HH: On what may be the worst day in American journalism in a very long time, there has been no arrest, despite the fact CNN said there was an arrest, despite the fact that Fox News said there was an arrest, despite the fact the FBI put out an official news bulletin that there was no arrest, and there is no gun legislation, despite the fact that everyone said it was going to pass. And the President just threw a hissy fit in the Rose Garden about that. But we begin with the terrorism investigation and its status, and I’m going to do something really unheard of in journalism. I’m going to talk to someone who actually knows what he’s talking about. Andrew C. McCarthy, former federal prosecutor, the man who put the Blind Sheik behind bars, if you read his book, Willful Blindness, you knew all you need to know about the difficulty and complexity of a terrorism investigation and prosecution. Andrew McCarthy, you must have been shuddering watching the CNN meltdown in live time today.
AM: Well, shuddering, Hugh, and also having sort of cold sweats from the flashbacks that you get from what we see again and again in these types of investigations. And I think you have I may have spoken about this the last time we talked about it. But if you don’t, if you’re not willing to put your name on something, then people should regard it with suspicion. And it happens again and again in these investigations that even high-ranking law enforcement officials who talk to the media, but don’t give their names, tend to be people who are, even if they’re not intentionally trying to mislead the public, they are attenuated at best from the real knowledge about what’s going in the investigation. And what they tell us ought to be viewed with great, great suspicion.
HH: Andrew McCarthy, as I watched John King, who is a good guy, and usually a good reporter, dig the hole deeper and deeper today about his reliable sources, the sources that have been confirming him all week long, have reported an arrest, and then he had to fill in that hole later. And all of the CNN crew threw themselves into that hole for an hour and a half. I kept thinking to myself, why would anyone say an arrest had been made when an arrest had not been made? Do you have any idea why someone would feed that to the media?
AM: Well, I’m not sure it was fed as an intentional lie, Hugh. And let me suggest some alternative scenarios that might suggest the possibility of confusion about terms rather than intentional misleading. A number of things can happen in an investigation. If you don’t have somebody in custody, it’s very possible that they think they’ve identified someone, or a number of people, and obtained arrest warrants which haven’t been executed, yet. So they have suspects, and they possibly have court process that would enable them to arrest people, but maybe no one’s arrested, and maybe there was a glitch as far as that went. The other possibility I’m thinking of is you may remember when this Abdul Mutallib character tried to blow up the plane on Christmas several years back.
HH: The underwear bomber, yeah.
AM: Yeah, one of the big things, remember, that we had a big debate about was whether he should have been given Miranda warnings and treated as a criminal defendant, or whether he was an enemy combatant. And one of the things that got resolved out of that was that they were going to set up this high value interrogation group that was going to be a group of agents from across the government, not only law enforcement, but intelligence and military people. And they were going to sort of screen future terrorist defendants with an eye toward trying to figure out whether they were enemy combatants or criminal defendants, how they ought to be handled, et cetera. Now I don’t know, I have no, people should understand, I have absolutely no first-hand information about what’s going on. I don’t even have second-hand information about what’s going on. But I could certainly imagine a scenario where it’s possible that they would have had this high value interrogation group speak to somebody with an eye toward trying to gain information, but not compromise the eventual criminal prosecution, and that they haven’t moved the person yet from the high value interrogation group to the normal law enforcement processes.
AM: And that could cause some confusion about what the person’s status was formally considered, arrest or not.
HH: Plausible hypothetical. I get you.
AM: And again, that’s just a theory.
HH: Yeah. Okay, let me ask you the question that was posed at one moment by Anderson Cooper today, and it was, I mean, I’ve got worse than second and third-hand information. All I’ve got is CNN information, so I’m in really bad shape. But I have a question that Anderson Cooper asked that was a great question that no one then followed up on, and maybe you can answer for me. It seems to be the case that video taken from the Lord & Taylor fashion store has identified a person of great suspicion. And they are looking for him. And Anderson Cooper asked, and then no one answered, or they lost the thread. How do you go from a photo to an identification to an arrest? Andrew McCarthy, you’ve lived that drama as a prosecutor of terrorism cases. What actually physically happens?
AM: Well, the first thing that you would want to do is bring the photo to places where the guy might have been seen, and you work from there to try to, maybe they bring that picture to Lord & Taylor, or the stores nearby. But what you try to do is get somebody to give you at least a lead on being able to identify the guy. I think one thing they wouldn’t want to jump to at the beginning was to broadcast that picture far and wide, because again, we’re dealing with a situation where we’re focused on the possibility of identifying one player. But most bombing enterprises are concerted activity with a variety of people. And once you publicly broadcast that you’ve got a bead on one of them, that tells everybody else to, not only that person, but everybody, to flee, to begin to destroy evidence, if they haven’t done that already, perhaps to intimidate witnesses and the like. So you would try, at least in the beginning, to go to the places where you have reason to think that this person has been, and try to identify him, at least by asking if anybody has seen him. And hopefully, that leads to other pieces of information. But it’s a painstaking process. That’s how you do it, I think.
