The Justice Department is in full damage-control mode to quell the growing furor about its decision to treat Umar Farouk Abdulmutallab as a criminal defendant with Miranda rights, a decision we now know was made without consulting the intelligence services whose job it is to protect the country from attacks. The Obama administration has settled on a simple message: Everyone did everything consistently with prior practices and by the book, so what’s the fuss? All this criticism, the Justice Department sniffs, must be politically motivated. Move along, folks; there’s nothing to see here.
What, then, must administration officials make of the cratering support from even usual stalwarts such as the Washington Post
editorial board, which last weekend abandoned its earlier praise and eviscerated the Justice Department’s unilateral decision? The department’s message is proving ineffective for at least two reasons: One, the purported consistency with prior practices is an illusion; and two, the “book” to which they cling is itself the main problem because it systematically excludes the intelligence services from having a say in how to treat terrorists captured on U.S. soil. It is difficult to calm people, the Justice Department is learning, by reassuring them that standard operating procedure was religiously followed when that standard operating procedure has a loophole in it big enough to crash a plane through.
The Justice Department issued a statement late last week that has become the Obama administration’s mantra when answering questions about Abdulmutallab. It is a model of simplicity and brevity. Unfortunately, this is achieved by obfuscation and sleight of hand. The statement is further proof that the system for handling terrorists captured on our soil is designed to fail. We address each of the statement’s main points in order.
Since September 11, 2001, every terrorism suspect apprehended in the United States by either the Bush administration or the Obama administration has been initially arrested, held or charged under federal criminal law.
This is classic obfuscation. The Justice Department wants us to believe that this is the normal way we treat terrorists captured in the War on Terror. But the words “apprehended in the United States” and “initially” are doing all the work.
The Justice Department knows, but fails to mention, that the Bush administration detained hundreds of terrorists captured overseas as enemy combatants and sent them to Guantanamo. Furthermore, the number of terrorists captured overseas — not just the ones sent to Guantanamo but also those held in active war zones — dwarfs the number captured in the U.S. by orders of magnitude, so it is highly misleading to suggest that the general practice has been to treat terrorists like common criminals. In fact, that has been the exception, not the norm.
The Justice Department is drawing its now-familiar, but still bizarre, distinction between terrorists who come to our country to kill civilians and those who stay overseas and attack our troops. The attorney general and President Obama have yet to explain why the former should be given more rights and constitutional protections than the latter. The Justice Department’s position is consistent with the attorney general’s decision to bring Khalid Sheikh Mohammed to New York for a civilian trial, while the terrorists who planned the USS Cole bombing overseas will be tried by military commission. As one of us has previously discussed, this is an upside-down understanding of the laws of war and the Geneva Conventions that encourages terrorists to shift their efforts to killing American civilians in the U.S., where they can now be assured of a lawyer, a right to remain silent, and a trial by jury. Abdulmutallab is living proof of this to jihadists around the world.