The Corner

Who Made the Decision on Abdulmutallab?

A few weeks ago, Dana Perino and I expressed doubt that the White House had given any serious thought to treating Umar Farouk Abdulmutallab as an enemy combatant who could be interrogated without access to a lawyer, without Miranda warnings, and without the right to remain silent. We were skeptical because the rapid turnaround of less than 24 hours between Abdulmutallab’s arrest and the Justice Department’s announcement that he would be treated like a common criminal — with all the rights of a U.S. citizen — provided far too little time to assess his potential value as a source of intelligence about future attacks. In startling admissions at today’s congressional hearings, Dennis Blair, director of national intelligence, and Michael Leiter, director of the National Counterterrorism Center, confirmed that they were never even consulted about the decision. Director Blair, to his credit, testified that it was a mistake to treat Abdumutallab like a common criminal, rather than a terrorist detainee, and lose the opportunity to interrogate him.

The Justice Department, with the White House’s explicit or tacit blessing, has won a major turf battle with the intelligence services. The Obama White House is so committed to the law-enforcement approach to combating terrorism — the very approach that the bipartisan 9/11 Commission said was a major reason the 9/11 plot went undetected until it was too late — that the possibility of interrogating Abdulmutallab to learn whether he had information that could help prevent another attack was seen as, at best, a secondary consideration and, at worst, wholly irrelevant. The war on terror, at least when it comes to threats to the homeland, has been turned over completely to the Justice Department, which is far more focused on punishment and apprehension after the fact than on preventing attacks before they happen. This is not a criticism of the Justice Department; it is merely a recognition that the legal tools at its disposal are constrained by the protections our Constitution and laws provide criminal defendants, who have a right to a fair trial. The intelligence services are not in the trial-by-jury business; they’re in the stop-terrorists-before-they-can-kill-us business, and accordingly have a far more flexible set of tools available to them to interrogate terrorists and learn about future attacks.

Director Blair testified that the decision to charge Abdulmutallab was made “on the scene.” One can imagine the following scenario unfolding at the Justice Department on Christmas Day: Abdulmutallab was arrested on the plane; the arresting officers or FBI agents contacted a (possibly junior) federal prosecutor at the local U.S. attorney’s office for Detroit, who was tasked with taking incoming calls during the holiday; the prosecutor informed his superiors, including the U.S. attorney, who in turn did or did not inform their superiors and colleagues at Justice Department headquarters in Washington, including possibly Deputy Attorney General David Odgen (who was a short-timer anyway, having announced in early December that he was planning to resign in the new year) and Attorney General Eric Holder or their senior staff, all of whom were out of the office that day. In a typical criminal case, the Justice Department can authorize bringing charges against the defendant at some level in this review process without consulting with anyone outside the department. In fact, the U.S. attorney in Detroit may have brought charges on her own authority.

In other words, the Justice Department treated the failed terrorist attack like a typical criminal law-enforcement case and did not bother to consult with anyone outside the department, including the intelligence services and maybe even the White House, about whether Abdulmutallab should be interrogated as an enemy combatant. It may have all been decided by the prosecutor taking emergency calls on Christmas and his or her boss in Detroit, without much, if any, input from headquarters or the White House.

If this scenario or some variation of it occurred, we should all be very worried. Either the White House and Justice Department have set up a system that deliberately cuts the intelligence services out of the loop on interrogating captured terrorists, or it was a big screw-up and someone failed to alert the right people up the chain before running off and charging Abdulmutallab as a criminal. I’m not sure which explanation is more frightening. If this is what the White House and Justice Department intended, then their system excludes the people we should most want in the room when deciding whether and how to interrogate captured terrorists — the intelligence professionals responsible for stopping the next attack before it happens. If it was just a screw-up, then this is the legal equivalent of the debacle in intelligence gathering and sharing and airport security that allowed Abdulmutallab to get on the plane in the first place. Either way, the system ain’t working.

Congress has rightly demanded answers and accountability about how our intelligence services and airport security failed to stop Abdulmutallab from boarding the plane. That’s why Director Blair and Director Leiter were on the Hill today. Congress should demand the same from the White House and Justice Department, and ask how it makes any sense to deny, by design or blunder, our intelligence services from having access to captured terrorists, potentially the most valuable source of intelligence to stop future attacks.

– Bill Burck is a former federal prosecutor and deputy counsel to Pres. George W. Bush.

UPDATE:

I’m hearing from intel and WH people that the WH went berserk over the testimony and forced Blair to issue statement of clarification pasted below.  Note that Blair does not “clarify” that he wasn’t consulted, only that the FBI got some info before the underwear bomber lawyered up.  Intel/DoJ/WH world is abuzz about all of this…

STATEMENT BY THE DIRECTOR OF NATIONAL INTELLIGENCEMR. DENNIS C. BLAIR January 20, 2010

My remarks today before the Senate Committee on Homeland Security and Governmental Affairs have been misconstrued. The FBI interrogated Umar Farouk Abdulmutallab when they took him into custody. They received important intelligence at that time, drawing on the FBI’s expertise in interrogation that will be available in the HIG once it is fully operational.

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