By Andrew C. McCarthy
http://www.nationalreview.com/
February 5, 2010 12:01 A.M.
Attorney General Eric Holder has responded to criticism of the Obama administration’s handling of the Christmas bomber, Umar Farouk Abdulmutallab, with an “all’s well that ends well” letter to Senate minority leader Mitch McConnell.Holder’s missive vigorously defends what he says was his decision to treat Abdulmutallab as a criminal defendant, to impose peacetime law-enforcement protocols on his interrogation, and to charge him in civilian court. He argues that the use of the criminal-justice system has been vindicated because the terrorist is talking again (thanks to whatever undisclosed deal the Justice Department had to make with him). The letter contains various misleading assertions but is a fair statement of Holder’s philosophy — and it is good to have such a statement, given that the DOJ’s practice under his leadership too often has been to stonewall.
The fundamental problem with the attorney general’s line of argument is that it unfolds as though there were no war and no president. Abdulmutallab, Holder believes, is just like any other person arrested in the United States: When an arrest happens, government officials automatically employ “long-established and publicly known policies and practices.” It does not matter who sent the person or what he was arrested trying to do. Miranda warnings are given, lawyers are interposed, charges are filed, and trials are conducted. Even if the nation is at war, we don’t inquire into whether the arrested person is an operative dispatched here by hostile forces to commit mass murder. We don’t concern ourselves with whether he knows about other people plotting the same thing. All that matters to Holder is that we have our procedures, and they must be followed.
But they don’t have to be followed. FDR didn’t follow them with the German saboteurs in 1942. The train doesn’t speed down the track on autopilot, propelled by nothing but remorseless procedures — there is someone driving it. That someone is the president, and he doesn’t get to vote “present.”
Holder points out that the FBI followed its regular protocols. Of course it did — it’s not the job of FBI agents to do anything but follow their regular procedures, unless they are ordered to do otherwise. The attorney general protests that no other agency objected to his treating the case like any other case — an intriguing assertion, given that the heads of all the relevant agencies have just testified in Congress that they weren’t even consulted. In any event, the power of the executive branch does not well up from the bottom. All executive power is reposed in the president. FBI agents, the executive agencies, and Holder himself merely implement the president’s policies. If alien enemy combatants get Miranda warnings and trials, it’s not because FBI and DOJ procedures dictate that result. It’s because the president has decided it should be done that way.
Holder contends that the policies and practices used in Abdulmutallab’s case “were not criticized when employed by previous administrations.” That’s not true. Many people disagreed vigorously with, for example, President Bush’s decision to treat Zacarias Moussaoui as an ordinary civilian defendant. Later events have validated that critique. Indeed, the whole reason for fighting the conflict militarily after 9/11 — and for implementing a military-commission system for handling prisoners — was the patent ineffectiveness of relying upon law-enforcement policies and practices to protect the nation from an enemy who is not committing crimes but making war.
Oddly, the attorney general asserts that since 9/11 the practice “followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States.” (Emphasis in original.) His own letter later shows that to be untrue: Jose Padilla (who, unlike Abdulmutallab, is an American citizen) was designated an enemy combatant and held without trial after being arrested inside the United States; so was Ali al-Marri. Ultimately, both were prosecuted in the civilian system — but only years later, after the intelligence community had ample opportunity to exhaust their capacity to provide useful information.
The decision to detain them as war criminals was controversial, but Holder acts as if all the criticism were on one side of the ledger. In the event, left-wing lawyers were agitated, but the public was supportive. The attorney general trumpets the Second Circuit decision invalidating Padilla’s detention, while he calls the Fourth Circuit ruling that upheld al-Marri’s detention “fractured.” In point of fact, the Second Circuit’s 2-1 ruling was equally fractured — and, though Holder doesn’t see fit to mention it, the ruling was reversed by the Supreme Court on jurisdictional grounds. What’s more, while Holder is quick to invoke the name of his predecessor, Michael Mukasey, when he thinks doing so helps his cause, he neglects to mention that Mukasey’s scholarly opinion as a district-court judge forcefully affirmed the commander-in-chief’s wartime authority to detain Padilla.
