Where the U.S. went wrong on the Christmas Day bomber

This is a discussion on Where the U.S. went wrong on the Christmas Day bomber within the Law Enforcement, Military & Homeland Security Discussion forums, part of the Related Topics category; Good write-up! washingtonpost.com Where the U.S. went wrong on the Christmas Day bomber By Michael B. Mukasey Friday, February 12, 2010 It seems to me ...

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    Where the U.S. went wrong on the Christmas Day bomber

    Good write-up!

    washingtonpost.com

    Where the U.S. went wrong on the Christmas Day bomber

    By Michael B. Mukasey
    Friday, February 12, 2010

    It seems to me unlikely that Umar Farouk Abdulmutallab will be known to future generations of lawyers for generating any groundbreaking legal principle or issue. But when it comes to illuminating our public discourse about the "global war on terror," he is right up there with Clarence Earl Gideon, Ernesto Miranda or even Jose Padilla. His case presents in one tidy package virtually all the issues that arise from the role intelligence plays in this struggle and compels us to examine what the law requires and what it doesn't.

    When Abdulmutallab tried to detonate a bomb concealed in his undershorts, he committed a crime; no doubt about that. He could not have acted alone; no doubt about that either. The bomb was not the sort of infernal device readily produced by someone of his background, and he quickly confirmed that he had been trained and sent by al-Qaeda in Yemen.

    What to do and who should do it? It was entirely reasonable for the FBI to be contacted and for that agency to take him into custody. But contrary to what some in government have suggested, that Abdulmutallab was taken into custody by the FBI did not mean, legally or as a matter of policy, that he had to be treated as a criminal defendant at any point. Consider: In 1942, German saboteurs landed on Long Island and in Florida. That they were eventually captured by the FBI did not stop President Franklin Roosevelt from directing that they be treated as unlawful enemy combatants. They were ultimately tried before a military commission in Washington and executed. Their status had nothing to do with who held them, and their treatment was upheld in all respects by the Supreme Court.

    If possible, FBI custody is even less relevant today in determining someone's status. In 1942 the FBI was exclusively a crime-fighting organization. After Sept. 11, 2001, the agency's mission was expanded beyond detection of crime and apprehension of criminals to include gathering intelligence, helping to prevent and combat threats to national security, and furthering U.S. foreign policy goals. Guidelines put in place in 2003 and revised in September 2008 "do not require that the FBI's information gathering activities be differentially labeled as 'criminal investigations,' 'national security investigations,' or 'foreign intelligence collections,' or that the categories of FBI personnel who carry out investigations be segregated from each other based on the subject areas in which they operate. Rather, all of the FBI's legal authorities are available for deployment in all cases to which they apply to protect the public from crimes and threats to the national security and to further the United States' foreign intelligence objectives."

    "As with criminal investigations generally, detecting and solving the crimes, and eventually arresting and prosecuting the perpetrators, are likely to be among the objectives of investigations relating to threats to the national security. But . . . other measures needed to protect the national security . . . may include . . . providing threat information and warnings to other federal . . . agencies and entities; diplomatic or military actions; and actions by other intelligence agencies to counter international terrorism or other national security threats."

    Contrary to what the White House homeland security adviser and the attorney general have suggested, if not said outright, not only was there no authority or policy in place under the Bush administration requiring that all those detained in the United States be treated as criminal defendants, but relevant authority was and is the opposite. The Supreme Court held in Hamdi v. Rumsfeld that "indefinite detention for the purpose of interrogation is not authorized" but also said in the same case that detention for the purpose of neutralizing an unlawful enemy combatant is permissible and that the only right of such a combatant -- even if he is a citizen, and Abdulmutallab is not -- is to challenge his classification as such a combatant in a habeas corpus proceeding. This does not include the right to remain silent or the right to a lawyer, but only such legal assistance as may be necessary to file a habeas corpus petition within a reasonable time. That was the basis for my ruling in Padilla v. Rumsfeld that, as a convenience to the court and not for any constitutionally based reason, he had to consult with a lawyer for the limited purpose of filing a habeas petition, but that interrogation need not stop.

