The Attorney General and The Wax Argument

THE FRENCH philosopher René Descartes imparted one very crucial philosophical lesson that can be applied as a practical manner to the crisis of leadership before the American people, particularly when considering the circus trial soon to come to New York.  The lesson had to do with the limitations of the senses wherein Descartes devised something he called the Wax Argument, and it goes exactly like this:  think for a moment, of the physical composition and properties of a piece of wax at room temperature; in essence, the shape, color, texture and smell of the wax.  Now take that very same piece of wax and place it on a skillet, which is then set atop a burning stove. Watch what happens to the wax – the observable properties have changed completely, but in actuality it is still just a piece of wax. The lesson: the nature of the wax can’t accurately be grasped by the senses, but instead one must use their mind.

“And so something which I thought I was seeing with my eyes is in fact grasped solely by the faculty which is my mind.”

              Descartes couldn’t be clearer – what you see is not necessarily what you get, or in the case of President Obama, what you see and hear is not what you get at all.  The special relationship that the president has sought with the American people as his poll numbers have withered below fifty percent approval, has reached a certain level of ambiguity that very little of what is offered as sincerity from the White House mouth piece of the day can actually be taken in earnest. Think of Eric Holder if you're stumped for an example of blazing ambiguity, if not borderline incompetence. Watch the video and use your mind.

The overused word heard time and time again as of late is “dithering,” but in reality the mind tells us “deer in the headlights.” Surely so many missteps in such a short period of time couldn’t have been planned - the exception of course being the Administration’s seething attack on the CIA. The subjugation of CIA interrogators is nothing more than appeasement to the far left as Mr. Obama’s mainstream center evaporates, pure and simple. Give the left the revenge they seek. Chalk one up for the Obama team. 

Like the kid in the sandbox who bullied and when caught blamed others for his misdeeds, blaming everything on the previous administration is boorish and beginning to wear thin, as does the revenge arrows left in the quiver.  What happens when all the arrows are gone and promises fall on deaf ears much the way as with the boy who cried wolf?  (same bully in the sandbox) For this Administration of arrogance the follow up to the rhetoric is naïve if not deconstructive, or perhaps more to the point, outright destructive.

Are the convictions and the executions of the 9/11 five a fait accompli, as Mr. Obama and Mr. Holder have both stated, a forgone conclusion, or simply more examples of wax. One would think that a trial of such magnitude in which all defendants are pleading not guilty and receiving the same legal considerations as any citizen, would allow for the introduction of any and all evidence possible by the defense to thwart the prosecution, including possible examples of torture. The question then surfaces – who is really on trial?  Is it Khalid Shaikh Mohammed and his band of fellow al-Qaida conspirators, or the Bush Administration, so as to satisfy the insatiable appetite for scorched earth revenge by the fringe left? The price for such revenge will be high and the damage severe. A win at any cost?

             That the CIA had used waterboarding on KSM, there is no disputing – a   total of 183 times in fact, at least according to a 2005 US Justice Department memo released in April 2009.  The memo was confusing, but the number 183 did not represent the total number of sessions that KSM was dragged  from his cell kicking and screaming, but the number of times water had been poured on his face. The admitted mass murderer could very well have undergone ten sessions of eighteen pours, or eighteen sessions of ten pours. I don’t really care – having been waterboarded myself while undergoing SERE (Survival, Evasion, Resistance and Escape) training when I was a Navy fighter pilot. (The exact same techniques used on all Special Ops forces and pilots were taught to interrogators.) It’s just not that bad. My kidney stones hurt much worse than the waterboarding.

What I do care about are the atrocities that Mohammed admitted to and the plans he had for future terrorist attacks. The list is mind boggling and scope of the evil, chilling.  There were a total of thirty plots in addition to 9/11; the one that stands out most in my mind was the gruesome beheading of Daniel Pearl by KSM personally. I saw the video.

Either unwittingly, or via duping (I hope not maliciously), the Attorney General Eric Holder, and therefore the president have provided a circus forum for the 9/11 defendants, KSM in particular, to spew the venomous vile demonstrated during the military trial at Guantanamo in 2008. As KSM can be expected to do in a federal courtroom of much greater visibility, during that trial the al-Qaida terrorists fired their lawyers and used evidential procedure to go so far as to even question the presiding judge.  Poking a finger in the air, Mohammed scolded the judge, Colonel Ralph Kohlmann, "How can you, as an officer of the US Marine Corps, stand over me in judgment?" I see Jack Nicholson in the role as Colonel Kohlman. To the Attorney General he would bark, "You can't handle the truth." Or is it the other way around? Are KSM and the others being brought to New York because they are in the same grave danger as was Private Santiago? Is there a code red ordered?

At the end of the Gitmo day, Mohammed and his co-conspirators collectively decided they wanted to plead guilty to all charges, which would apparently have ended the trial, the prosecution, and seemingly put a curtain to the case in its entirety. Not so fast. In comes a new administration with a new agenda, and without al-Qaida defendants to showcase grievances against the previous administration if guilty pleas are accepted and the case is closed. FUBAR at its most vulgar.

"What I'm absolutely clear about is that I have complete confidence in the American people and our legal traditions and the prosecutors, the tough prosecutors from New York who specialize in terrorism" – Barack Obama

What about the rest of the detainees in Cuba? A number of detainees are still being held without due process or the promise of ever being tried at all, in New York Federal Court or Military Tribunal or by Commission. Has Holder opened up the proverbial can of worms with a multi-tiered system for prosecuting al-Qaida? During his appearance before the Senate Judiciary Committee, Holder seemed to uncomfortably, if not incoherantly argue with himself over that sticking point and the decision to put KSM on trial in New York. Clearly he had zero cogent criteria to invoke. On one hand he is imploring the sanctity of our judicial system and the rights of terrorists captured abroad, and on the other, indefinitely denying a jury trial to many more still being held at Guantanamo. Watch the video again above or read the transcript from the questioning and answer session below : 


Transcript, via NPR—of all sources—of Sen. Lindsey Graham’s (Chameleon-SC) pummeling of Attorney General Eric Holder (ZANU PF) on Wednesday, during the Justice Department oversight hearing held by the Senate Judiciary Committee.

