Accuracy in Media

Obamanation: A Day of Truth
Accuracy in Media Conference 9/21/2012
Speaker: Andy McCarthy
“Holder’s Department of Injustice”
Transcribed by J. C. Hendershot & Bethany Stotts

MCCARTHY: This is a break for me, actually.  It’s probably not a break for anyone else in the country, to talk about this Justice Department, but I’ve actually spent the last week or so talking about a new book, as Roger mentioned.  I don’t know how you—I wasn’t able to orchestrate this sort of stuff when I was a prosecutor, believe me, but somehow, right as the book about the Arab Spring—so-called—came out, the Arab Spring myth started to explode, and my famous former defendant the Blind Sheikh [Omar Abdel-Rahman] was once again in the news.  I kind of feel that this happens every five years or so—you know, he does something crazy, including issuing the fatwa that approved the 9/11 attacks, from his American jail cell, as bin Laden credited after 9/11.  But he does pop up this way now and again, so I sort of feel like, I guess, the Rolling Stones—have a farewell tour every five years or so, coming around for the last time, I always think we’ve had it with the Blind Sheikh, and then he pops up yet again.  He has popped up in connection with the Justice Department, which I do want to spend a couple of minutes speaking about this morning.

You know, if you wanted to catalogue everything that’s been wrong with this Justice Department, you’d have to give me a lot longer than just a couple of minutes.  I actually wrote a pamphlet for Encounter Books—I think it was in late 2009, early 2010—claiming that the [Barack] Obama administration had pervasively politicized justice.  That was, I think, less than a year into the administration, and the record, at that time, was already outrageous enough that it was worthy of at least a pamphlet, if not something more than that.  That seems so bygone now, with what we’ve seen in the last several years, that you almost can’t remember it, even though it had the country pretty hopping mad at the time—particularly the effort to give Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, a trial in civilian court rather than a military commission.  But the last three years have, as I said, just sort of made that seem almost hard to remember—that’s how bad the record has been.  As a result, I think the best way to try to talk about the Justice Department, from a sort of a 10,000-feet overview level, is to try to do it thematically, because if we ticked it off scandal by scandal by scandal we could be here until next week.

So I want to hark back to the 2008 campaign, because it’s important to remember what the role of the federal criminal justice system was in the campaign.  If you remember, there were two big criticisms of by the Left.  One was that the [George W.] Bush administration had been a major departure from the rule of law, and the other was that the Bush administration had “politicized justice.”  You remember, that was the rationale for driving Attorney General Alberto Gonzalez, basically, out of his position—the claim that the Justice Department had now begun to take political affiliations and political stands into its actual law enforcement decisions.  Looking back at that campaign now, four years later, it just seems like what I thought at the time has been proved to be true, which is that if they’re moving their lips, they’re projecting—because what we have seen in four years is just the most outrageous overrunning of both the rule of law, and the most thoroughgoing politicization of law enforcement, that you can imagine.

Thematically, I think, on the question of the rule of law, it’s important, when we talk about that, to think about what the rule of law has to do with our society.  In a free society, the idea behind the rule of law is the preservation of ordered liberty.  In other words, we are a society that is controlled by our traditions and our culture, and the law is what we have—that protection that we have that undergirds us, that allows us to conduct our affairs in a way that enables us to run or to have flourishing lives and flourishing businesses.  The Obama administration’s idea of the rule of law is a little bit different than that—actually, it’s drastically different from that.  Their idea of the rule of law is to socialize the society—and I don’t mean “socialize” in the sense of “socialism.” I’m not making an economic argument here.  I’m making an argument that the law, in their view, is kind of the lasso that pulls the benighted society along in the direction that they want to take it in.  One of the things I think you need to understand about the ideologues who are in the Obama Justice Department—and they are legion—is that they absolutely believe in what they are doing. They don’t think that they are doing anything corrupt: They are on a mission to bring the society in a certain direction, and they are using the levers of power in order to accomplish that mission.  That’s their essential idea of what the rule of law is: The law as a tool, rather than a protection for our society.