In any case, all of Holder’s spin on the court precedents is a diversion: We have a president, and presidents are not captives of court precedents when executing their own constitutional responsibilities. Holder’s takeaway from the Padilla and al-Marri cases is that military detention of a person arrested inside the United States “raised serious statutory and constitutional questions in the courts regarding the lawfulness of the government’s actions and spawned lengthy litigation.” So what? The courts are not the commander-in-chief, they are not responsible for the conduct of war, and they are not infallible.
The courts, moreover, did not even purport to settle these matters in a way that ultimately impedes military detention and trial. Indeed, unnoticed in Holder’s letter are (a) Congress’s several interventions after Padilla and al-Marri to firm up military proceedings, and (b) the courts’ rejection of the claim by Padilla that his detention as an enemy combatant tainted his later civilian prosecution. And as for the attorney general’s concerns about “lengthy litigation,” that’s what we have a Justice Department for. If the CIA had been interrogating Abdulmutallab for the last five weeks while DOJ was digging in to litigate the lawfulness of his detention for the next few years, national security would have been well served. By contrast, our security is imperiled when a wartime commander-in-chief is paralyzed into inaction out of fear that judges may be disturbed and controversy sparked.
Holder also provides a skewed version of recent counterterrorism history: He claims, for example, that terrorists must be permitted to meet with lawyers upon capture, based on the fact that Judge Mukasey denied the Bush administration’s attempt to cut off Padilla’s access to counsel. (When Holder agrees with Mukasey, that’s binding precedent; when Mukasey has gone the other way, Holder passes over in silence.) But that’s not what really happened. Padilla was not designated an enemy combatant when first captured. He was arrested on a material-witness warrant to testify before the grand jury, a civilian process. While that was going on, the Bush administration changed course, designated him an enemy combatant, and transferred him to a military brig. Mukasey had appointed counsel to represent Padilla on the civilian warrant, and — at his own discretion — permitted those lawyers to continue representing Padilla on what became his challenge to his detention as a war prisoner. But Mukasey was very clear that Padilla did not have a right to counsel.
What’s more, Mukasey’s discretionary appointment of counsel did not permit the lawyers to interfere in Padilla’s ongoing interrogation, nor did it prevent the military from imposing strict conditions on Padilla’s meetings with his counsel. As Judge Mukasey wrote, although the Supreme Court has “recognized a Sixth Amendment right against custodial interrogation without access to counsel, the remedy for violation of this right is exclusion of the fruits of the interrogation at a criminal trial. . . . There being no criminal proceeding here, Padilla could not enforce this right now even if he had it.”
Holder also says that “the widespread experience of law enforcement agencies including the FBI is that many defendants will talk and cooperate” after Miranda warnings. What he doesn’t say is that many defendants will not talk — they will remain silent. Of the dozen defendants in the Blind Sheikh case, for example, I believe only one talked, and he gave false exculpatory statements rather than genuine cooperation. None of the 1993 World Trade Center bombers confessed, and some of the conspirators were able to flee because there was not enough evidence to detain them under civilian rules. The bomber of the U.S. embassy in Nairobi confessed — but only after nine days, and only because Kenyan law permitted his detention without trial for two weeks and did not require giving him access to counsel.
It’s ridiculous for Holder to imply that, since a few terrorists have confessed upon being Mirandized, most or all of them are apt to do that — much less that they’re going to do it fast enough for our agencies to acquire actionable intelligence. It’s great that Abdulmutallab is talking now, but what has happened in the last five weeks? Have we been infiltrated by sleeper agents he could have helped us identify? Have terrorists we could have grabbed now scattered? Who knows?
