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.
As for the word “initially,” it’s true that the Bush administration at first detained José Padilla and Ali Saleh Kalah al-Marri using federal criminal laws — but it then transferred them into military custody. Both men were held in military custody for years before they were turned over to the criminal-justice system. A federal court of appeals ruled that the federal government has the power to hold Padilla and al-Marri without charging them as criminal defendants. So the Obama Justice Department has precedent to transfer the underwear bomber to military custody; it just does not want to use it.
Al Qaeda terrorists such as Richard Reid, Zacarias Moussaoui and others have all been prosecuted in federal court, and the arrest and charging of Umar Farouk Abdulmutallab was handled no differently. Those who now argue that a different action should have been taken in this case were notably silent when dozens of terrorists were successfully prosecuted in federal court by the previous administration.
This is more obfuscation. President Bush authorized detaining terrorists as enemy combatants in the War on Terror in November 2001, about two months after the 9/11 attacks. Moussaoui was arrested in August 2001, before the 9/11 attacks had even happened. Reid was arrested in December 2001, only a month or so after President Bush authorized detaining terrorists as enemy combatants and before the necessary legal and logistical infrastructure was in place. Starting in 2002, once this infrastructure was in place at Guantanamo and elsewhere, numerous enemy combatants were detained by the Bush administration, much to the chagrin of many people who are now members of the Obama administration, who criticized Guantanamo as antithetical to American values.
There are good arguments that the Bush administration made a mistake in not designating Reid and Moussaoui as enemy combatants. It’s hard to know eight years later, because it’s possible that intelligence professionals decided at the time that neither man had valuable intelligence to divulge. This contrasts with what the Justice Department has said about Abdulmutallab — that he does have valuable information.
In any event, it is insufficient to justify one’s own actions by saying that your predecessor did the same thing. It’s particularly strange, and unconvincing, to hear the Obama administration use this non sequitur in reference to the Bush administration, from which it has taken pains to distance itself on national-security matters.
The Department of Justice, working with the intelligence community and the President’s national security team, is committed to using every tool available to defeat terrorists and keep the American people safe.
Apparently “every tool” does not include enhanced interrogation techniques, such as those used in the CIA program and advocated by, among others, Senator-elect Scott Brown. It is true that these techniques are no longer “available” — but that’s only because President Obama banned their use when he took office. Former CIA director Michael Hayden has said that the majority of intelligence we have about al-Qaeda, its leadership structure, and its operations came from the use of enhanced interrogation techniques in the CIA program. This has not swayed the Obama administration’s views on the matter, however.
It will always be a top priority in these cases to obtain intelligence that can be used in the fight against Al Qaeda around the world. We will be pragmatic, not ideological, in that fight, and we will let results, not rhetoric, guide our actions.
This is rhetoric, so we will let it speak for itself.
In the hours immediately after Abdulmutallab allegedly attempted to detonate an explosive device on board a Northwest Airlines flight, FBI agents who responded to the scene interrogated him and obtained intelligence that has already proved useful in the fight against Al Qaeda. It was only later that day, after the interrogation had already yielded intelligence, that he was read his Miranda rights.
This is an astounding admission, and one we suspect the Justice Department may re-think. So, the FBI (which is part of the Justice Department) decided to Mirandize Abdulmutallab and effectively shut him down once it realized that he did, in fact, have useful information to provide? The Justice Department offers no explanation as to why the agents would tell Abdulmutallab that he didn’t have to talk to them any longer and could get a lawyer — at the precise moment when they realized he did, indeed, have valuable information about al-Qaeda and its plans. But from the Justice Department’s perspective, there’s nothing to explain; the agents followed the manual, advised their supervisors of the situation, and followed their instructions.
This past weekend, the Associated Press released an eye-opening and thoroughly distressing account of Abdulmutallab’s arrest and his first 24 hours in custody. The piece gave as its sources unnamed government officials, presumably FBI agents and Justice Department officials. If the story is accurate, what happened was standard operating procedure from a law-enforcement perspective, but malpractice from an intelligence-gathering perspective.
Abdulmutallab, in pain and frantic, apparently provided a lot of unprompted information to the Customs and Border Protection agents who arrested him and to the doctor who treated him. FBI agents began interviewing him about an hour and a half after he arrived at the hospital where he was receiving treatment. They decided, correctly, not to Mirandize him at first because of the possibility that he knew about other imminent attacks. They interviewed him for only 50 minutes, however, and then decided to let him rest because of his injuries and the effects of the medication.
