Janet Napolitano, President Obama’s secretary of homeland security, has been rightly criticized for her declaration that “the system worked” in the thwarted plot to bring down Northwest Airlines Flight 253. Secretary Napolitano and the Obama administration quickly pulled up stakes on that position in the face of ridicule from all corners. Less noticed is the administration’s continuing insistence that another system will work to protect the country from future attacks. This time they have put their unquestioned faith, and our security, in the hands of our civilian law-enforcement institutions and the federal courts.
The Justice Department announced charges against Umar Farouk Abdul Mutallab in a press release with characteristic matter-of-factness, including the standard reminder that “criminal complaints contain mere allegations and a defendant is presumed innocent until proven guilty.” Press releases serve many purposes, not least of which is to inform the public that a dangerous person has been apprehended. Charging Mutallab with a crime is no cause for relief, however. Instead, the decision renews concern about how seriously the administration is taking the threat posed by al-Qaeda and other terrorist organizations, and whether we are slipping back into the pre-9/11 mindset of treating terrorism as principally a law-enforcement problem. Whatever legitimate role our civilian authorities may have in eventually bringing Mutallab to justice for attempting to blow up the airplane, experience and common sense tell us they are a poor means of addressing the more immediate problem — acquiring intelligence to stop the next attack before it happens.
The Obama administration arrested Mutallab on Christmas Day, and the next day charged him with the crimes of attempting to destroy the airplane and placing a destructive device onboard. Mutallab was charged in a federal criminal complaint, which is almost always a precursor to indictment by a grand jury and then a trial. His case is now being processed in the civilian system. But this swirl of activity gave only the illusion of real action and betrayed a fundamental disconnect between the nature of the terrorist threat we face and the tools the administration is willing to deploy to protect the country.
President Obama faced a choice when he learned about the attack. He could have permitted the Justice Department to take the lead and rush to treat Mutallab like any individual suspected of a crime, with all the attendant constitutional and statutory protections afforded criminal suspects, including Miranda warnings, the right to an attorney, and the right to remain silent. Or the president could have ordered Mutallab, who is neither a U.S. citizen nor a permanent or temporary resident of this country, transferred into military custody for interrogation as an unlawful enemy combatant with no such rights.
The Obama administration has rebranded unlawful enemy combatants “unprivileged enemy belligerents,” presumably to take the sting out of the original phrase used by the Bush administration. By whatever name, designating Mutallab as an enemy of the United States would have provided interrogators much greater flexibility in questioning him and given him no legal right to resist. The decision to charge Mutallab as a criminal, rather than designate him as an enemy combatant, was a momentous one that in all likelihood guarantees we will gain less intelligence about how the attack was planned, who planned it, and whether others are on the way.
Most disturbing was the speed with which the Obama administration made this critical choice. It took less than 24 hours for the Justice Department to bring charges against Mutallab. This was surely insufficient time for the White House and the federal government’s various experts in intelligence and national security to evaluate how valuable an intelligence resource Mutallab might be or what would be the best way to obtain that intelligence. Press reports suggest that Mutallab has voluntarily provided some general information to investigators about the plot, but imagine how much more information — including specific details on his co-conspirators and future plots — he might have divulged if his cooperation with investigators were not purely voluntary. Indeed, the fact that so much is becoming public about what he has told investigators is itself disturbing. Intelligence derived from interrogations of al-Qaeda detainees was previously so highly classified that even government officials with the highest levels of security clearance were not permitted to see the information without being granted special access. Classified information has never been a comfortable fit with our civilian criminal-justice system, which is premised on transparency and public trials. And make no mistake, the Obama administration sees Mutallab as a law-enforcement problem.
If there were evidence that the leadership of the administration had thought long and hard about how to treat Mutallab and nevertheless chose the current course, one could disagree with the policy decision but would have to acknowledge that intelligent people had considered all the options. But the head-spinning turnaround time from Mutallab’s arrest to his being charged as a criminal suggests that it was not a close call for the Obama administration, or one to which it even gave much deliberation. To the administration, the answer appears to have been easy: Charge the crimes first, ask questions later. But doing so is impermissible under our Constitution, at least without getting Mutallab’s prior informed consent to questioning.
So what might we have lost by treating Mutallab as a criminal rather than as an enemy combatant? For one thing, it was always implausible that Mutallab acted alone, even though it was not until President Obama made his first public comments about the attack, on Monday, that the administration acknowledged this. Now reports are that an al-Qaeda branch in Yemen has taken responsibility for the failed attack, which is consistent with Mutallab’s statements that he is a member of al-Qaeda and received training in Yemen. If Mutallab had been designated as an enemy combatant, interrogators could question him at length about who trained him, who provided him the bomb-making materials, who helped him travel to Europe and the United States, who are his contacts in Europe, the United States, Nigeria, and Yemen, what other plots he knows about, and many other topics.