Politics & Policy

A Mistake, Not a Precedent

We need not repeat the mistakes of Reid with Abdulmutallab.

Cooking the books on the number of terrorists convicted in the civilian-justice system hasn’t worked for the Obama administration. So now we’re on to the next red herring: the civilian prosecution of shoe-bomber Richard Reid. Once again, the Obama team has learned the wrong lesson from the past while setting the wrong course for the future.

On Dec. 22, 2001, while American Airlines Flight 63 from Paris was cruising toward the United States, Reid attempted to detonate explosives concealed in his shoes. He was subdued by passengers and crew. According to Politico’s Mike Allen, who has reviewed the court records, Reid was given Miranda warnings five minutes after being taken into custody by Massachusetts state police. FBI agents did not get into the act until about four hours later, and they Mirandized him too. Within a month he was indicted for attempting to blow up the plane and kill everyone aboard. In short order, he pleaded guilty and was sentenced to life imprisonment.

#ad#This, Obama’s defenders now claim, shows that the Bush administration handled a perfectly analogous case in the same way the present administration handled the case of Umar Farouk Abdulmutallab. Therefore, the argument goes, conservatives’ criticism of how Obama has treated the would-be Christmas bomber is a shameful episode of politicizing our national security.

The comparison is flawed: The factual contexts of these two incidents are different in important ways. More important: We made mistakes in the Reid case, and it would be destructive to proceed as though having made an error in the past obliges us to repeat that error in the future.

When Reid tried to blow up his airliner, 9/11 had just happened. We had not spent eight years grappling with the question of how international terrorists who carry out attacks in the United States should be dealt with. It is important to remember that there was no military-commission system in place when Reid was captured. President Bush had issued the executive order authorizing the Defense Department to set up the system, but that had not been done yet. It wasn’t ready until March 2002.

#page#The criminal-justice system was the only game in town for an administration determined to go ahead with a case. But we should not have gone ahead with a case at that point. We should simply have detained Reid as an enemy combatant and interrogated him. But we didn’t do that. That was a mistake. A mistake need not be a binding precedent. Better to treat it as something you learn from and try not to repeat.

There were a few other things going on in December 2001 that go a long way toward explaining why Reid’s legal case was not exactly front-burner material.

As we were digging out from 9/11, and still sifting remains out of the rubble, U.S. law-enforcement and intelligence agents were dealing with three potentially catastrophic problems.

#ad#First, there was still very strong reason to believe that a second wave of attacks was imminent. Reid’s attempt strengthened these suspicions. In contrast to today’s relative calm, the country was on the direst kind of war footing: in fear of a raft of new domestic attacks only weeks after a strike deadlier than Pearl Harbor. In exigent circumstances, you tend to go with what you know, because you don’t have the luxury of time to think through something better.

Second, although no one seems to remember this now, the anthrax attacks had just happened. Again, they fortified the sense that the next mass-murder attack was just around the corner. In December 2001, it was all hands on deck to pore over available intelligence reports, look for patterns, and figure out where the next hit might come. Forging a new enforcement paradigm for the litigation of terrorism cases was not a priority.

That brings us to a third point Democrats would prefer to forget: “The Wall,” the internal regulations adopted by the Clinton Justice Department in 1995, had made it practically impossible for intelligence agents to compare notes with criminal investigators and prosecutors. Indeed, the Wall prevented the apprehension of two of the 9/11 terrorists, a dereliction that blew any chance to foil the plot.

But that wasn’t the half of the challenge. When the Wall was dismantled after 9/11, at the onset of war and the emergency conditions that obtained, our sparse investigative and intelligence resources were taxed not only with processing the torrent of new information that was coming in — they also had to go back and do massive reconstruction. They had to figure out what they knew collectively, because for six years the right hand had not been allowed to know what the left hand was doing. And we’re not talking about just any six-year period — we’re talking about the period during which al-Qaeda grew and evolved into the menace it had become by September 2001.

The Wall was also a mistake, one that cost lives. I don’t hear anyone in the Obama administration saying we need to regard it as a precedent that binds our hands today.