The other thing to bear in mind is politics and justice.  We always say that we don’t want the Justice Department to be “politicized,” we don’t want law enforcement to be “politicized.”  That’s right, but it’s also important to remember that there’s little in our domestic politics that’s more important, in terms of political accountability, than how law enforcement is conducted.  When we say we don’t want the Justice Department to be “politicized,” we don’t want law enforcement to be “politicized,” what we mean is, political consideration should not have any bearing whatsoever on how individual cases are run.  That, really, is the way that most U.S. attorneys’ offices work.  I’m a pretty opinionated conservative.  I was in the U.S. Attorney’s office in New York for almost twenty years.  Most of my colleagues were left-of-center, as you would expect from reams of lawyers in New York.  Some were not—some were extremely on the Left.  I can’t remember a single case, in twenty years, where that made any difference, because if law enforcement is being done right, the only politicking that goes on—the only politics that is brought to bear on it—is the choice of what the enforcement priorities are going to be.  So, for example, the Bush administration prioritized national security, which made sense, because that was the threat environment that we were in at the time.  The [Bill] Clinton administration prioritized other things, like Medicare fraud and the like, so they would move resources out of things that the prior [Ronald] Reagan administration and the prior [George H. W.] Bush administration had prioritized; they had their own set of priorities.  That’s fine, but that’s something we need to be politically accountable about.  So when we talk about politics in justice, that’s the proper politics in justice.

What we’re seeing in this administration, instead, is not only an out-of-whack choice about what their priorities ought to be, but the actual use of political philosophy in deciding who gets prosecuted, and how cases get conducted—and that, for somebody who’s been inside the Justice Department, is an unbelievable thing.  For those who are outside the Justice Department, watching, it’s an intolerable thing—and it ought to be a reason why we take that into account when we vote in November.  If you have a situation where the Justice Department is using politics in the actual enforcement of the law, then you don’t have the rule of law anymore, and you don’t have equal protection under the law anymore.

You know, there’s a number of cases.  I know the Fast and Furious report just came out, and there are things that we could say about that.  John Fund mentioned the Media Matters fiasco that came out in the last week.  I’m proud to say that I’m one of the people who Media Matters apparently follows around—hi, guys, good to see you out there today!  But, you know, I think, particularly, the Media Matters piece is small potatoes compared to the more thoroughgoing issues that we need to discuss.  Of course it’s outrageous that the Justice Department essentially has an outside group, Media Matters, that it is using as an adjunct of the press office to go after its critics.  I don’t mean to be a babe in the woods—I don’t mean to suggest that prosecutors never try to spin the media. You know, I was around a long time: I know that happens.  But there’s a difference here: Essentially, when the government talks, particularly in a law enforcement context, we should not speak until we’re ready to speak in the courtroom, and all the speaking that gets done is supposed to be about cases that already have allegations made in them, that are a matter of the public record—and in those instances I think it’s not only appropriate, it’s often necessary for the government to speak publicly, because it’s important for the public to understand what it is that the Justice Department is doing, particularly in cases that it’s bringing in the public’s name.  If those things are being misrepresented, whether by defense lawyers or by people who have them wrong in the media, it’s important to correct that.  But what the Justice Department is doing with Media Matters is not trying to spin matters that are about cases that are on the public record, what they’re instead doing is trying to control the public debate.  They’re trying to control the court of public opinion, not what goes on in our own courts—and that’s just unacceptable, and it ought to be unacceptable to people.

But I want to talk, in the couple of minutes I have, about four particular areas where I think the Justice Department has really undermined the bedrocks of our Constitutional order, and what ought to be both frightening to people and ought to galvanize them in terms of the decisions that have to be made in the months ahead.

