In last month’s Wall Street Journal, Michael Mukasey — the last of President George W. Bush’s three attorneys general, and, before that, a federal judge — wondered ominously:
Are senior Obama administration officials considering transferring to Egypt a poisonously influential Islamist cleric serving a life term in federal prison for trying to unleash a war of urban terrorism in the United States? That's the impression several officials have given over the past three months, apparently out of fear that if the cleric dies in U.S. custody, American outposts in the Middle East could be overrun by vengeful mobs.
The Islamist in question is Omar Abdel Rahman, or the “Blind Sheik,” as he is better known. As a district judge, Mukasey presided over the latter’s trial, and imposed a life sentence for the Blind Sheik’s role in a conspiracy that included, among other things, the murder of a conservative New York rabbi and the World Trade Center bombing.
Lifetime incarceration has not diminished the Blind Sheik’s status among Islamists. As Mukasey notes, while in jail, the Sheik issued a fatwa that bin Laden later cited as justification for the 9/11 attacks. He still has backers in his U.S.-designated terrorist group, Gama al Islamiyah, and Egypt’s new President, Mohammed Morsi, also reportedly has called for the Sheik’s release. But contrary to speculation by Mukasey and others, all this suggests that Rahman won’t be leaving his federal pen in North Carolina. Another reason is that the Secretary of State has denied any talk or consideration of a transfer. Ditto spokespeople for the Justice Department and the National Security Council.
Skeptics like Mukasey are not persuaded. They note, for example, that one member of Gama al Islamiyah – who now is a member of Egypt’s parliament – was allowed to travel to the White House and urge the Sheik’s transfer. That seems to worry Andrew McCarthy, the man who prosecuted the Blind Sheik. In a column last week for the National Review, McCarthy batted away the Administration’s denials, and hinted that our feckless White House nevertheless might arrange for a handoff, sometime between election day and the next Administration’s swearing in.
So neither the Blind Sheik’s sordid biography nor White House denials are enough to discredit the rumors of an ill-advised transfer? Then here is another, more fundamental reason to credit the Administration’s position, and to dismiss alarmist claims by McCarthy, Mukasey, and their ilk: the law. Close your eyes and try to imagine for a moment that, in an election year, the president has opened up backchannel talks with the Egyptian government. Assume further that these are not diplomatic dangles, and that the President truly wishes to whisk the Blind Sheik away, immediately after votes have been tallied in November. How can he do that, exactly?
Certainly not through the Department of Justice’s international prisoner transfer program. Federal statutes authorize the attorney general to transfer federal prisoners to foreign jails, provided that a transfer treaty has been concluded between the United States and the receiving state. (Different rules apply to wartime detainees, like the men held at Guantanamo, but the Blind Sheik doesn’t fall into that category.) But no U.S-Egypt transfer treaty exists, and Egypt is not party to either of the two major multilateral transfer agreements which the United States has signed. Thus, if he wishes to adhere to longstanding practice, President Obama first would have to negotiate a treaty with Egypt; persuade two thirds of the Senate to bless the deal; and then ship the Islamist preacher off to live out his days in an Egyptian prison. That is a nonstarter for obvious reasons.
Could the White House avoid the usual regime for international transfers---that is, by claiming the unilateral power to relocate the Blind Sheik, notwithstanding the absence of a treaty or authorizing legislation? Maybe, though the President’s authority here is unsettled. The executive branch has discretion over where prisoners may be held, but that doesn’t obviously include the discretion to move a convict from a domestic jail to a foreign one. And in any case, a unilateral transfer would mean gutting a longstanding policy for the sake of an especially noxious jihadist, and justifying the departure to a skeptical public and an equally skeptical Congress.
That brings us to the president’s authority to issue pardons and to commute sentences. Though legally unbounded, the power’s exercise is subject to severe political constraints, of which this Administration is acutely aware. And suffice it to say that the politics of pardoning a convicted terrorist, upon the request of an Islamist radical, and in the name of placating Islamists abroad, are really, really bad – bad enough to make any president balk.
But that’s only if we accept the premise behind Mukasey’s and McCarthy’s claims – that an irresponsible transfer could happen any day now, our national security be damned. Again, there are good reasons to doubt that premise. And when we consider the legal rules – which Mukasey and McCarty must know well, given their prior jobs – the truth seems pretty clear: the premise is false.
The Blind Sheik, a duly convicted prisoner and member of a far-reaching terrorist conspiracy, isn’t going anywhere.