Several recent incidences of violent extremists in the United States who are committed to fighting here and abroad have underscored the threat to the United States and our interests posed by individuals radicalized at home. Our best defenses against this threat are well informed and equipped families, local communities, and institutions. The Federal Government will invest in intelligence to understand this threat and expand community engagement and development programs to empower local communities. And the Federal Government, drawing on the expertise and resources from all relevant agencies, will clearly communicate our policies and intentions, listening to local concerns, tailoring policies to address regional concerns, and making clear that our diversity is part of our strength—not a source of division or insecurity.

The Department of Homeland Security has documented increased attempts by al-Qaeda and those inspired by it in recent months to attempt what John Brennan, Obama’s chief counterterrorism adviser, calls attacks of “low sophistication” within the United States. That creates a choice for intelligence and law enforcement. One answer is to apply counterinsurgency principles of population protection. That entails treating host communities as essentially “at-risk” cohorts that run the risk of infection by radical recruitment techniques. By partnering with community leaders, you give financial and political support to the recognized and legitimate authority figures so they can prevent extremism from taking hold — and to isolate, marginalize, identify and target for law enforcement those people who might still fall under its sway. This is what the NYPD’s old counterterrorism chief, Mike Sheehan, did in Muslim communities in New York City early last decade. It was as often as simple — and as crucial — as showing up to mosque meetings and letting people vent their grievances.

And this is the approach the National Security Strategy embraces: one that distinguishes between the extremists and the communities that they emerge from and exploit; treats the communities as under threat; and empowers those communities to handle that threat at the most immediate, legitimate and basic levels.

There’s another approach. You could treat the communities as the threat. Andy McCarthy, the most influential conservative legal authority on national security at the moment, ridicules the very idea of “Muslim ‘moderates’” as a “hopelessly ill-conceived construct.” His new book portrays Islam itself as a threat to America. The natural remedy is to empower law enforcement to target those Muslim communities in the United States. Subject them to surveillance. Detain them when necessary. If every Muslim who looks to their faith to inform their politics — which is all the wide, varied, catch-all term “Islamist” means — is on a slippery slope to swearing fealty to Osama bin Laden, then that approach makes sense.

Except that it doesn’t. And as John Brennan explained yesterday, it’s the exact strategy that bin Laden wants the U.S. to pursue, because it will guarantee that greater numbers within those communities turn to extremism in their frustration, precisely the outcome the strategy seeks to prevent. It’s worth quoting extensively from Brennan’s remarks:

Finally, remaining faithful to our values requires something else – that we never surrender the diversity and tolerance and openness to different cultures and faiths that define us as Americans. Several months ago, I had the opportunity to speak at NYU, where I was hosted by the university’s Islamic center and the Islamic Law Students Association. The audience included people of many faiths – Muslim, Christian, Jew, Hindu and Sikh. I was there to have a dialogue on how, as Americans, we can all work together to keep our country safe from the terrorists who seek to drive us apart.

After I was finished speaking, person after person stood up to share their perspective and to ask their questions. Mothers and fathers, religious leaders and students, recent immigrants and American citizens by birth. One after another, they spoke of how they love this country and of all the opportunities it has afforded them and their families. But they also spoke of their concerns, that their fellow Americans, and at times, their own government, may see them as a threat to American security, rather than a part of the American family. One man, a father, explained that his 21-year-old son, an American born and raised, who was subjected to extra security every time he boards a plane, now feels disenfranchised in his own country.

This is the challenge we face. Even more than the attacks al-Qaida and its violent affiliates unleash or the blood they spill, they seek to strike at the very essence of who we are as Americans by replacing our hard-won confidence with fear and replacing our tolerance with suspicion; by turning our great diversity from a source of strength into a source of division; by causing us to undermine the laws and values that have been a source of our strength and our influence throughout the world; by turning a nation whose global leadership has meant greater security and prosperity for people in every corner of the globe into a nation that retreats from the world stage and abandons allies and partners.

That is what al-Qaida and its allies want – to achieve their goals by turning us into something we are not. But that is something they can never achieve, because only the people of America can change who we are as a nation. Al-Qaida can sew explosives into their clothes or park an SUV with explosives on a busy street. But it is our choice to react with panic or resolve. They can seek to recruit people already living among us, but it is our choice to subject entire communities to suspicion, or to support those communities in reaching the disaffected before they turn to violence. Terrorists may try to bring death to our cities, but it is our choice to either uphold the rule of law or chip away at it. They may strike our communities, but it is our choice to either respond wisely and effectively or lash out in ways that inflame entire regions and stoke the fires of the violent extremism.

I’m here at Guantanamo to observe a hearing in the case of Noor Uthman Mohammed, who is being accused of material support for terrorism. There has been very little detail released about the evidence against him, because much of it is classified — possibly because Mohammed was caught in the same sweep in which the U.S. captured Abu Zubayda in 2002. The process of sorting through the classified material in his case means that his trial won’t begin until February 2011, if it happens. The chief prosecutor for the military commissions told me a few days ago that “as a practical matter, there’s very little difference” between the process for dealing with classified information in military commissions and civilian court.

