RUTHFULLY YOURS

Could it be more fitting that, in the criminal complaint against Hamas leaders unsealed in Manhattan federal court today, the lead defendant charged by the Justice Department is Ismael Haniyeh. Yes, if you were wondering, that would be the Ismael Haniyeh who was killed during a daring Israeli Defense Forces operation in Tehran about five weeks ago (on July 31).

If there was any doubt about it, “September 10 counterterrorism” is back.

The expression refers to the eight years between the 1993 bombing of the World Trade Center and the destruction of that complex in the jihadist atrocities that killed nearly 3,000 Americans on September 11, 2001. That is the period, spanning the Clinton administration, when our government decided to regard jihadist terrorism as a law-enforcement problem to be addressed foremost by courtroom prosecutions.

Merrick Garland, now the Biden-Harris administration attorney general, was a top lawyer in the Clinton Justice Department. The Clinton strategy was not the Justice Department’s doing; America’s counterterrorism strategy is the president’s call. But having been there at the time, I can attest that DOJ was the strategy’s most enthusiastic advocate.

I can further attest that the strategy was a national-security train wreck.

It makes sense, it should be needless to say, to conduct courtroom prosecutions of terrorists who are captured trying to carry out attacks in the United States during ostensible peacetime. There is an argument (I don’t subscribe to it, but it is commonly held nonetheless) that such prosecutions are required by the Constitution, especially if some of the terrorists happen to be American citizens (as was not uncommon in the Clinton-era terrorism prosecutions). It makes even more sense to prosecute material supporters of terrorism in order to choke off the funding and recruitment of foreign terrorist organizations — a significant improvement in American counterterrorism law enacted in the mid Nineties.

But that said, prosecution in criminal court, where our terrorist enemies must be presumed innocent and where we must provide to them — under due-process discovery rules — intelligence about their organizations gathered in government files, is a lunatic approach.

It is utterly unserious. Jihadist organizations operate in foreign safe havens outside the United States, where the writ of our court does not run and where our law-enforcement agencies do not operate, much less exercise any authority. They can’t be reached by American criminal prosecution. Who is going to help the FBI execute arrest warrants against Hamas in Gaza? The “government” in Gaza is Hamas. The “government” in the West Bank would be Hamas if the Palestinians there were permitted to vote.

Under the circumstances, it’s just as well that the lead defendant in DOJ’s complaint is Hamas’s recently “martyred” emir. In making arrests, the FBI is apt to get about as much from the 40 virgins that Haniyeh’s confederates imagine he’s cavorting with as it will from the “Palestinian Authority,” or from the Biden-Harris administration’s favorite “major non-NATO ally,” Qatar (Iran’s cat’s-paw, which was hosting Haniyeh and other Hamas heavyweights in luxury on 10/7).

Despite being among the first groups ever designated as a foreign terrorist organization when our government began that process almost 30 years ago, Hamas has scoffed at the United States, holding five Americans hostage for nearly a year before killing Hersh Goldberg-Polin in cold blood last week to prevent his rescue (and that of five other hostages) by the IDF. The jihadist organization has been confident that, far from taking serious measures against it, the Biden-Harris administration would continue negotiating with Hamas’s enablers and hectoring Israel — the only actor actively fighting to get the hostages back and defeat Hamas — to stop its combat operations.

Weakness is provocative. As was true in the Nineties, when al-Qaeda conducted repeated attacks against American targets with impunity, if the enemy is mass-murdering and terrorizing a nation’s citizens, and the response of that nation’s government is to file indictments and issue subpoenas, the guaranteed result is more mass murder and more terror — more abductions, more rapes, more ransom demands.

A serious nation does not respond to terrorist murders of its citizen on foreign soil by issuing a criminal complaint. Remember al-Qaeda chiefs Osama bin Laden, Ayman Zawahiri, and Khalid Sheikh Mohammed? For years and years they orchestrated terrorist attacks with impunity while under Justice Department charges; they weren’t “neutralized” — by kill or capture — until combat operations under the laws of war were employed.

It is obvious that prosecutors have been working on the Hamas complaint for weeks — presumably since well before Haniyeh was assassinated.