    What of Richard Reid, the "shoe bomber," who was warned of his Miranda rights and prosecuted in a civilian court? He was arrested in December 2001, before procedures were put in place that would have allowed for an outcome that might have included not only conviction but also exploitation of his intelligence value, if possible. His case does not recommend the same procedure in Abdulmutallab's.

    The struggle against Islamist extremists is unlike any other war we have fought. Osama bin Laden and those like-minded intend to make plain that our government cannot keep us safe, and have sought our retreat from the Islamic world and our relinquishment of the idea that human rather than their version of divine law must control our activities. This movement is not driven by finite grievances or by poverty. The enemy does not occupy a particular location or have an infrastructure that can be identified and attacked but, rather, lives in many places and purposely hides among civilian populations. The only way to prevail is to gather intelligence on who is doing what where and to take the initiative to stop it.

    There was thus no legal or policy compulsion to treat Abdulmutallab as a criminal defendant, at least initially, and every reason to treat him as an intelligence asset to be exploited promptly. The way to do that was not simply to have locally available field agents question him but, rather, to get in the room people who knew about al-Qaeda in Yemen, people who could obtain information, check that information against other available data and perhaps get feedback from others in the field before going back to Abdulmutallab to follow up where necessary, all the while keeping secret the fact of his cooperation. Once his former cohorts know he is providing information, they can act to make that information useless.

    Nor is it an answer to say that Abdulmutallab resumed his cooperation even after he was warned of his rights. He did that after five weeks, when his family was flown here from Nigeria. The time was lost, and with it possibly useful information. Disclosing that he had resumed talking only compounded the problem by letting his former cohorts know that they had better cover their tracks.

    The writer was U.S. attorney general from 2007 to 2009 and the presiding judge at initial proceedings against Jose Padilla in 2002.
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    Member Array Corwin's Avatar
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    This is a good write-up too...

    Glenn Greenwald

    A couple of excerpts, click on Glenn's name above for the whole thing.

    Mukasey specifically accuses the Obama administration of losing valuable intelligence by allowing Abdudlmutallab access to a lawyer, and insists that the accused Christmas Day bomber had no constitutional rights because -- despite his being detained in the U.S. -- he is merely an "enemy combatant."

    But when Mukasey was a federal judge, he made the opposite arguments. In 2002, the Bush administration detained Jose Padilla at Chicago's O'Hare Airport, publicly labeled him The Dirty Bomber, declared him an "enemy combatant," transferred him to military custody, and refused to charge him or even to allow him access to a lawyer. When a lawsuit was brought on Padilla's behalf, Mukasey was the assigned judge, and he ordered the Bush administration to allow Padilla access to a lawyer. When the Bush administration dithered and basically refused (asking Mukasey to reconsider), Mukasey issued a lengthy Opinion and Order threatening to impose the conditions himself and explaining that Padilla's constitutional right to a lawyer was clear and nonnegotiable. So resounding was Mukasey's defense of Padilla's right to a lawyer that, when he was initially nominated as Attorney General, many anti-Bush legal analysts -- including me -- cited Mukasey's ruling in Padilla to argue that he was one of the better choices given the other right-wing alternatives. Indeed, I analyzed his decision in Padilla at length to argue that, at least in that case, Mukasey "displayed an impressive allegiance to the rule of law and constitutional principles over fealty to claims of unlimited presidential power," and that he "was more than willing to defy the Bush administration and not be intimidated by threats that enforcing the rule of law would prevent the President from stopping the Terrorists

    What's most striking is that, in the Padilla case, Mukasey emphatically rejected the very arguments he is now making to attack Obama.
    More dishonestly still, Mukasey in today's Op-Ed claims that he ordered Padilla to have access to counsel only "as a convenience to the court and not for any constitutionally based reason," and only because Padilla (unlike Abdulmutallab) was a U.S. citizen. Both of those excuses are blatantly and demonstrably false. The whole legal basis for Mukasey's ruling was that (1) he would order Padilla to have access to counsel even if he had believed Bush's fear-mongering claims because Padilla had a constitutional right to counsel; and (2) the basis for that right is not that Padilla is a citizen, but rather, that all "persons" on U.S. soil have that right. Just listen to what the Mukasey back then said in order to see how blatantly dishonest the Mukasey of today is (emphasis added):


    Even if the predictions [of the Bush DOJ] were reliably more certain than they in fact are, I would not be free simply to take the counsel of Admiral Jacoby's fears, however well founded and sincere, and on that basis alone deny Padilla access to a lawyer. There is no dispute that Padilla has the right to bring this petition, and, for the reasons set forth in the Opinion, the statute makes it plain that he has the right to present facts if he chooses to do so. . . .