Probably the most important thing is equal protection of the law. That is one of the bedrocks, not only of our Constitutional system, it’s one of the things that the Justice Department is in place in order to safeguard.  That’s why we have civil rights laws, that’s why we have a federal law enforcement role in the first place—to make sure that all of the citizens are treated equally, and regarded equally before the courts of the United States.  In the New Black Panther Party case—the outrageous parts of it are already well known, this was a very obvious voter intimidation case where the Justice Department actually had the case won, the defendants had defaulted, the judge was just waiting to enter judgment in favor of the United States—the Holder Justice Department, evidently under pressure from interest groups, actually went in and pulled defeat out of the jaws of victory, actually dismissed the case, even though the government already had the case won.  That was pretty astounding to anybody who has been in the Justice Department, or watched the Justice Department for any length of time, for them to be on the precipice of winning a case and pulling back.  But what was more outrageous, and what really ought to upset people a lot more than that, is the fact that we learned from some of the whistleblowers that John Fund was talking about this morning: We learned that the Justice Department actually has a racially discriminatory philosophy in the enforcement of the civil rights laws.  Now think about how perverse that is: The civil rights laws are the thing that are in place to guarantee the equality of citizens across the board.  The Justice Department, as a matter of philosophy, believes that if an offender is a minority group—particularly African-American—and the victims of the civil rights violation are not members of a minority group—and, particularly, Caucasian—they do not believe civil rights charges should be brought in those cases.  Now, there’s utterly nothing in the statutes themselves that say that.  As a matter of philosophy, however, this Justice Department takes the position that the civil rights statutes are sort of the province of African-Americans, and they can’t be used against them at any time.  That’s just wrong.  It’s not a “Justice Department” if you are enforcing the law in a way that creates multiple classes of citizens, and that’s what this enforcement practice does.

Then there’s federalism. That’s the second thing—state’s rights.  If the states cannot defend themselves, they’re not sovereign anymore.  That’s a pretty basic element that is, really, sort of essential to the foundation of our country: If it had been thought that the states were surrendering their sovereignty, there would not be a United States of America.  In fact, we went along for almost a century without a Justice Department, and for most of that time the Attorney General was seen to be a sort of a legal advisor to the President who did not have a wide-ranging role in law enforcement.  The reason for that is, when the debates over the Constitution were taking place, whether it was to be adopted, the assumption was—and the commitment, was from the federalists—that the internal matters of the security of the states would be controlled by the states, they would continue to maintain their own law enforcement systems, and there wouldn’t be a federal law enforcement role.  So that’s something that we began to part from about a century after the Constitution started, but what we’re now seeing is something that’s not only an evolution of that. but, actually, a complete reversal of the underlying assumptions that our country was based on: The Justice Department sued Arizona in the immigration case, notwithstanding the fact that the Arizona law that was at issue actually involved bolstering federal law enforcement.  In other words, what the Arizona statute allowed the police, and other law enforcement actors in Arizona, to do was enforce the federal law, as a kind of a backstop to the Justice Department.  This was not a case where state law was actually colliding with federal law—they were actually totally in harmony, which is the sort of the case where what’s called the “Preemption Doctrine” should have no role whatsoever, because it can only be “preemption” when the laws are actually colliding with each other.  The Justice Department took the position that a state now not only has to be consistent with federal law—which would have been a shocking doctrine as far as the Founders are concerned—but they now have to be consistent with federal policy, meaning, to say, Executive Branch policy.  So, for example, if the immigration laws maintain one thing, but the Executive Branch says, “Well, we’re not going to enforce the immigration laws—which they can do, prosecutorial discretion has been a part of our law from the beginning—if the President says, “I’m not going to enforce the immigration laws,” the states now are preempted, even if their laws completely are harmonious with the federal laws.  So basically they’re being told now that they not only don’t have the sovereign right to make laws that conflict with Congress, they actually, even if they do take that step, no longer have sovereign power if the federal administration that’s in power decides that it’s not going to enforce the laws.  And again, if the states cannot defend themselves, they’re not sovereign; if they’re not sovereign, then the agreement that was the basis for the adoption of the Constitution is no more.

Security is the third thing.  From the beginning, the administration has undermined the Bush approach to counterterrorism.  During the ’90s we tried the approach of having counterterrorism mainly be a courtroom issue, and from the time the World Trade Center was bombed in 1993, up until the 9/11 attack, that eight-year period, we basically treated this as if it were a crime, or a crime wave, rather than a war—and what ended up happening was we were repeatedly, we were repeatedly attacked, and the attacks got more serious over time.

When the Bush administration came in—and especially after the 9/11 attacks—they decided that that approach was a failure, and that what we needed to do was treat a war like a war, and invoke the laws of war.  Now, the people who’re now running the Obama administration, when they were academics and private lawyers who were criticizing the Bush administration, during the Bush years, took the position that what Bush was trying to do was inconsistent with the rule of law.  In point of fact, the law of war—which allows us to detain enemy combatants until the conclusion of hostilities, and allows us to try by military commission, not in a civilian court, enemy combatants who commit war crimes—has been the law of the United States in wartime from the beginning.  The aberration begins in about 2004, when the courts begin to get themselves involved in warfare and the handling of enemy prisoners, which is unprecedented in the history of the country—and as we’ve seen, in the last four years, we’ve had almost no military commissions, we’ve had attempts to bring enemy combatants into New York and other jurisdictions, other civilian jurisdictions, in the country for trial.  It is an undermining of our war footing.

