last year not to prosecute Lerner, who had become the face of the IRS’s ham-handed effort to crack down on right-leaning groups, but against whom a criminal case might have been difficult to build.

“It took an organization over 50 months of investigation and multiple lawsuits to get clarity on the IRS’s own compliance with the rules it enforces against others,” says Dan Epstein, the executive director of the Cause of Action Institute and a former attorney for the House Committee on Oversight and Government Reform. “The IRS, in the midst of its political targeting of groups engaged in policy advocacy, was engaging in the disclosure of millions of records aimed at ginning up prosecutions of these groups without going through the legally required channels.”

Federal law prohibits the IRS from sharing tax returns filed with the agency, with very limited exceptions. “The IRS has a special obligation to keep information confidential, that’s how our tax system works,” says Eileen O’Connor, who served as assistant attorney general for the tax division of the DOJ in the George W. Bush administration.

Do failures and lies matter any longer? If you are a prominent Democratic politician, what exactly is the level of wrongdoing that will end your career?

Reading the long-awaited report from the House Select Committee on Benghazi and the associated media coverage, I was struck by the sheer scale of the failures and the deceptions surrounding the terror attack on the Benghazi compound, and by the mainstream media’s dismissiveness. Here’s the opening paragraph of the New York Times’s story on the report:

Ending one of the longest, costliest and most bitterly partisan congressional investigations in history, the House Select Committee on Benghazi issued its final report on Tuesday, finding no new evidence of culpability or wrongdoing by Hillary Clinton in the 2012 attacks in Libya that left four Americans dead.

And here’s the Washington Post on the report:

A final report issued by the Republican majority that investigated the 2012 attacks in Benghazi, Libya, found fault with virtually every element of the executive branch response to the attacks but provided no new evidence of specific wrongdoing by then–Secretary of State Hillary Clinton.

This is an extraordinary response to a report that comprehensively details one of the most shameful episodes in recent American diplomatic and military history.

Clinton’s State Department failed to adequately protect its diplomats in Libya, with the Obama administration so intent on avoiding “boots on the ground” in the aftermath of its Libyan air war that it left Americans dangerously exposed even as the jihadist threat was plainly and clearly ramping up. The report details at least ten previous terror attacks in Benghazi, including two IED attacks on the American compound, yet the State Department had decreased its security there in the months before Ambassador Chris Stevens and four others were killed.

Obama’s Pentagon failed to mobilize assets to protect those same Americans even as they endured an hours-long assault on September 11, 2012. One of the most painful elements of the report is its description of exactly how difficult it was for the Pentagon to ramp up even the quick-strike elements of the most powerful military in the history of the world. Fighters were in one location, tankers in another. Ground assets were in one place, air transport in another. It took hours for clear commands from the White House and Pentagon to filter sufficiently far down the ranks to spur actual military activity.

This month, mosquitoes capable of transmitting Zika start biting in Florida, the Gulf states and southern California. It’s the “virus from hell,” warns Peter Hotez, Dean of Baylor University’s School of Tropical Medicine.

Hotez is urging women to delay getting pregnant. He worries expectant mothers in these states are already being bitten and next spring they’ll “start giving birth to brain-damaged infants.” Doctors are investigating whether infants – up to age 1 – are in danger from these mosquito bites because their brains are still developing.

Meanwhile, New Yorkers face a different threat: sexual transmission. It’s unknown whether local mosquitoes will spread the virus. But even without mosquitoes biting, New York already has more Zika infections than any other state.

The virus is being brought here by immigrants and travelers exposed in infested areas like Puerto Rico, Brazil, Honduras and El Salvador. Their sex partners need to know the virus can survive in semen for six months or longer and also possibly spread through deep kissing.

Dating tip: Ask to see his passport.

The gravest danger is to women who can get pregnant, but taxpayers will also feel the impact. Area hospitals, including Mount Sinai and North Shore University Hospital, are preparing for a surge in Zika maternity cases. Health officials refuse to disclose how many will be uninsured immigrants whose health bills will be paid by taxpayers.

Any pregnant woman – here legally or not – can get emergency Medicaid to cover prenatal care and child birth. Babies born in the United States are automatically eligible for lifetime care if disabled, which, in the case of Zika-caused ailments, could cost $10 million per child.

Anticipating public outrage, the Centers for Disease Control and Prevention is hiding the issue. The agency labels all Zika infections brought into the United States as “travel related” – lumping together Americans who caught it on a trip and migrants coming here for care.

Texas clinics are already seeing pregnant women from Central America with Zika.