That “day-to-day” process McCarthy is so concerned about is happening here at Guantanamo, much in the same way it would happen back home. It’s also happening twice, once prior to a hearing that will determine whether Mohammed is an “unprivileged enemy belligerent,” and then again as the evidence is reviewed prior to his likely trial.

Meanwhile, it’s not like the military commissions have an unblemished record in protecting classified information. One example off the top of my head: The existence of the military’s “Frequent Flier” sleep deprivation program was disclosed during Mohammed Jawad‘s military commission, which seems to me a much more significant disclosure than bin Laden finding out we’re after him several years after he’s issued fatwas calling for Muslims to fight the U.S.

In fairness, McCarthy told me he doesn’t carry any particular brief for military commissions. He favors the establishment of special national security courts for terrorism cases, an idea also favored by Benjamin Wittes of the Brookings Institution and Jack Goldsmith of Harvard — and, for that matter, by Sen. Lindsey Graham (R-S.C.) — but rejected by the Obama administration. (So far.)

The group put out a web video demanding that Holder name the other Justice Department lawyers who had previously represented terror detainees or worked on similar issues for groups that opposed the Bush administration’s near-limitless assumption of executive power. “Whose values do they share?,” a voice asks ominously. “Americans have a right to know the identity of the al-Qaeda Seven.” The ad echoed [National Review writer Andy] McCarthy’s references to the “al Qaeda bar” from months earlier.

“This is exactly what Joe McCarthy did,” said Gude. “Not kind of like McCarthyism, this is exactly McCarthyism.”

That’s Ken Gude of the Center for American Progress. Yesterday, retired Air Force Col. Morris Davis, a former chief prosecutor of the military commissions, wondered whether these people would call John Adams a British symp for defending the perpetrators of the Boston Massacre.

Nevertheless, the Los Angeles Times runs a story reporting this exactly the way the right wants it reported, with credulous intimations that there’s something “hidden” about the Justice Department lawyers. “It’s time for these policies to meet the light of day — and for the public to get the answers they deserve,” Sen. Jeff Sessions (R-Ala.) told the paper’s Richard Serrano, who didn’t ask Sessions whether he had a list of the Justice Department’s al-Qaeda sympathizers in his jacket pocket. This is a constant theme on the right. In 2006, Rep. Peter Hoekstra (R-Mich.) told me that there were unnamed CIA officials who harbored sympathy with al-Qaeda. He was chairman of the House intelligence committee at the time.

[T]he federal courts are no bed of roses for terrorists. They have convicted many more terrorists than military commissions have. And following the only contested military commission trial since the start of the “war on terror,” Osama bin Laden’s driver, who the government claimed was a key player in the global jihadist’s murderous efforts, was sentenced to only five and a half years in prison – just six months more than the time he’d already served.

Back then, the National Review’s Andy McCarthy, the former prosecutor who now argues for military interrogation, trial and detention for all terrorism suspects, wrote a piece titled: “Disgraceful Hamdan Sentence Calls Military Commissions Into Question.”

That was 2008.

Just last week, McCarthy wrote that “Like most Americans, I think it is a terrible idea to give alien enemy combatants civilian trials.” Our usual procedures for handling criminal terrorism cases no longer need to be followed, because now we are at war, he says, so anything goes. Although the same critics making this argument today never pressed that position during the Bush administration, it’s now become accepted wisdom among those eager both to discredit the Obama administration and to appear tough on terror that terrorism suspects belong nowhere near the civilian justice system.

It’s an odd position for these critics to take, given the track record of the military commissions. Military commissions have convicted only three terrorists since they were created. Two of them have already been released from prison. The other didn’t even present a defense at his trial.

Full disclosure: My personal blog is hosted at FDL.

“The decision to try Khalid Sheikh Mohammed in New York City and give him all the benefits and perks reserved for American citizens is a slap in the face of the 9/11 victim’s families, the American people, and the men and women who risk their lives to defend our liberties each and every day,” said Bachmann in a statement released after the press conference.

Curiously, many of those protesting the accused terrorists’ trial in federal court repeatedly refer to a federal court trial and its attendant due process rights as being “reserved for U.S. citizens.” At a rally last weekend in New York City, for example, protesters and speakers repeatedly objected that the 9/11 defendants were being given “the same rights as U.S. citizens.”

In fact, the “right” to be prosecuted in a U.S. federal court has never been “reserved” for U.S. citizens at all. It’s historically been a “right” accorded to anyone who commits a crime on U.S. soil. Thus everyone from a U.S.-born citizen to an illegal alien who commits a federal crime in the United States gets tried in federal court. Although the government has just recently created special military commissions to try some crimes against U.S. military targets abroad, we don’t normally create new courts or legal systems to try non-citizens who commit mass murder, mail fraud, or any other crimes that might land them in federal court.