I have one other thing to say—I’ve got about a minute?


MCCARTHY: Free expression.  This is a story that’s gotten almost no coverage, it’s mostly a State Department story, but it’s important that you know about it.  The administration has been working with the Organization of Islamic Cooperation since the very beginning, since 2009, on resolutions which are designed to impose, over our First Amendment free expression rights, the repressive sharia standards of speech.  That began with the State Department joining with some Islamist governments—including Mubarak’s Egypt, back at the time; Egypt under Mubarak still had a sharia constitution even if Mubarak didn’t bother with it himself too often—joining with Egypt and other Islamist governments in 2009 to propose a resolution that would call on states to use their power either to prosecute, or make illegal, speech which cast Islam in a bad light.  They did it under the heading of “defamation of religion.”  That’s something that has picked up pace over the years, to the point where, in 2011, the United States actually hosted the OIC’s conference on religious intolerance, and tried to settle on a standard that would make it illegal not only to incite violence—which is, by the way, already a crime, you don’t need a resolution for that—but also make it a crime, or at least make it illegal—not necessarily a criminal offense—speech that incited either discrimination or hostility to religion.  The obvious intent of this is to make any critical examination of Islam, or Islamist ideology, illegal, and at least to press or discourage anybody who would engage in that.  It leaves us defenseless in about every way that you can think of that’s important, because it’s not only what the laws say—there is the ethos that is created by the law.  We’ve been through this again and again in the Justice Department.  We were through it in the ’90s when we had intelligence walls up, where the criminal side of the house couldn’t talk to the intelligence side of the house.  What you eventually get is a sense, throughout law enforcement, that cooperation or communication is discouraged, and nobody tells anybody anything, and the country is terribly vulnerable.  It’s happening again with speech: They’re purging our intelligence files of—they say they’re purging it of information that is “defamatory of Islam.”  Back when I was a prosecutor in the ’90s, we used to call it “evidence.”  So it’s obviously a different perspective, but they are creating a culture with in the Justice Department that basically says, if you’re looking for the ideology that animates the enemy, you’re basically violating their view of the Constitution, which is a warped view of the Constitution.  The important thing about it is, you can’t protect the country with blindfolds on, and you can’t protect the country by ignoring the enemy’s threat doctrine.  I can’t imagine anything that would make it more likely that we’d see terrorist attacks in America again.

And on that happy note I guess I should—

ARONOFF: Let’s just take a couple of questions here.  Andy will be back up in an hour-and-a-half or something, but, yes, go ahead.

AUDIENCE MEMBER 1: Regarding the first point you made on freedom of expression: How concerned should we be on the civil law side over the pushing of U.N. Resolution 1618 on religious defamation?

M: We ought to be very concerned about it, I think, not only because they’re pushing something that is so obviously anti-Constitutional, but let’s face it: If President Obama is reelected—I think he’s already appointed 200 judges—there will be another couple hundred judges plus at least one or two Supreme Court appointments.  Look, it doesn’t matter that I can show you jurisprudence a mountain high that says that this violates the First Amendment, if they stack the judiciary with people who think like they do, and think that the First Amendment is elastic enough to embrace a sharia, repressive speech standard, that’s the end of the First Amendment.

Yes, sir?


AUDIENCE MEMBER 2: So, I read through the whole sharia law article on Wikipedia, so I’d like you to perhaps comment on, I think, why would someone even want to allow this in the United States in any form whatsoever, since their stated goal is to have everyone under sharia law?