The agents’ supervisors in Washington, D.C., then decided to bring in a new team of agents because the supervisors were concerned that the failure to Mirandize Abdulmutallab had “tainted” the first team, and anything he subsequently told them might not be admissible at trial. The new, “clean” team showed up five hours after the first team had ended its interview and, as instructed by headquarters, Mirandized a rested and treated Abdulmutallab. Once he was advised of his rights, predictably he clammed up.
Other than the first interview, the FBI’s focus was on ensuring that any statements obtained from Abdulmutallab could be used at trial. Intelligence gathering was, if thought of at all, considered a sideshow. It is deeply unsettling, but not at all surprising, that the FBI did not consult with counterterrorism experts in other agencies. The FBI was not about to invite other agencies onto its turf. Add to this the fact that FBI Director Robert Mueller has long expressed his discomfort with the more aggressive interrogation techniques used by the intelligence services, particularly the CIA, and the failure to consult becomes almost predictable.
After the Department informed the President’s national security team about its planned course of action, Abdulmutallab was charged in criminal court.
The Justice Department is confirming that it did not consult with the intelligence services and maybe even the White House before deciding to treat Abdulmutallab as a criminal defendant, but it does so with some subtle obfuscation.
Notice that the Justice Department “informed” the national-security team. This would include, presumably, Director of National Intelligence Dennis Blair, Director of the National Counterterrorism Center Michael Leiter, and Secretary of Homeland Security Janet Napolitano — all of whom testified that they were not “consulted” on the decision. FBI Director Mueller said on Monday, January 25, that he was not consulted either.
This is like the way parents “inform” their children that it’s bedtime. It’s not really a request for their views on the matter. Apparently, the views of intelligence professionals in other agencies charged with the responsibility of preventing future attacks don’t count for much with the Justice Department, at least when it is dealing with a terrorist apprehended on U.S. soil.
Trying Abdulmutallab in federal court does not prevent us from obtaining additional intelligence from him. He has already provided intelligence, and we will continue to work to gather intelligence from him, as the Department has done repeatedly in past cases.
Let’s make a deal, Umar! The Justice Department is signaling that it is going to try to cut a deal with Abdulmutallab to get him to talk. As one of us has discussed before, this will likely include promising him less prison time. It will also be a long, drawn-out process, and even if he eventually agrees to talk, whatever information he has could have become stale.
Moreover, putting aside the dubious assumption that a man willing to kill himself and 300 innocent people in the name of jihad can be enticed by the prospect of early release from prison, we wonder which lucky administration official will be tasked with going in front of the nation to explain that we had to let him go early so he would talk to us. Any takers?
Most recently, David Headley, who has been indicted in Chicago for helping plan the 2008 Mumbai attacks, has given us information of enormous intelligence value.
So the Justice Department has cut a deal with Headley to get him to talk. It will be interesting to see how much prison time will be shaved off for his cooperation. We’ll find out after he pleads guilty and is sentenced. Headley’s deal might give us a preview of how much time the Justice Department is contemplating for Abdulmutallab: 50 years? 20? Two?
Furthermore, neither detaining Abdulmutallab under the laws of war [n]or referring him for prosecution in military commissions would force him to divulge intelligence or necessarily prevent him from obtaining an attorney.
The department’s most clever obfuscation. Of course Abdulmutallab cannot be “forced” to divulge information. There is no guarantee that he would provide information even if he were subjected to the most coercive techniques used in the CIA program. In that sense, it is correct to say, and quite beside the point, that he cannot be “forced” to do anything if he successfully resists interrogation.
The Justice Department tries to obscure the fact that we would not need to obtain his or his lawyer’s permission to interrogate him if he had been designated as an enemy combatant, at which point the interrogation techniques of the Army Field Manual — some of which are more coercive than the techniques the police and FBI can use on criminal defendants — would have been on the table. Because of the Justice Department’s unilateral decision to charge him as a criminal defendant, however, we do need to seek and obtain his and his lawyer’s permission, and if he decides at any point to stop talking, we are required to obey his wishes and leave him alone.
The Justice Department’s decision to treat Abdulmutallab as a criminal defendant empowered him with constitutional protections that may come at the expense of our national security. Unless President Obama overrules Attorney General Holder and designates Abdulmutallab as an enemy combatant, any hope of learning what he knows about future attacks will depend on how effective the Justice Department’s dealmakers, rather than its interrogators, are at their jobs.
– 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.