Detention & Guantanamo

A Moment of Zen from Yesterday's Hearing

By Benjamin Wittes
Thursday, February 28, 2013, 6:39 AM

The thing kind of speaks for itself:

Rep. Louie Gohmert: Thank you Mr. Chairman, and this is an exceedingly important topic. We do appreciate your being here today. Obviously the Justice Department folks are busy doing something more important than having oversight. I wish that they didn’t need it. All of these issues are deeply troubling and I . . . am a big believer in due process. We’re talking about imminent attack as one of the issues and we’ve had a lot of people that have brought up the issue of Al-Aulaqi being killed in Yemen. But I think it’s good to look—what if scenarios before those scenarios actually happen? We know that Al-Aulaqi had led prayers for Muslim congressional staffers here on Capitol Hill. We know that he was probably not done in the United States. Can you foresee a time when someone like Al-Aulaqi is on a hit list, finishes what he was doing in Yemen, and somehow gets back in the United States? If there was concern of imminent attack when he was in Yemen could there be those same concerns? And would it then be possible for someone on the hit list, as Al-Aulaqi was, to be hit in the United States proper?

Benjamin Wittes: So I think, sir, the Al-Aulaqi case will be someday the subject of a truly wonderful book. It’s a very complicated and interesting history. I think if Anwar Al-Aulaqi had made it back to the United States, I don’t think there is dispute among anybody I’ve ever spoken to that the proper way to handle him would have been for the FBI to arrest him and for him to be prosecuted in a US federal court.

Rep. Gohmert: But my question was not about what was proper. My question was about the possibility of someone on the hit list being found back in the United States like [Abdul Rahman] al-Amoudi. He was arrested; Al Amoudi was arrested in 2002 at Dulles International Airport. He was arrested, as you talk about, but he had been very close to the Clinton administration, had worked with the Bush administration, and yet we find out actually he was involved in supporting terrorism internationally. And so he gets arrested and now he’s doing 23 years in prison. I’m asking what could be the prospect that someone get back in the country and from a political standpoint their arrest could potentially, like Al-Aulaqi, if he started talking about the people he worked with on Capitol Hill, the people that he had met with and worked with, it obviously would be very politically embarrassing. What if you have hypothetically someone who has been working closely with a President? We know we had a member of a known terrorist organization meeting in the White House last year, even though Secretary Napolitano, sitting where you are, could not answer that she even knew that was happening when it was in the papers. By the time she gets over to the Senate she then says, “Oh we checked. He was vetted three times.” There are things that could end up hypothetically proving so politically embarrassing that if somebody gets back in the United States, someone might look for a way to see that they never testified. We’re talking hypothetically, but I’m wanting to know what are the possibilities that something like that could happen. So that’s my question.

Wittes: Sir, nothing in the administration’s White Paper, in the Attorney General’s speech, would suggest that that would be lawful. And I would hope that any administration, Republican or Democrat, faced with such a situation, would behave like patriots and proceed according to the law and the Constitution and I would hope that this committee, in the event that that did not happen, would consider it under its impeachment power.

Rep. Gohmert: And then, when no one from the Justice Department cared to participate, then what? We find them in contempt and then it goes to the U.S. attorney and nothing happens, as it just happened last year? Any other comments from anybody else? Because this is a real issue and not everybody under political pressure acts like patriots.

Robert Chesney: I can simply say it’s quite clear to me that it would be unconstitutional to use lethal force against a person in that scenario, precisely because capture would be feasible. He may still be part of an organization, he may be a senior leader in al Qaeda, what have you, but—

Rep. Gohmert: And what if your contention is there is imminent attack. It’s planned. He helped set the situation up in Yemen and—

Chesney: Unconstitutional

Rep. Gohmert: We need to just take him out

Chesney: It’s unconstitutional unless—

Chairman Goodlatte: The time of the gentleman has expired.