    Arbitrary deprivation of liberty violates the Due Process Clause, Foucha v. Louisiana, 504 U.S. 71, 80 (1992), which "applies to all 'persons' within the United States," Zadvydas v. Davis, 533 U.S. 678, 693 (2001). . . . [U]nless he has the opportunity to make a submission, this court cannot do what the applicable statutes and the Due Process Clause require it to do: confirm what frankly appears likely from the Mobbs Declaration but cannot be certain if based only on the Mobbs Declaration -- that Padilla's detention is not arbitrary, and that, because his detention is not arbitrary, the President is exercising a power vouchsafed to him by the Constitution. . . .

    The Court in Hamdi took pains to point out that its holding was limited to "the specific context before us -- that of the undisputed detention of a citizen during a combat operation undertaken in a foreign country and a determination by the executive that the citizen was allied with enemy forces." Hamdi, 316 F.3d at 465. That wise restraint is well worth following in this case by recognizing explicitly the limits of the current holding, and thereby recognizing as well the contrast between this case and Hamdi. Unlike Hamdi, Padilla was detained in this country, and initially by law enforcement officers pursuant to a material witness warrant. He was not captured on a foreign battlefield by soldiers in combat. The prospect of courts second-guessing battlefield decisions, which they have resolutely refused to do, e.g., id. at 474; cf. Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 673 (1977), does not loom in this case.

    It's true that this decision did not address the question of Miranda warnings, but the point is that Mukasey's reasoning there directly negates what he is now arguing. Based on those two findings -- that (1) there was no clear evidence that allowing access to a lawyer would jeopardize intelligence-gathering and, even if there were, it wouldn't matter, because (2) Padilla, as someone detained on U.S. soil., had a constitutional right to a lawyer -- Mukasey ordered the Bush DOJ to comply with his directive in unusually strong language:


    Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct a further "dialogue" about whether he will be permitted to do so. It is a ruling -- a determination -- that he will be permitted to do so.

    Note, too, that Mukasey insisted that courts have the constitutional obligation to ensure that presidential-ordered detentions "are not arbitrary," a claim both the Bush administration and now the Obama administration, in some circumstances, vigorously contests.
    And the debate goes on...

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    What is needed is some consistency in policy but the famous cases are all somewhat different from each other in significant ways.

    Abdulmutallab and the Reid cases are unlike Hamdan, which is also unlike Padilla. Therefore it is wrong to reason that what was done with one should be done with the others.

    Abdulmutallab unlike all of the others actually committed his crime on US soil. The plane wasn't over the ocean when he attempted to set off the bomb, as was the case with Reid. The crime was plainly done on US Soil by a foreign national who was acting as an enemy combatant. This certainly would make trying him in the military system, or summarily shooting him, not entirely unreasonable. Doing so could be accomplished without jeopardizing any rights of US citizens, as seemed to be the case with the way Padilla and Hamdan were handled.

    However, since the crime happened on US soil, and at a time when the courts are functioning, I see no reason to treat him as anything other than a foreign national who committed a crime here, not any different than the drug gangsters who roam Los Angeles. They too have help from abroad who are effectively terrorists. How do we distinguish their situation from Abdulmutallab'a situation, logically? Are we going to start throwing every drug thug who is a foreign national into the military system?

    Once we go down the path we did for Padilla before he was transferred back to the civilian courts for trial (on different charges than he was held on) we are giving up our own right to counsel and to trial. That is why I found Bush's position on Padilla entirely unacceptable, whereas I couldn't really care less how or what was done to Richard Reid or is being done to Abdulmutallab.