SEN. GRAHAM: "Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?"

ATTY.. GEN. HOLDER: "I don't know. I'd have to look at that. I think that, you know, the determination I've made—"

SEN. GRAHAM: "We're making history here, Mr. Attorney General. I'll answer it for you. The answer is no."

ATTY. GEN. HOLDER: "Well, I think—"

GRAHAM: "The Ghailani case—he was indicted for the Cole bombing before 9/11. And I didn't object to it going into federal court. But I'm telling you right now. We're making history and we're making bad history. And let me tell you why.
If bin Laden were caught tomorrow, would it be the position of this administration that he would be brought to justice?"

ATTY. GEN. HOLDER: "He would certainly be brought to justice, absolutely."

SEN. GRAHAM: "Where would you try him?"

ATTY. GEN. HOLDER: "Well, we'd go through our protocol. And we'd make the determination about where he should appropriately be tried."

SEN. GRAHAM: Would you try him—why would you take him someplace different than KSM [Khalid Sheik Mohammed]?

ATTY. GEN. HOLDER: "Well, that might be the case. I don't know. I'm not—"

SEN. GRAHAM: "Well, let—"

ATTY. GEN. HOLDER: "I'd have to look at all of the evidence, all of the—"

SEN. GRAHAM: "Well—"

ATTY. GEN. HOLDER: "He's been indicted. He's been indicted already." (Off mike.)

SEN. GRAHAM: "Does it matter if you—if you use the law enforcement theory or the enemy combatant theory, in terms of how the case would be handled?"

ATTY. GEN. HOLDER: "Well, I mean, bin Laden is an interesting case in that he's already been indicted in federal court."

SEN. GRAHAM: "Right."

ATTY. GEN. HOLDER: "We have cases against him." (Off mike.)

SEN. GRAHAM: "Right, well, where would—where would you put him?"

ATTY. GEN. HOLDER: "It would depend on how—a variety of factors."

SEN. GRAHAM: "Well, let me ask you this. Okay, let me ask you this. Let's say we capture him tomorrow. When does custodial interrogation begin in his case?
If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?"

ATTY. GEN. HOLDER: "Again I'm not—that all depends. I mean, the notion that we—"

SEN. GRAHAM: "Well, it does not depend. If you're going to prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs the defendant, the criminal defendant, is entitled to a lawyer and to be informed of their right to remain silent.

The big problem I have is that you're criminalizing the war, that if we caught bin Laden tomorrow, we'd have mixed theories and we couldn't turn him over—to the CIA, the FBI or military intelligence—for an interrogation on the battlefield, because now we're saying that he is subject to criminal court in the United States. And you're confusing the people fighting this war.

What would you tell the military commander who captured him? Would you tell him, "You must read him his rights and give him a lawyer"? And if you didn't tell him that, would you jeopardize the prosecution in a federal court?"

ATTY. GEN. HOLDER: "We have captured thousands of people on the battlefield, only a few of which have actually been given their Miranda warnings.

With regard to bin Laden and the desire or the need for statements from him, the case against him at this point is so overwhelming that we do not need to—"

SEN. GRAHAM: "Mr. Attorney General, my only point—the only point I'm making, that if we're going to use federal court as a disposition for terrorists, you take everything that comes with being in federal court. And what comes with being in federal court is that the rules in this country, unlike military law—you can have military operations, you can interrogate somebody for military intelligence purposes, and the law-enforcement rights do not attach.

But under domestic criminal law, the moment the person is in the hands of the United States government, they're entitled to be told they have a right to a lawyer and can remain silent. And if we go down that road, we're going to make this country less safe. That is my problem with what you have done.

You're a fine man. I know you want to do everything to help this country be safe, but I think you've made a fundamental mistake here. You have taken a wartime model that will allow us flexibility when it comes to intelligence gathering, and you have compromised this country's ability to deal with people who are at war with us, by interjecting into this system the possibility that they may be given the same constitutional rights as any American citizen.

And the main reason that KSM is going to court apparently is because the people he decided to kill were here in America and mostly civilian, and the person going into military court decided to kill some military members overseas. I think that is a perversion of the justice system."


         I'm scratching my head. Trials for some and commissions for others, and for others, held without charges. What happened to transparency? The administration has already gutted their case before it’s begun. Once the notion has been endorsed that the Government has the right to imprison some never captured on any battlefield, denied due process and trial, as Holder is doing both implicitly and explicitly, the rationale to bringing Khalid Shaikh Mohammed to trial in New York has been torpedoed.

“Courts and commissions are both essential tools in our fight against terrorism . . . On the same day I sent these five defendants to federal court, I referred five others to be tried in military commissions.  I am a prosecutor, and as a prosecutor, my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case with the best law. . . . At the end of the day, it was clear to me that the venue in which we are most likely to obtain justice for the American people is a federal court.” Eric Holder

Where’s the legal opinion to back such a notion? Through inexperience and arrogance the administration is walking through a minefield of its own making and ultimately, as well as unfortunately those that will suffer the most as a result will not be the terrorists, but instead the interrogators whose reputations will be further sullied by a circus show trial and the families of the victims who will have to relive the murders of their loved ones, once again lit up by the lights of  an unscrupulous media.  It’s all just wax.