It’s telling that the Justice Department chose to proceed by criminal complaint rather than an indictment. An indictment can be a “speaking” instrument, reciting a narrative framework for the charges, but often it just states the statutory offenses alleged. To get an indictment, the Justice Department has to present the case to a grand jury — which might ask nettlesome questions, like: “Why are we charging a dead guy?” Because an indictment is a necessary step before a defendant can be tried, it usually conveys a seriousness of purpose, a readiness to proceed with prosecution.

By contrast, a criminal complaint is just a sworn affidavit by a law-enforcement officer (here, as in most federal cases, it’s an FBI agent assigned to the investigation) attesting that there is probable cause to charge various offenses. Today’s complaint describes seven such crimes: two conspiracies to provide material support to a terrorist organization, a conspiracy to murder Americans, and conspiracies to bomb, to use weapons of mass destruction, to finance terrorism, and to violate the International Emergency Economic Powers Act. The complaint stresses that many of these conspiracies resulted in deaths, meaning that, if there were any chance of this case’s being formally indicted and tried someday, the death penalty would be on the table. That might be more impressive if the Biden-Harris administration did not have a moratorium on the actual administration of capital punishment.

After reciting the potential charges, the FBI agent follows with a deep dive into the history of Hamas, from its founding in 1987 through its ongoing barbarities and the material support it receives from Iran (but, of course, no mention of Qatar).

Understand: This is not so much a charging document as it is a campaign document.

Haniyeh is not the only “defendant” who will never see the inside of an American courtroom. Among others, the six include Yahyah Sinwar, the current Hamas chief, who is holed up in the Gaza tunnels (using hostages as human shields as well as bargaining chips); and Haniyeh’s longtime sidekick, Khaled Meshaal, who in recent years has customarily resided in either Qatar or his other safe haven, Turkey — our NATO “ally,” run by Muslim Brotherhood collaborator, Recep Tayyip Erdogan. Unless their patrons can save them, the five living defendants named in the complaint will be killed or captured by the IDF. They are not coming to the United States.

If you lived through the Obama-Biden years, when all utterances of Islam, jihad, and the Muslim Brotherhood were verboten, you will have to suppress a chuckle or two while reading the overview description of Hamas in the Biden-Harris Justice Department’s complaint:

Harakat al-Muqawamah al-Islamiyya, commonly known as Hamas, was founded in 1987 as an outgrowth of the Palestinian branch of the Muslim Brotherhood. From its inception, Hamas’s stated purpose has been to create an Islamic Palestinian state throughout Israel by eliminating the State of Israel through violent holy war, or jihad. Hamas has not only directed its violence and terrorism against Israeli targets in furtherance of that goal; Hamas’s leaders have also assailed the United States and American citizens, in retaliation for and in an effort to weaken American support for Israel’s right to exist and defense of that right. Hamas has murdered and injured dozens of Americans as part of its campaign of violence and terror, and since 1997, Hamas has been designated as a foreign terrorist organization (“FTO”) by the United States Government.

All that being the case, you’d almost be tempted to ask, Why, then, is the Biden-Harris administration pressuring Israel to accept a cease-fire that would leave the remnants of Hamas in place, enable them to be resupplied by jihadist allies through the Egypt-Gaza border, and leave them positioned to abduct and kill more Americans while continuing to work toward Israel’s annihilation?

You can see what’s going on here. The Biden-Harris dalliance with pro-Hamas contingents of the Democratic base is popular on the hard Left, but it is deeply unpopular with most of the voting public, including increasing numbers of American Jews alarmed by the surge in antisemitism during the Biden-Harris years. There is an election in November. This is no time for spouting the Obama-Biden glossary of “violent extremism” and “overseas contingency operations”; for at least the next seven weeks, Kamala Harris needs to convince Americans that she knows exactly what jihadist terrorism is and that she’s ready to take it on, in full-throated defense of Americans, in defense of Israel, and in steely-eyed resolve against those bad Iranians (who are still absolutely not building nukes!).

Kamala, intrepid veteran progressive prosecutor that she is, is ready to get tough . . . by filing a criminal complaint.