During his rounds on the morning news shows yesterday, John Brennan, President Obama’s top counterterrorism expert, justified treating the underwear bomber as a criminal with all the rights of a U.S. citizen, rather than an enemy combatant with no right to remain silent or demand a lawyer or a civil trial, by arguing that the government can offer him a plea bargain in exchange for his cooperation. In other words, just like we give deals to drug smugglers or mobsters to give up information on bigger fish in their criminal enterprises, we can do the same with Abdulmutallab. But once again, the Obama administration doesn’t seem to get it. Had Abdulmutallab been designated as an enemy combatant from the start, we would not have had to offer him anything at all in exchange for the information he possesses. He could have been interrogated immediately by professionals without Miranda warnings, without a lawyer, and against his will. Given that he appears to have been willing to talk for awhile before he demanded a lawyer, it is a fair assumption that he would have continued talking if he didn’t have the option of lawyering up.

Implicit in Brennan’s justification is the notion that the government can give Abdulmutallab something every criminal defendant wants — the opportunity for early release. And in most cases, cooperating defendants get just that, and judges reward them by reducing their sentences in exchange for their cooperation against other criminals. Presumably, then, the White House has authorized the Department of Justice to begin negotiating with Abdulmutallab’s lawyer to find out what kind of deal he wants. This means that the Obama administration may be contemplating recommending to a judge that Abdulmutallab get a reduced sentence, or perhaps no sentence at all. Yes, folks, they may actually be thinking about setting this terrorist free at some point.

So, here are the perverse incentives for terrorists who come to this country to kill us — assuming you don’t succeed in blowing yourself up and are captured, you will have a right to a lawyer, a right to remain silent, a right to trial by a jury of your “peers,” and the possibility of early release if you cooperate with authorities. We are a generous nation indeed.

– Bill Burck is a former federal prosecutor and deputy counsel to President Bush.