    It is The President's call, and except as a matter for political contention, I think it makes no difference. In the end the guy is going to be spending the rest of his life--or nearly the rest of his life-- in Super Max.*

    *It sounds like some deal is being made for him to get some measure of leniency in return for giving up lots of information about what is going on in Yemen. That might be a good deal for both the US and for Abdulmutallab, and more than what would be obtained with "harsh interrogation" methods.

    Also, in the unlikely event he is acquitted in the civilian system, I wouldn't bet against his being then transferred to the military system on the grounds that he is in fact an enemy combatant. No double jeopardy involved since that isn't the charge he is facing in the civilian courts, and it is factually true that he is a non-citizen enemy combatant.
    Last edited by Hopyard; February 13th, 2010 at 10:49 AM.

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    Actually what's needed is to stop pretending we are on new ground and start following the laws that have been in place for quite some time now.

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    Actually what's needed is to stop pretending we are on new ground and start following the laws that have been in place for quite some time now.

    +1
    This "we are on new ground" thing got the Bush white house shot down three times by the SCOTUS. Now the Obama bunch has taken it in another wrong direction.

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    We have members of a terrorist organization who want to kill us and terrorize our country. They are not citizens. They do have basic human rights, but not access to our civilian court system. They have declared war on us, and we on them. By any definition, they are enemy combatants not in the uniform of a foreign power. By historical and legal precedent, they can be interrogated without lawyers, incarcerated until the cessation of hostilities, tried in military courts, and executed without normal due process.

    Stop treating them as US citizens who are accused of committing a crime.

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    Quote Originally Posted by AutoFan View Post
    We have members of a terrorist organization who want to kill us and terrorize our country. They are not citizens. They do have basic human rights, but not access to our civilian court system. They have declared war on us, and we on them. By any definition, they are enemy combatants not in the uniform of a foreign power. By historical and legal precedent, they can be interrogated without lawyers, incarcerated until the cessation of hostilities, tried in military courts, and executed without normal due process.

    Stop treating them as US citizens who are accused of committing a crime.
    These people are committing criminal acts that are illegal according to the laws on the books. Existing processes are more than capable of dealing with them. The mafia is a criminal organization but we don't "declare war" on them and throw out all the legal rules and use the military to deal with them.

    War can only be declared by one sovereign country on another. And in this country, only congress can declare war. By whose definition are we at war? Certainly not the constitution's. By whose definition are they enemy combatants? According to what law or treaty? "By definition" we would have to be in a declared war with another sovereign country in order to make that determination about anyone.

    In the absence of a declared war with another sovereign country, these people are merely criminals and should be charged and tried as such. All persons in US jurisdiction are entitled to this, not just US citizens. Mukasey himself has said this in a legal ruling.

    Many people have been tried and convicted of terrorism-related charges in our courts. We don't need to throw away the rule of law to deal with "terrorists", and doing so has lowered us to their level and is destroying the very freedoms we are supposedly defending.
    Last edited by Corwin; February 14th, 2010 at 08:42 PM. Reason: spelling correction

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    You execute them they don't come back. Deport them or give them a short jail term and you will probably see them again and this time they might manage to set the bomb off.

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    The goal of a criminal organization is to make money illegally or to bypass the laws of the country in order to obtain materials or services deemed illicit by the country in question.

    A terrorist organization exists to achieve a political goal otherwise unattainable by legitimate political means. The methods the terrorist organization uses is fear and terror, usually by mass death, rape, mutilation or destruction. They only make money as a means an end. Although they commit what would be deemed crimes, they are not criminals in the classic sense of the word.

    And at least Al-queda has declared war on the USA. Also, a country such as the USA can (and has) declared war on non-sovereign groups. Especially since the Supreme Court of the United States has ruled that the Geneva Convention applies to the enemy combatants captured by the US military. This makes them POWs captured on the battlefield not wearing the uniform of any nation. Under the terms of the Geneva Convention, they then do not get treated as criminals in the US Justice system, even if they commited criminal acts. They also lose a number of protections afforded POWs from a recognized nation. They are treated the same as spies and saboteurs.

