Attorney General Eric Holder has penned a five-page response to senators who demanded answers about his decision to Mirandize and charge Umar Farouk Abdulmutallab, the Christmas Day bomber, as a criminal defendant. It is a full-bore justification of the law-enforcement approach to combating terrorism, and despite its length, it does nothing to solve his problems.
Near the beginning of the letter, Holder writes: “I am confident that, as a result of the hard work of the FBI and our career federal prosecutors, we will be able to successfully prosecute Mr. Abdulmutallab under the federal criminal law.” No one has ever doubted that. Even if Abdulmutallab had never uttered a word in response to questioning, there were 200 witnesses on the plane he tried to blow up, not to mention the defective bomb discovered in his underpants, which should provide plenty of evidence to prosecute and convict him.
They didn’t need a confession to convict him, so why Mirandize him at all? Well, Holder explains, everyone did everything by the book. Again, no one doubts that the Justice Department followed its internal system to a T. But as one of us has discussed, the system itself is a big part of the problem, because it excludes the intelligence services from participation and prioritizes law-enforcement interests over intelligence gathering when a foreign terrorist is captured on U.S. soil.
Sure, the attorney general writes, he’ll let the intelligence services know what the Justice Department plans to do, and may even entertain their objections, but he’s driving the car, and those other agencies need to stay in their lane. Under this system, the attorney general would even Mirandize Osama bin Laden if he were captured in the U.S. His justification? The Bush administration did the same thing. For support, he trots out the now thoroughly debunked claim that 300 terrorists were convicted using the criminal-justice system during the Bush administration. Apparently he has not gotten around to reading Andy McCarthy’s demolition of those bogus numbers.
The attorney general then claims he was merely following the directive President Bush gave the Justice Department — namely, that it is in charge of “criminal investigations of terrorist acts or terrorist threats.” Well, of course the Justice Department is in charge of “criminal investigations.” That’s like saying the military is in charge of war fighting. The question that Holder’s response sidesteps is: Why is this being treated as a “criminal investigation” at all? Why is the Justice Department taking the lead? And why is the FBI conducting the interview if, as the attorney general tells us, its agents are required to Mirandize everyone no matter what the circumstances are?
His answer is to list a handful of terrorism convictions from the past decade. The list is not particularly illuminating, as it includes two men — Zacarias Moussaoui, who was supposed to be the 20th hijacker on 9/11, and Ahmed Ressam, the would-be Millennium Bomber — who were arrested before 9/11 even happened (in Ressam’s case, when Bill Clinton was president), and thus before President Bush had authorized detaining terrorists as enemy combatants. The remaining names on the list are men who conspired to commit terrorist acts, none of whom was caught “red-handed.” There would be a real question whether the government could persuade a court to hold them as enemy combatants rather than criminal defendants. Not so the underwear bomber, a failed suicide terrorist caught in the act. There is no reasonable doubt that his was an act of war.
The attorney general also drags out the old Richard Reid comparison, saying the shoe bomber was treated just like the underwear bomber. How about a little bit of context here? President Bush authorized detaining terrorists as enemy combatants in November 2001, about two months after 9/11. The shoe bomber was arrested in December 2001, only a month later. At that point, there was no system in place to handle enemy combatants and no military commissions. Attorney General Holder, who stresses the importance of following the rules, should understand that.
Also, the shoe bomber was arrested, charged, and convicted well before the Supreme Court in 2004 gave its approval to holding terrorists — even U.S. citizens — as enemy combatants outside the criminal-justice system. It’s now more than eight years since Reid’s arrest, and there can be no question that Abdulmutallab, a Nigerian national who flew to the U.S. to commit an act of war, could have been held as an enemy combatant. Nonetheless, the attorney general suggests that there is some legal doubt on this point.
The “doubt” apparently arises from a decision by a federal court of appeals that Ali al-Marri, a foreigner arrested in the United States, could be held as an enemy combatant. Yes, you read that last sentence right — a majority of the court said that the federal government can do this; a minority said it cannot. The majority prevails in our legal system. So the attorney general must share the views of the losing side in the al-Marri case that we lack the authority to hold a foreign terrorist captured in the U.S. as an enemy combatant, no matter what the law actually is.
The attorney general correctly states that another federal court of appeals ruled that Jose Padilla, a U.S. citizen captured in the United States, could not be held as an enemy combatant. What he doesn’t mention is that the Supreme Court reversed that court of appeals and sent Padilla’s case to a different court to be considered anew. The new court of appeals later ruled that, yes, the government can hold Padilla as an enemy combatant. That inconvenient truth is mentioned nowhere in the attorney general’s letter.
Mr. Holder’s preference for law enforcement over intelligence gathering comes through clearly in his letter from beginning to end. He even tries to twist a decision that former attorney general Michael Mukasey made when he was a judge into a justification for Mirandizing Abdulmutallab. Mukasey ruled that Padilla, who was being held as an enemy combatant, was entitled to consult with lawyers — for the limited purpose of challenging his continued detention as an enemy combatant. Judge Mukasey did not write that Padilla was entitled to have a lawyer present during interrogation, or that he had a right to remain silent, or that he should have been Mirandized. To the contrary, he ruled that Padilla could be held as an enemy combatant without a trial, though he could ask a court to free him.
If detained as an enemy combatant, Abdulmutallab would certainly have had the right to consult with a lawyer to challenge his detention. We’re pretty sure he would have lost, since he did, after all, try to set off a bomb on an airplane. But he would have had no right to have a lawyer present during his interrogation, no right to remain silent, and no right to be Mirandized.
The attorney general is the nation’s top law-enforcement officer, so his preference for law enforcement over intelligence gathering is no surprise. But Congress may have directed its questions to the wrong person. Perhaps the senators should instead be asking them of the man who put the Justice Department in the driver’s seat in the first place.
— Dana M. Perino is former press secretary to Pres. George W. Bush. Bill Burck is a former federal prosecutor and deputy counsel to President Bush.