HH: Is there a giant facial recognition software program in the sky that they can match this with?
AM: Well, they do have that kind of technology, but it’s not always reliable, depending on the quality of the image that you’re trying to match it up against. So one of the things they would have to do is try to get a decent resolution shot that would be big enough that they could actually identify someone, and detailed enough that they could run it against their databases and see what they could come up with. But again, it’s not, you know, you wish it was as high tech as something you would put in the movies, but it’s not a perfect process.
HH: But your advice is do not put that shot, do not amplify and make it very clear, and put the mug shot on television?
AM: Not at this point. I might have a different view of it a day or two from now, if I’ve come up empty, and this is the hail Mary I have to throw.
HH: Now Andrew McCarthy, I believe on Monday’s program, in the immediate aftermath of the terrorism, you mentioned that it was a full week between the first attack on the World Trade Center and the first arrest, when one of the perpetrators came back to try and get his deposit on the truck.
HH: And so I think we’re 48 hours into this, but television and 24/7 news, this is what’s different from 20 years ago, they’re pushing, pushing, pushing, and I think it’s insane, actually, to expect the police to have anything right now.
AM: Well, they certainly shouldn’t have anything that they’re willing to tell the press, because again, and it’s hard to say this when you don’t know the inside information they have, but what I’d be very, very concerned about at this point is if this is not a lone wolf. And most bombings are not lone wolf situations. You know, you focus too much in one person, and identify him before you figured out who the other players are, and gotten them all in pocket. And one of the hardest calls that you have to make in one of these investigations, particularly if they involve multiple players, is knowing that the moment you make an arrest, it’s going to be public very soon after that, and if you make that arrest before you’ve figured out where everybody else who should be arrested is, you may trigger people’s flight, and you may create a situation where you never get to put cuffs on everybody who ought to be arrested. Now this is a case of a mass murder, and it’s obviously irresponsible to leave somebody out there if you’ve already identified him. So you’ll want to figure out, if you can, a way to arrest the guy and let, you know, as much time go by as possible before that has to become public, so at least you have a chance to run around and arrest anyone else who needs to be arrested. But I’m sure one of the things they’re very worried about now is whether they not only identify this one guy we’re talking about, but whether they can do it in a way that enables them to grab everybody that needs to be grabbed.
HH: Andrew McCarthy, I don’t know your schedule. Can I keep you an additional segment?
AM: Yeah, of course.
HH: Great, and as we go into break, 30 seconds, what’s your gut tell you at this point? Are we dealing with jihadism? Or do you think we’re dealing with fringe extremism of left or right?
AM: I don’t know, Hugh. I don’t think we know any more about that than we did yesterday. I think jihadism is a better theory, but I wouldn’t discount anything.
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HH: Breaking new ground in journalism by asking people who actually know things what they think about the Boston Massacre attack. Andrew C. McCarthy, former federal prosecutor, the man who put the Blind Sheik behind bars, the author of many fine books, including Spring Fever, about the Arab revolution, and of course, Willful Blindness, about the prosecution of Sheik Rahman, and all the bad guys associated with the first attempt to bring down the World Trade Center. Andrew McCarthy, here’s the key question you raise. We do not know, of course, who the perpetrator is. If it turns out to be a foreign national, does the option exist not to prosecute them as we would prosecute an ordinary American heinous murderer? But do we have other options in front of us?
AM: I think, Hugh, if the person who is captured fits into the category of enemy combatant, as that’s defined in the authorization of military force that Congress enacted after 9/11, and in the other statutes, the related ones they passed like the Detainee Treatment Act, and the Military Commissions Act, which lays out a definition of who the enemy combatants are, then you could bring that person into the military custody and treat him as an enemy combatant. I also think that you would be able, for a reasonable period of time, to detain that person as an enemy combatant until you figured out whether he fit that definition or not.
HH: And in that status, are they owed an attorney? If they are an enemy combatant, do we owe them an attorney, even if they’re on American soil?
AM: No. No.
HH: That’s very, who gets to make that call, Andrew McCarthy?
AM: Well, it’s the President, ultimately, who makes the call, but it’s done in the chain of command that he set up. Now for whatever reason, the President seems to have looked to Attorney General Holder’s guidance on that question. That’s odd, historically, because generally speaking, it’s the professional military that decides who the enemy combatants are in wartime. But the administration has tended to look at the Justice Department for guidance on that. And I think, Hugh, that’s because what we’re having right now is more of an academic discussion than a real one. This administration is philosophically wedded to the idea of treating everybody as a civilian criminal defendant. So I’d be stunned if they had a new person come into custody who they put into the military system. What I think they’re trying to do is actually undermine the military system that we have, and take the people who are in that system and put them in the civilian system.