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    Quote Originally Posted by AutoFan View Post
    The goal of a criminal organization is to make money illegally or to bypass the laws of the country in order to obtain materials or services deemed illicit by the country in question.

    A terrorist organization exists to achieve a political goal otherwise unattainable by legitimate political means. The methods the terrorist organization uses is fear and terror, usually by mass death, rape, mutilation or destruction. They only make money as a means an end. Although they commit what would be deemed crimes, they are not criminals in the classic sense of the word.

    And at least Al-queda has declared war on the USA. Also, a country such as the USA can (and has) declared war on non-sovereign groups.
    Really, the US Congress has declared war on non-sovereign groups? To my knowledge, Congress has only declared war 5 times and they were all against countries.

    Especially since the Supreme Court of the United States has ruled that the Geneva Convention applies to the enemy combatants captured by the US military. This makes them POWs captured on the battlefield not wearing the uniform of any nation. Under the terms of the Geneva Convention, they then do not get treated as criminals in the US Justice system, even if they commited criminal acts. They also lose a number of protections afforded POWs from a recognized nation. They are treated the same as spies and saboteurs.
    And what battlefield would that be? People sold by warlords for the bounty were taken on a battlefield? A 14-year-old kid grabbed from a mosque in Pakistan was taken on a battlefield? People yanked out of their own homes and thrown into Bagram or Abu Graib were taken on a battlefield? The skies over America are a battlefield? Is the whole world a battlefield now? Everyone detained in the Great and Holy War on Terror is a POW? Let's just declare war on everything and do away with the courts altogether. It's hit-or-miss whether justice is actually ever achieved in them anymore anyway... let's just kill 'em all and let God sort 'em out... yeah! </sarcasm off>

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    Can someone give me a complete definition of "enemy combatant"? I never quite seem to follow how the determination is made...
    "a reminder that no law can replace personal responsibility" - Bill Clinton 2010.

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    Check out what we did in the Phillipines or Honduras. I don't know if Congress officially declared war in either case, but it sure looked like one in both cases. We do lots of military actions without declaring war. I'm sure with a little research one can find more examples. Besides, constitutionally the President declares war (the War Powers Act has never been challenged in court) and the Congress authorizes funding.

    Besides, I disagree with the Supreme Court ruling the Geneva Convention applies to enemy combatants. But if they say it is so, no one can really argue with them short of passing a constitutionally valid law or amending the constitution (or withdrawing from the Geneva Convention). So those people arguably have fewer protections than if it did not.

    And enemy combatants (aka spies, saboteurs and terrorists) don't have to be captured on the battlefield. The German agents captured in the US during WWII were arrested in a hotel on American soil. And tried by a military tribunal. And executed.

    Hell, during WWII we detained the crew of a captured U-boat until the end of the war, without ever notifying their country, families or letting the Red Cross visit or even know of them.

    The only people detained that are POWs are those in conflict zones where the military is deployed. Having said that, terrorists are no different than spies or saboteurs. If they are foreign nationals, they don't get access to the US court system, they are pumped for intel and locked up until releasing them grants the US some advantage. It is how we handled these situations in the 40's, 50's, 60's, 70's and 80's (until the Wall came down). A US citizen is different.

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    Member Array Impetus's Avatar
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    Blindfold them, put them up against a wall and...

    Is it wrong of me to feel that way?

    In all seriousness, these individuals and organizations may not have legally declared war on us, but there opening strikes were carried out exactly like one would initiate a war: On September 11th they went after our economy and our military. They attacked the Pentagon, the nerve center of American military power, and the World Trade Center, an epicenter of economic activity. Their goal was not merely to scare us, it was to destroy our military and our economy. Their intended goal was to cripple this country. This was no Oklahoma City, this was an intelligent and coordinated strike on our national infrastructure. Sound like war to me.