MCCARTHY: Well, because nobody’s interested in what their stated goal is.  So this is sort of an incremental strategy so that, basically, people who are sympathetic say, “Well, we don’t have to take the jihad part of it and, you know, the repression of women and religious minorities, and that death penalty for homosexuals, that’s probably not going to fly here.”  But, they say, “These finance standards, they’re okay, and, after all, don’t we want Muslims to be able to participate, just like everybody else, in our financial system?”  Of course the answer to that is, let them participate like everyone else in our financial system.  Don’t change our rules and our culture over it.  But there’s a blindness, I think—not only on the Left, by the way, I think there’s a blindness in general in the country—to what the animating threat of this is, which is that it’s a supremacist threat where they want to implement sharia gradually, with the idea that eventually it would be fully implemented.  That seems fantastical to us, but these are people who think that they defeated the Soviet Union—and there’s two big old buildings in Lower Manhattan that aren’t there anymore.  If you told somebody a couple of days before that happened, that something like that could happen, they would have said you were crazy.

AUDIENCE MEMBER 2: So, one quick follow-up.  What mystifies me about this is, their objectives are very clearly stated, so how can all these highly educated elected officials be completely ignorant of their clearly stated goal for this?

MCCARTHY: Because they’re evolving us, and they think they’re evolving Islam, too.  There are some people, I think, who get it, and recognize that, at least in the Muslim Middle East, the chance that the culture is going to change there anytime soon—and the really visceral anti-Americanism, anti-Westernism is going to change anytime soon—that that will never happen.  There are other people who will tell you in good faith—I think it’s loopy, but they believe it—that if you allow these Islamists to take positions in government, and they suddenly have responsibility for governance, that will tame them, because they’ll realize that they’re now politically accountable, and they’ll have to serve their constituencies, and it will pressure them to moderate.  This is one of those theories in search of evidence.  If you look around, whether it’s in Iran, or it’s Hamas in Gaza, or just watch the Muslim Brotherhood in Egypt—and, certainly, look at what’s happened in Turkey since Islamists have taken over—the societies that are democratic become progressively less democratic, and the societies that are authoritarian become totalitarian.  That’s what the record is.  The fact is, in that culture, it’s a different civilization, it’s a different way of looking at the world.  People’s idea of freedom—and  I’ll get into this more this afternoon—is not the same idea that we have in this country about freedom.  It’s almost the opposite—so the thought that suddenly serving their constituents is going to moderate them is a farce.

ARONOFF: One last one.

MCCARTHY: Yes, sir.

AUDIENCE MEMBER 3: I understand you have a point that’s, of course, frightening—I understand the last point, it is frightening, of course.  Can you be specific about, with an example or two, where there’s been a conflict of sharia versus normal law?


AUDIENCE MEMBER 3: I think it could be appreciated more if you can give an example of what’s happened, and then how it would be—

MCCARTHY: In my own great state of New Jersey, we had a Muslim couple that was in court, getting a divorce.  The woman was seeking a divorce.  I think they were from Algeria, if I’m remembering this correctly.  She came into court seeking a protective order because she was being serially beaten and raped by her husband, who she was trying to divorce, and he told her, “This is our religion, you have to do as I say,” which is solid interpretation.  There is interpretation that goes the other way as well, but there is Islamic scholarship that holds to the proposition that there can’t be “marital rape” in Islam, because the woman must submit to the man’s demands.  When she went in and sought a protective order, which a woman in that instance would get in virtually any other case, the judge in New Jersey denied it because he, the judge, held that in the man’s mind, the husband’s mind—or the soon-to-be ex-husband’s mind—he wasn’t doing anything wrong, he was simply honoring his own religious and cultural tradition, and therefore he lacked the intent to commit rape. and without rape having been committed, there wasn’t any real basis to issue the protective order.

Now, the fact of the matter is, that case got reversed by the higher courts, but what the inside baseball that lawyers know—that maybe the public doesn’t always realize—is, there’s very few cases get up to the appellate courts, and even the cases that do get up to the appellate courts there’s very few claims that actually get resolved, versus the claims that actually get raised in the trial court.  So the point is—the Center for Security Policy did a study on this.  They found, without having to break into a sweat, about 50 cases where sharia has come up, in one form or another, in all of the different states across the country.  What I’m saying is that their methodology was to look at reported cases, and I’m telling you that most of the cases in the United States are not reported.  The day-to-day-to-day stuff that goes on in courts usually never becomes an appellate case; it never rises up.  So we really don’t know how much sharia enforcement there is.  We just know that there’s more than there used to be.

ARONOFF: Okay.  Let’s thank Andy.

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