With Holder, the Politicizing Never Stops

by Andrew C. McCarthy

Umar Farouk Abdulmutallab, the would-be underwear bomber who tried to bring down Northwest Airlines Flight 253 and kill its 292 passengers and crew on Christmas Day 2009, has pleaded guilty in Detroit to all eight counts of the federal indictment against him. This is a very good thing for the country. He is looking at a potential term of life-imprisonment and, given the appropriately heavy sentences our civilian judges have imposed on convicted terrorists, he is likely to get it.

Not content to make those worthy points, Attorney General Eric Holder took time out from his masterful management of the Fast & Furious fallout to add:

Contrary to what some have claimed, today’s plea removes any doubt that our courts are one of the most effective tools we have to fight terrorism and keep the American people safe. Our priority in this case was to ensure that we arrested a man who tried to do us harm, that we collected actionable intelligence from him and that we prosecuted him in a way that was consistent with the rule of law. We will continue to be aggressive in our fight against terrorism and those who target us, and we will let results, not rhetoric, guide our actions.

Where to begin? I guess I’ll start with the attorney general’s disingenuous framing of the controversy. In point of fact, no one doubts that our courts are “one of the most effective tools we have to fight terrorism.” In most cases — particularly those involving material support to terrorist organizations and jihadist cells that spring up in the U.S. and are not operationally connected to al Qaeda — we want prosecution in the civilian courts. The judges have handled terrorism cases expertly, and those terrorism cases do not pose any danger of shielding the enemy with due process protections and providing the enemy with voluminous intelligence during wartime.

The controversy is strictly about a narrow category of terrorist: enemy combatants against whom Congress has authorized the use of military force (such that Holder supports killing even American enemy combatants without any judicial intervention). It is this category of terrorist for whom Congress — at the Supreme Court’s urging — has designed a system of military detention and trial. That system is consistent with the laws of war which, contrary to the attorney general’s suggestion, have always been the “rule of law” applicable in wartime.

Secondly, if there were doubt about the effectiveness of the civilian court, Abdulmutallab’s guilty plea would do nothing to clarify it, let alone “remove” it. Abdulmutallab committed his act of war, or “crime” if you prefer, in front of nearly 300 witnesses. His conviction was never realistically in doubt, which is clearly why he pleaded guilty. This is not a case in which a prosecutor needed a confession or accomplice testimony; this was what we in the biz call a slam-dunk.

The issue with Abdulmutallab was never whether you could get him convicted and given a life-sentence; the issue was whether handling his case under civilian due process rules maximized the government’s opportunity to interrogate him and use him as an intelligence source. Manifestly, it did not.

An enemy combatant may be detained indefinitely, and it is not necessary to give him either Miranda warnings or the assistance of counsel during interrogation. Holder says making Abdulmutallab a civilian case allowed agents to obtain “actionable intelligence.” The pertinent question, however, is not whether we got some quantum of information from him but whether we got the most information we could have gotten.

Under civilian due process rules, Abdulmutallab’s questioning was very short, and FBI director Bob Mueller conceded that he invoked his right to remain silent and to counsel as soon as agents advised him of the Miranda rights. That he may have resumed providing information at some later point, in an effort to pursue a more favorable plea deal, is not a point in Holder’s favor: It means that there was needless delay in getting important information; that we may not have gotten all of his information; and that the immediate civilian prosecution gave him negotiating leverage he would not have had if he’d been treated as an enemy combatant rather than a defendant.

Moreover, as I argued at the time, let us grant that the president won the election and that he was committed to reinstating civilian prosecution as our default approach to dealing with captured enemy combatants. There was still no reason why the civilian prosecution had to happen immediately. Abdulmutallab could have been detained for months or years as an enemy combatant, interrogated very extensively until his useful information (particularly about al Qaeda in Yemen) was exhausted, and then turned over to the civilian system for trial — just like Jose Padilla, among others, was. Doing that would have posed no risk for the ultimate civilian trial because, again, Abdulmutallab’s case was straightforward and did not require confession evidence — even if his post-apprehension statements had been suppressed by the civilian judge, he would easily have been convicted based on the eyewitness testimony. That is, the administration could have gotten all the available intelligence by using the military detention system and then still tried him in a civilian court in satisfaction of its political commitment to civilian due process.

Finally, the attorney general stressed the fact that Abdulmutallab pled guilty to all eight counts, as if that crucially adds to our consideration of whether all doubt has been removed about the effectiveness of civilian prosecution. Shall we then take Holder to be implying that the fact that Ahmed Ghailani was acquitted on 284 of the 285 counts at his civilian trial raises grave doubt about the effectiveness of the civilian system? I don’t see how the attorney general gets to have it both ways.

The guilty plea and the virtual certainty of a life sentence for this atrocious terrorist is an excellent result — one that Mr. Holder is right to celebrate, that we should all celebrate. But it is not a victory, much less a dispositive victory, in the political debate over how we should be processing war criminals. There was no reason for the attorney general to politicize this law enforcement success … other than that politicizing law enforcement is the only way he knows. 

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