    And as someone who lost a very close friend in these attacks, it matters not to me if they died from bombs dropped by a plane or a plane used as a bomb, all that matters is that they were killed by a foreign organization with political and financial backing from multiple countries, not by a lone wacko. I see no reason why we cannot be at war right now. Not after what they did.
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    Quote Originally Posted by AutoFan View Post
    Check out what we did in the Phillipines or Honduras. I don't know if Congress officially declared war in either case, but it sure looked like one in both cases. We do lots of military actions without declaring war. I'm sure with a little research one can find more examples. Besides, constitutionally the President declares war (the War Powers Act has never been challenged in court) and the Congress authorizes funding.
    The president declaring war is not constitutional. Never was, never will be without an actual amendment to the constitution. Neither is congress "delegating" its powers to a different branch of the government. "Never been challenged in court" does not make it legal. You should read the US Constitution some time, it's not very long and it's pretty easy to understand.

    Besides, I disagree with the Supreme Court ruling the Geneva Convention applies to enemy combatants. But if they say it is so, no one can really argue with them short of passing a constitutionally valid law or amending the constitution (or withdrawing from the Geneva Convention). So those people arguably have fewer protections than if it did not.

    And enemy combatants (aka spies, saboteurs and terrorists) don't have to be captured on the battlefield. The German agents captured in the US during WWII were arrested in a hotel on American soil. And tried by a military tribunal. And executed.

    Hell, during WWII we detained the crew of a captured U-boat until the end of the war, without ever notifying their country, families or letting the Red Cross visit or even know of them.

    The only people detained that are POWs are those in conflict zones where the military is deployed. Having said that, terrorists are no different than spies or saboteurs. If they are foreign nationals, they don't get access to the US court system, they are pumped for intel and locked up until releasing them grants the US some advantage. It is how we handled these situations in the 40's, 50's, 60's, 70's and 80's (until the Wall came down). A US citizen is different.
    You can't have "enemy combatants" or POW's without an actual war, which we do not have at this time. Just because we have been breaking our own laws for decades does not make it right now.

    The constitution does not differentiate between US citizens and foreigners in our system, except for holding office and voting. As I pointed out before, and so did Glenn Greenwald in the article I quoted above (did you read that?), Mukasey himself acknowledged in a court decision that everyone, not just US citizens, has the same legal rights in our system.

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    Quote Originally Posted by Impetus View Post
    Blindfold them, put them up against a wall and...
    How do you know you are blindfolding and executing the right people if you don't have a trial to determine the facts and prove the charges against them?

    Is it wrong of me to feel that way?
    No it's not wrong to feel that way, but reason has to rule over passion or we are no better than the barbarians who attacked us.

    In all seriousness, these individuals and organizations may not have legally declared war on us, but there opening strikes were carried out exactly like one would initiate a war: On September 11th they went after our economy and our military. They attacked the Pentagon, the nerve center of American military power, and the World Trade Center, an epicenter of economic activity. Their goal was not merely to scare us, it was to destroy our military and our economy. Their intended goal was to cripple this country. This was no Oklahoma City, this was an intelligent and coordinated strike on our national infrastructure. Sound like war to me.
    Sounds like war, maybe, but in reality 9/11 was a criminal act committed by a rogue group who may or may not have been members of a larger organization that still exists, not an act of war which, by defintion, can only be perpetrated by a sovereign nation. The name Al Queda (or Taliban) is slapped on everyone we chase around the middle east these days so who knows who is really a member of what? If you believe everything the federal government says, I have some "waterfront" land in Florida for sale...

    And as someone who lost a very close friend in these attacks, it matters not to me if they died from bombs dropped by a plane or a plane used as a bomb, all that matters is that they were killed by a foreign organization with political and financial backing from multiple countries, not by a lone wacko. I see no reason why we cannot be at war right now. Not after what they did.
    What countries backed the 9/11 terrorists and where is the proof of this?

    How many people who had nothing to do with 9/11 have to die, or be tortured, or forced out of their homes with no hope of return? How many people have to live in squalor in war zones with everything they worked for their whole lives destroyed by American bombs and artillery? How much misery and death and destruction do we have to rain down on millions of innocent people before we are satisfied that the deaths of 9/11 are avenged?

    "Vengeance is Mine, sayeth the Lord". We have sold our souls to the devil, and for what? So we can feel a little better because we "did something" about 9/11?

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