“If President Obama admits that we are a nation at war, then we should act like one,” continued Bachmann in her statement. “Justice for the 9/11 attackers should be swift and conclusive, something that won’t be done when KSM exploits the abundant appeals and legal loopholes he has been inexplicably awarded as a foreign combatant,” said Bachmann.

Bachmann didn’t mention that there have been only three military commission trials since they were created by President George W. Bush because detainees challenged the constitutionality of the military commissions — and won.

The proceedings that began last week under the supposedly new-and-improved military commissions signed into law by President Obama already suggest that we’ll be seeing more of the same.

[N]early six months into the Obama presidency, the mainstream media has finally done a bit of the candidate background reporting it declined to do during the campaign — other than in Wasilla — and whaddya know?  The New York Times unearthed a 1983 article called, “Breaking the War Mentality,” that Columbia student Barack Obama wrote for a campus newspaper.

Cute, but the article was actually unearthed in January by the conservative magazine Human Events. It was even hyped by Jack Cashill, the author whose theory that Obama did not write his memoirs made a lot of sense to McCarthy. Cashill argues that the 22-year-old Obama’s bad prose in a student magazine proves that the 34-year-old Obama could not have become a good writer; McCarthy uses it to argue that Obama is going to get snookered by the Russians.

The Lieberman-Graham Amendment, also known as The Detainee Photographic Records Protection Act, is strongly supported by President Obama. It would amend the Freedom of Information Act — the same one Obama promised to construe liberally in favor of releasing information — to allow the president to conceal the photos of detainee abuse that the administration has already been ordered to produce in a pending lawsuit brought by the American Civil Liberties Union.

Oddly, the Obama administration and Senate Democrats seem to have followed the advice of Andy McCarthy at National Review, who a few weeks ago specifically suggested that the administration need not follow the court order requiring release of the photos; Congress, with the White House’s support, could just amend FOIA or adopt a new law to allow Obama to conceal the photos, and avoid having to bother with the pesky federal court system, which so far hasn’t given the administration its way.

The only problem is, how is the Obama administration going to reconcile this move with the President’s eloquent promises on his first days in office?

Remember this Memorandum on Transparency and Open Government?

Government should be transparent.  Transparency promotes accountability and provides information for citizens about what their Government is doing. Information maintained by the Federal Government is a national asset. My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use.

Or this statement by Attorney General Eric Holder during his confirmation process?

I firmly believe that transparency is a key to good government.  Openness allows the public to have faith that its government obeys the law.

So isn’t it strange that the government, rather than appealing a court order pursuant to its rights under the law, now wants to defy the court by asking Congress simply to change the law?

I agree with Glenn Greenwald on this one:

If, as Obama claims, there are legitimate reasons to suppress these photos under FOIA’s exemptions (including its very broad national security exemptions), then the Supreme Court can reverse the two lower court rulings ordering disclosure — as Obama is asking it to do.  But there is no good reason to vest the Obama administration with the unilateral power to simply waive FOIA requirements simply because it loses in court and decides it doesn’t want to comply with court rulings and with current transparency laws.

And Nick Baumann at Mother Jones, who calls the photo suppression bill “an abomination that is reminiscent of the worst Bush-era excesses.”

It gives the executive branch the power to withhold an entire category of information from public scrutiny without any review. This law is Example A of the theory of the Presidency that says citizens should just trust the benevolent executive to do the right thing. Even in you oppose releasing some of the photos, I don’t see why you would want to give the White House the power to unilaterally decide what’s best. It says a lot about the Congress that members are willing to give Obama this kind of power. It says a lot about Obama that he supports this bill. Thank God for Barney Frank.

Well, except that late last week, Frank switched his vote.

In his recent speech at the National Archives, Obama said:

I ran for President promising transparency, and I meant what I said. That is why, whenever possible, we will make information available to the American people so that they can make informed judgments and hold us accountable. But I have never argued – and never will – that our most sensitive national security matters should be an open book. I will never abandon – and I will vigorously defend – the necessity of classification to defend our troops at war; to protect sources and methods; and to safeguard confidential actions that keep the American people safe. And so, whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions – by Congress or by the courts.

Now that the court has refused to give the president what he wants, he’s hoping Congress will. He’s won in the Senate already. Let’s see if the House Democrats will stand their ground on this one.

As he said on a conference call with reporters organized by the Federalist Society this morning, “as reprehensible as people may find it [waterboarding], it’s not an infliction of severe pain.”  What’s more, it’s “not of long term duration such that it would be considered infliction of severe mental pain under cases that interpret that,” either.

“As far as mental suffering is concerned, that involves at least the creation of a fear of imminent death,” said McCarthy. “While it’s a favorite talking point that people were waterboarded 180 times … it undercuts the fear that there was going to be imminent death. After the first or second time you get the point that there’s no death to be feared here.”

So the more a detainee is waterboarded, this astute legal reasoning goes, the more he gets the idea he’s going to survive, and the less like torture it really is.

But isn’t the idea to terrify the guy into talking?  Otherwise, why do it?