In response to today’s excoriating editorial by the usually Obama-friendly USA Today editorial board about the administration’s bungled handling of Christmas Day bomber Umar Farouk Abdulmutallab, President Obama’s top counterterrorism adviser, John Brennan, haughtily writes that “we need no lectures” from critics in the media, the Congress, and the public. We were among the first to call out the administration on treating Abdulmutallab like a criminal rather than an enemy combatant, so we assume some of Brennan’s anger may be directed at us. Let us respond to some of his points:
Immediately after the failed Christmas Day attack, Umar Farouk Abdulmutallab was thoroughly interrogated and provided important information.
The administration has spent the past two weeks telling anyone who will listen, including our enemies overseas (whom Abdulmutallab apparently is flipping on), that Abdulmutallab’s family convinced him to start cooperating six weeks after he was Mirandized. Indeed, this is when Brennan himself writes that “[t]he most important breakthrough occurred.” How, then, could Abdulmutallab have been “thoroughly interrogated” immediately after he was arrested if “the most important breakthrough” came six weeks later, and only after his family intervened? This glaring contradiction goes unaddressed.
Senior counterterrorism officials from the White House, the intelligence community and the military were all actively discussing this case before he was Mirandized and supported the decision to charge him in criminal court.
Well, someone isn’t telling the American public the truth. Either the heads of the intelligence community lied to Congress several weeks ago when they all testified, under oath, they were not consulted, or Brennan is fibbing now. We hope it’s the latter, because the former is a potentially criminal offense. No one is going to jail for lying to the public.
The most important breakthrough occurred after Abdulmutallab was read his rights, a long-standing FBI policy that was reaffirmed under Michael Mukasey, President Bush’s attorney general.
This is only the policy if the FBI is placed in charge of the arrest and interrogation. This is circular reasoning at its best — we Mirandized Abdulmutallab because we had to under FBI policy because we called in the FBI. Hmm. We would hope for better from the White House’s top expert on counterterrorism.
Maybe the administration felt it had no choice but to use the FBI because the it just hasn’t gotten around to launching its much ballyhooed “High-Value Detainee Interrogation Group,” even though it’s a year and counting since President Obama shut down the CIA program it was meant to replace.
It’s naive to think that transferring Abdulmutallab to military custody would have caused an outpouring of information. There is little difference between military and civilian custody, other than an interrogator with a uniform. The suspect gets access to a lawyer, and interrogation rules are nearly identical.
Brennan just doesn’t understand the law. A suspect held as an enemy combatant in military custody has no right to be Mirandized and no right to remain silent. None whatsoever. An enemy combatant does get access to a lawyer to help him challenge his detention as an enemy combatant. And we’re confident that the government’s lawyers would have had no trouble convincing a judge that Abdulmutallab — a man caught trying to ignite a bomb in his underwear while on a plane, who then said before he was Mirandized that he’s a member of al Qaeda — is an enemy of the United States, not a common criminal. But that lawyer would not be present during interrogation, and we would not have to get Abdulmutallab’s consent before questioning him. The only naivete in evidence here is Brennan’s belief that the presence of a lawyer makes no difference. That would be news to the Supreme Court, which has repeatedly held that it is vital to protecting a criminal defendant’s — as opposed to an enemy combatant’s — rights that he have access to a lawyer at all times after arrest, including during government interviews.
Would-be shoe bomber Richard Reid was read his Miranda rights five minutes after being taken off a plane he tried to blow up. The same people who criticize the president today were silent back then.
Brennan does have a point here, but he draws the wrong conclusion. There is a good argument that Reid should have been designated as an enemy combatant, though we have explained (see here and here, for example) why the comparison to Reid is ultimately a flawed one. Moreover, as Bill McGurn discusses in an excellent Wall Street Journal column today, it is truly bizarre, disingenuous, and misleading for the Obama administration to cloak itself in the Bush mantle now that it is receiving bipartisan condemnation of its counterterrorism policies. It’s also a non sequitur to say that we should do the same thing the Bush administration did in one case because the Bush administration did it, especially given the fact that nine years have passed by since that case, during which time Congress and the Supreme Court have authorized a system for detaining and trying enemy combatants outside the criminal system.
Cries to try terrorists only in military courts lack foundation. There have been three convictions of terrorists in the military tribunal system since 9/11, and hundreds in the criminal justice system — including high-profile terrorists such as Reid and 9/11 plotter Zacarius Moussaoui.
Brennan is correct that there have been only three convictions in the military commission system — but that’s mainly because left-wing lawyers, including many who now populate the highest levels of the Obama-Holder Justice Department, filed lawsuit after lawsuit during the Bush years challenging the system on behalf of the detainees held at Guantanamo. Those lawsuits were not resolved until 2008, and even now some other lawsuits continue to slowly wend their way through our federal courts. As Andy McCarthy has explained, the “hundreds” of convictions of “terrorists” is a bogus number that vastly inflates the real numbers by including people convicted of crimes like identity theft and immigration fraud.
Brennan also indirectly undermines the legitimacy of the military-commission system that his own boss is planning to use against a number of suspected terrorists held at Guantanamo. Recall that the administration has announced that the men believed to have plotted the attack on the U.S.S. Cole will be tried by military commission. The administration’s bifurcated system — using civilian courts to hold show trials of KSM and others they believe they’ve got the goods on, while saving military commissions (with their somewhat lower evidentiary standards) for the tougher cases — smacks of cynicism.
It is somewhat refreshing to hear a senior Obama-administration official admit that they have nothing but disdain for military commissions. But this will also be fodder for the lawyers representing the U.S.S. Cole suspects when they seek to have the charges against their clients thrown out on the grounds that the administration bringing the charges doesn’t believe in the system.
Politically motivated criticism and unfounded fear-mongering only serve the goals of al-Qaeda.
Brennan ignores the widespread bipartisan criticism and clings to the old it’s-all-politically-motivated line. Forget the Democrats in Congress who are being just as tough on them as any Republican. Forget the editorial boards of the Washington Post (which pointedly asked, “Did the Obama administration blow an opportunity in the flight 253 case?” and answered (“yes”), USA Today, and many other newspapers not previously regarded as “fear-mongerers” or partisan Republicans.
And the notion that America’s counterterrorism professionals and America’s system of justice are unable to handle these murderous miscreants is absurd.
As has been his wont, Brennan caricatures the position of administration critics. No one has argued that “counterterrorism professionals” are not up to the task. The unanswered question is why only one subset of those professionals — those who work at the FBI, but none who work in the intelligence services or in the military — have been included. And no one has suggested that “America’s system of justice” can’t handle Abdulmutallab. America’s system of justice includes the military-commission system passed by the U.S. Congress, whether the administration likes it or not.
Nor has anyone suggested that Abdulmutallab could not be charged and convicted in a criminal trial eventually. The unanswered question is why the administration rushed to put him in the criminal system from the get-go. This was completely unnecessary: The law is clear that a foreign terrorist affiliated with al-Qaeda who is captured on U.S. soil may be lawfully held as an enemy combatant. Once Abdulmutallab had been thoroughly interrogated, the administration would have been free to choose whether to charge him in the civilian or military system (though we think the latter would be preferable). The point of interrogation, and holding Abdulmutallab even temporarily as an enemy combatant, is to get information to stop future attacks; the point of a trial, whether civilian or military, is to punish the wrongdoer. Conflating the two is Brennan’s — and the administration’s — most frustrating and dangerous mistake.
– 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.