The fact is, most good interrogations of suspects arrested in the criminal-justice system happen days, weeks, or even months after arrest. It is frequently not in a defendant’s interest to speak to the government, especially right after capture. Chances are good that he will not speak when you have to tell him he doesn’t need to cooperate — especially when you have to get him a competent defense lawyer who will tell him he should not cooperate. The valuable information usually flows only after defense counsel has had time to digest the government’s case, has debriefed his client, has decided that it is in the client’s interest to cooperate rather than fight the case, and has advised the client that being truthful is the only way out. That process can take a long time. It can take an even longer time to build the relationship of dependence and trust that yields the most reliable information. That’s fine — indeed, it’s preferable — when it is peacetime and there are no ticking bombs. When the nation is at war with a terror network that has carried out unspeakable atrocities and is actively plotting more of the same, it is irresponsible to let that process run its course if there are other, faster ways to get the information.
The attorney general repeats his Justice Department’s specious talking point that “the Bush administration used the criminal-justice system to convict more than 300 individuals on terrorism-related charges.” That doesn’t mean 300 terrorists. Hopefully, as I’ve urged (here, here, and here), he will tell us where this number comes from. A thorough study by Human Rights First found only 195 — and to get there, it had to count people convicted on all manner of non-terrorism charges. The ACLU, meantime, has put the figure at 39.
Regardless, Holder’s exaggerated figure misses the point: No one is saying that most of these “terrorism-related” cases should not have been tried in the civilian courts, or that the FBI and the U.S. attorney’s offices have not done stellar work prosecuting them. No one is suggesting that we should “remov[e] this highly effective weapon” of civilian prosecution from our “arsenal.” For example, the civilian prosecutions that interrupt terrorist financing (i.e., the cases President Obama wants to cut back on) are critically important if we’re to prevent future attacks.
What is at issue is the subset of terrorism cases that involve actual terrorists carrying out actual terror attacks — the operatives our military kills or detains as war prisoners if it encounters them on the battlefield overseas. It is perverse to give such jihadists more generous rights if they are fortunate enough to get into the United States, where they stand to do the greatest harm to civilians. Protecting civilians is the goal of humanitarian law; in effect, the policy Holder recommends gives the worst offenders the best privileges.
Yes, as Holder recounts, shoe-bomber Richard Reid was Mirandized and given civilian due process. That happened in December 2001, three months before the military-commission system was established. But even if you give the attorney general that one, it was a mistake, not a precedent — and the legal landscape is dramatically different now. Throughout the 2008 campaign, Holder and Obama derided Bush-era counterterrorism policies: Who knew Holder would be citing Bush as an authority by the end of his first year in office?
But President Bush is not in charge anymore. President Obama is. When an al-Qaeda operative, fresh out of the training camps in Yemen, comes into our country trying to commit a massacre — and almost certainly aware of similar, ongoing plots — it’s up to President Obama to decide what to do. It doesn’t matter what Bush did. It doesn’t matter what the FBI’s procedures are. It doesn’t matter that his attorney general wants to use the hamstringing protocols of the civilian system or that other relevant agencies appear not to object. And it doesn’t matter that some judges, academics, and leftists have an aversion to military processes. How to treat that terrorist is the president’s call. Commanders-in-chief don’t get to lay low in the tall grass while their attorneys general dilate on points of procedure.
This president could have designated Abdulmutallab an enemy combatant and ensured that his interrogation proceeded without delay. Instead, he sat on his hands, knowing that meant the wheels of justice would grind: The terrorist would be given a lawyer and told he didn’t have to speak to us; he would very likely refuse to speak for a long time — five weeks as it turned out — while al-Qaeda continued plotting; the criminal case would proceed and complicate the gathering of intelligence. That happened because that is the way Obama chose to proceed. It was a decision, not a fait accompli.
According to the attorney general, any person arrested in the United States, for any reason, is to be advised of his Miranda rights and submitted to civilian prosecution. No exceptions — presumably, not even for the top leaders of the terrorist organization with which we’re at war. That, Holder says, is what the procedures and protocols dictate.
It is one thing for the attorney general to take that view, but the buck stops with President Obama. Is he ready to roll those dice? Apparently so.
— 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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