Let’s take a step back and get some perspective on the overarching situation and how the Reid and Abdulmutallab incidents fit into their time.

By December 2001, it was already clear that President Bush was moving us away from the Clinton approach of using the civilian courts as the point of the counterterrorism spear. He had invaded Afghanistan. The announcement of the Bush Doctrine suggested that there would be more military engagements to come. We were already detaining many suspected al-Qaeda players and facilitators as enemy combatants. We were already starting to prioritize intelligence collection over prosecution. Soon, that approach would be extended to enemy combatants captured domestically in the cases of Jose Padilla and Ali Saleh al-Marri.

#page#Such transitions are never clean. Mistakes are made, and there are inconsistencies in treatment. This is a fact of life in crisis. No one thought about the implications of how Reid was being handled. He pleaded guilty and was promptly sentenced to life imprisonment. It happened so fast, and there was so much else going on, that — until now — his case faded from memory.

But Bush’s trajectory was unmistakable. We were moving away from criminal-justice norms and toward a framework in which intelligence gathering was paramount.

#ad#The new approach, which protected the nation from a reprise of 9/11 for years, was widely lauded at the time. As I recount in a new pamphlet in the Encounter Broadsides series, one big fan was a Washington lawyer named Eric Holder. In 2002, Holder

admonished CNN that “we are in the middle of a war,” and thus that captured terrorists should be detained without trial as “combatants.” He explained that under governing “precedent,” we could “detain these people until the war is over.” And Holder was emphatic in rejecting the claim that al Qaeda had Geneva Convention rights: “One of the things we clearly want to do . . . is to have an ability to interrogate [terrorists] and find out what their future plans might be, where other cells are located.” Terrorists, he elaborated, “are not, in fact, people entitled to the protection of the Geneva Convention.”

Now, contrast the Abdulmutallab incident in its historical context. Obama campaigned on returning the country to the Clinton model. Now, he is doing just that — though not as quickly as he’d have liked. He is winding down military operations, purging the rhetoric of warfare, investigating the CIA, and elevating the FBI to a lead position, even in overseas counterterrorism — once the domain of intelligence, not law enforcement. Obama’s trajectory is unmistakable too.

We are not in a domestic-threat atmosphere as dire as we were in 2001 (though that could change in a hurry). We have had nine years to think about how to handle the Islamist threat. Unlike the uncharted legal terrain Bush was acting in, today’s environment is better defined in that the Supreme Court has reaffirmed the validity of military detention without trial, even for American citizens (the 2004 Hamdi case) while Congress has enacted three major pieces of combatant legislation (in 2005, 2006, and 2009) that have put detention without trial and military commissions on very sound legal footing.

Against this backdrop, it is absurd to paint the handling of the Abdulmutallab case as Obama following a Bush precedent. For Bush, Reid was an aberration. For Obama, Abdulmutallab is a major statement. Obama is doing the reverse of what Bush was doing: He is shifting the paradigm in the other direction. The decision to treat Abdulmutallab as a criminal defendant rather than an enemy combatant was a calculated turning back of the clock. What the approach of the 1990s portends, though, is the results of the 1990s, when prosecution was the whole ballgame and intelligence gathering was fettered and subordinated.

In 2001, when the main threat to us was located in Afghanistan, we had boots on the ground there. We were taking hundreds of prisoners, interrogating them, and building a solid intelligence base.

In 2009, one of the main threats to us comes from Yemen. We have no boots or ears on the ground there and must contend with a Yemeni government highly sympathetic to the enemy.

In those dire circumstances, Abdulmuttalab fell into our laps. He is a committed terrorist who, by all accounts, is very intelligent, was in Yemen for four months, knows lots of the players, and is clued in on the terror network’s ongoing plans. In short, he’s the kind of dream source an intelligence-starved agent desperately needs and would want to grill for months.

Obama, instead, had him Mirandized and lawyered up. That was extraordinarily irresponsible. Pointing to Richard Reid is not a validation of recklessness. It is a demonstration that the president doesn’t get it.

National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).

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