The Corner

What Would Bush Do?

The Obama administration says it was justified in Mirandizing Umar Farouk Abdulmutallab because the Bush administration did the same thing with Richard Reid, the shoe bomber, eight years prior.

But the facts tell quite a different story. The Bush administration would not have handled Abdulmutallab the way the Obama administration did. Instead, it would have prioritized gathering intelligence from Abdulmutallab upon his capture, and then would have sent him to either the civilian or the military system for trial.

First, it would have gathered its entire national-security team, not just the Justice Department, to come to a consensus on whether Abdulmutallab might have significant intelligence and whether that could be better obtained by designating him as an enemy combatant or a criminal defendant. If they needed time to figure this out, they could have held him as a material witness without charging him with a crime. If the consensus was that Abdulmutallab would be more open to divulging information if he were treated as a criminal defendant, then he would have been charged in the civilian system, just as has happened now. If the consensus instead was that his interrogation as an enemy combatant, without a right to remain silent and without the presence of a lawyer, would be more fruitful, he would have been designated as an enemy combatant.

Second, assuming Abdulmutallab had been designated as an enemy combatant, the interrogators would have thoroughly interrogated him to learn if he had information that could prevent a future attack.

Third, once they were satisfied that he had no additional intelligence to provide, he would have been transferred for prosecution to either the civilian or the military system. The Bush administration would have proved his guilt using the 200 witnesses on the plane and the bomb in his underwear, not his un-Mirandized statements to interrogators (which would have been inadmissible).

But don’t take our word for it. Let’s briefly review what the Bush administration actually did after 9/11.

Congress passed the Authorization for the Use of Military Force on Sept. 18, 2001, authorizing President Bush to use “all necessary and appropriate force against those nations, organizations, or persons” who perpetrated the attack. With this congressional authority and his own authority as commander-in-chief, President Bush issued a military order on Nov. 13, 2001, authorizing detentions of non-citizen members of al-Qaeda as unlawful enemy combatants.

Richard Reid’s failed attack occurred on Dec. 22, 2001, and he was arrested the same day. Reid was charged in a criminal complaint a few days later. Richard Reid is not a U.S. citizen (he’s a citizen of the U.K.). As such, he could have been subject to President Bush’s military order. In late December 2001, however, there were no military commissions in operation, Guantanamo was not yet open to hold detainees, and no one was being held in the U.S. as an enemy combatant. By contrast, there was a well-established civilian system to handle Reid, and that system had clear rules mandated by the Supreme Court on how to treat criminal defendants, including reading them their Miranda rights shortly after arrest and respecting their right to remain silent.

Flash forward to May 8, 2002, about five months after Reid’s arrest. This was the day Jose Padilla, a U.S. citizen believed to be a member of al-Qaeda, was arrested in Chicago. Guantanamo had been open for about four months and held numerous unlawful enemy combatants, non–U.S. citizens who’d been captured in the war in Afghanistan. The Defense Department had also issued regulations in March 2002 on how military tribunals would operate.

Contrary to popular mythology, Padilla was no garden-variety suspected terrorist. He was believed to be an agent of al-Qaeda and, specifically, of Khalid Sheikh Muhammad. As a U.S. citizen, he could evade detection even more easily than did the 19 terrorists who perpetrated 9/11. Padilla was detained without criminal charges for a month on what is called a “material witness” warrant. The government believed he had evidence about a conspiracy to explode a “dirty bomb” in a U.S. city — an attack that, if successful, could kill or injure thousands — but might flee before he could provide this evidence to the grand jury that was investigating the 9/11 attacks.

The Bush administration used that month to decide what to do with Padilla. It had two obvious options and one riskier option. The two obvious choices were to free Padilla after he had testified to the grand jury, and to charge him as a criminal defendant in civilian court. Neither of these would have provoked protestations from the left. The riskier choice was to remove him from the civilian system and designate him as an enemy combatant.

The Bush administration chose the riskier option. On June 9, 2002, President Bush designated Padilla as an enemy combatant and ordered him transferred to military custody. Bush did not do this in an attempt to try Padilla in a military tribunal. As a U.S. citizen, after all, Padilla was ineligible for trial by military tribunal.

The purpose was to prevent Padilla from returning to the fight to assist al-Qaeda, and to gather intelligence from Padilla. In military custody as an enemy combatant, Padilla could be interrogated without his consent and without his lawyer’s involvement. The only way to get him to talk as a criminal defendant would have been to cut him a plea deal for a lower sentence, and he would have had the right to stop talking any time he wished.

Padilla’s lawyers filed lawsuits challenging the government’s power to hold him as an enemy combatant. Some years later, when the courts had sorted out these suits and others, at least two things had become clear. First, the president has authority to hold suspected terrorists, even U.S. citizens, as enemy combatants for the duration of a conflict. Second, Padilla was properly detained as an enemy combatant.

All told, Padilla was held as an enemy combatant in a military brig in South Carolina for three and a half years. He was transferred to the civilian system for trial in Miami in early 2006. Padilla was convicted in 2007 and sentenced in 2008.

So, the Bush administration’s treatment of Padilla had three distinct phases: He was held on a material-witness warrant, designated as an enemy combat for the purpose of interrogation, and transferred to the civilian system for trial on a distinct set of charges.

So far, the federal courts have upheld this phased approach, which was hardly unique to Padilla’s case. This process was used on U.S. citizens John Walker Lindh (detained as an enemy combatant and then sent to the criminal system) and Yaser Hamdi (detained as an enemy combatant and then released to Saudi Arabia on condition that he give up his U.S. citizenship), though without the first phase, because both men were captured in Afghanistan and immediately placed in military custody. A similar process was also used on a non-citizen named Ali al-Marri, who was first held in the criminal system, then transferred to military custody as an enemy combatant by the Bush administration, and then sent back by the Obama administration to the civilian system (where he pleaded guilty to terrorism charges, admitting that he received training at terrorist camps and that he was an al-Qaeda agent sent to the U.S. by KSM).

Perhaps most important, the phased approach was used on hundreds of suspected terrorists held at Guantanamo, including KSM and others, though the final phase involved bringing the suspects before military commissions, not civilian juries. During the intelligence-gathering phase, KSM and other detainees provided an enormous amount of vital intelligence that helped prevent attacks and helped us understand al-Qaeda and its operations, according to former directors of the CIA. This has not been disputed by the Obama administration.

The Obama administration and its defenders fall back on the fact that the Bush administration chose not to designate all the suspected terrorists it captured as enemy combatants. But they neglect to mention that the Bush administration had a well-defined and active process — that included the military, the intelligence services, and law enforcement — for deciding which suspects should be sent to which system. The Obama administration, by contrast, sent a non-citizen who’d been caught red-handed trying to blow up a plane — and who declared his allegiance to al-Qaeda before being Mirandized — to the civilian system without even consulting the intelligence services.

In the wake of 9/11, the Bush administration took an aggressive approach to fighting the War on Terror. In many instances the courts pushed back, but at the end of the day, the law on the books is that a suspected al-Qaeda-affiliated terrorist who is captured in the United States may be detained as an enemy combatant for purposes of interrogation. Such a detainee then may be transferred to the civilian or, if the suspect is a non-citizen, the military system for prosecution. The suspected terrorist does have a limited right to have a lawyer assist him in challenging his detention as an enemy combatant, but there is no right to have a lawyer during interrogation, and there is no right to remain silent.

 – Bill Burck is a former federal prosecutor and deputy counsel to President Bush. Dana M. Perino is former press secretary to Pres. George W. Bush.

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