HH: Now take us into the decision making concerning the eventual arrests that are made here. Who is going to have charging and investigatory authority? You obviously have a United States Attorney for Boston, for the, I guess there’s one district in Massachusetts. I’m not sure, actually, don’t know. You’ve got the Attorney General, the head of the criminal division, you’ve got all sorts of different people making calls here. Who’s running this game?
AM: Well, it should be being run by the U.S. Attorney, and the FBI Joint Terrorism Task Force in Boston. But given the gravity of the situation, the fact that we are at war, and other government agencies are involved, potentially, in this case, certainly, for example, if it is, if it turns out to be an al Qaeda operative, so that you have a military option, they would be, the Defense Department should at least be being kept informed about what’s going on. But I think this is one of those calls where the U.S. Attorney will make the ultimate decision about charges. The FBI will consult heavily with the U.S. Attorney about whether arrests can be made or not. Certainly until there’s consensus with people in the Justice Department, the FBI won’t go off and make an arrest unless it’s an emergency situation where they have to grab somebody. And I think ultimately, the U.S. Attorney in this case is not going to move forward without getting an okay from the Justice Department, just because of the gravity of it. So that conversation will be ongoing on the thing.
HH: On a practical level, eventually, somebody handed Andrew C. McCarthy a file that had the Blind Sheik’s picture in it. And you had to develop a case. And that means, in the same way that Gil Garcetti had nothing to do with O.J., and it ended up being Darden and whoever else, Marsha, you know, someone has to prosecute that. Who gets picked for that? And are people putting up their hands right now? Or are they running away from this?
AM: You know, there’s no single explanation of how people will react. I think more people are putting up their hand for it than running away from it, although both things do happen. In my situation, we really didn’t have a model for how to do an international terrorism case. And I happened to have done a bunch of international racketeering cases, so I was kind of a natural person to come to, because that was the closest analogy that we had. Nowadays, unlike 1993, they actually have terrorism units in most big U.S. Attorney offices. I imagine that have one in the U.S. Attorney’s office in Boston. So there’ll be a ready-made framework of a, you know, a unit of lawyers who have some expertise in these kind of investigations. There’ll be JTTF agents, the Terrorism Task Force up there. And they will be the ones who basically decide how the evidence matches up with the available charges. And I guess I should also point out that charging these cases is a lot easier now than it was in 1993 because of the overhaul of counterterrorism law that was done in 1996. You have charges that are ready-made for dealing with international terrorism as of 1996. That should not be difficult.
HH: Three quick questions, a Chinese national was involved. Does that involve in any way, shape or form the PRC? Do they have rights into the inquiry that otherwise wouldn’t exist?
AM: They don’t have rights, because the rights of a victim don’t run to the country. But as a matter of diplomacy and just common decency, they’ll be kept appropriately informed.
HH: All right, secondly, have any of the major American networks contacted you to provide analysis?
HH: Which one are you working for?
AM: I’m not working for any of them, because I only work for you, Hugh, as you well know.
AM: But I have been in touch with NBC, and I’ve been in touch with Fox, and they’ve both been very nice. And we’ve had some discussion back and forth.
HH: I think they’ve just got to get you doing this, because the quality of the analysis is just so awful if anyone has read anything thus far. Last question, are you bothered by the almost clinical descriptions of ricin, and how to make pressure cooker bombs, which are 24/7 now at every stage? Maybe it’s ubiquitous and there’s nothing that can be done. But does it bother you in any way?
AM: Yeah, I am bothered by it, but I also, to be realistic, if you have people who are really interested in that stuff, it’s available and readily found. I don’t think it’s a good thing that we have to broadcast that stuff. I really do think that there’s a certain point in time where enough information is enough, and more than that is more dangerous and edifying. But the fact is that, you know, if you’ve got bad people who want to know how to do ricing things, and how to do other explosive things, that information, unfortunately, is readily available on the internet.
HH: Last question, ricing envelope showing up today in Congress, yesterday in Congress as well. Triggered by Boston? Coincidental? Or simply that’s what happens when bad things happen, all the crazies come out?
AM: Not possible to say in any way other than speculation now, but I do know that if we were investigating these cases, you would want to make sure until you knew they were unrelated, that people handling both investigations were informed of developments in the other one.
HH: @AndrewCMcCarthy on Twitter, you’re the guy I’m following completely. Keep working on that, @AndrewCMcCarthy on Twitter. Thank you, Andrew.
End of interview.