The Changing National Security Tune

Now, do [terrorists] deserve Miranda rights? Do they deserve to be treated like a shoplifter down the block? Of course not.

President Barack Obama, Interview With 60 Minutes, 23 March 2009

HOLDER: Yes, it seems to me this is an argument that is really consequential. One of the things we clearly want to do with these prisoners is to have an ability to interrogate them and find out what their future plans might be, where other cells are located; under the Geneva Convention that you are really limited in the amount of information that you can elicit from people.

It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war. If, for instance, Mohammed Atta had survived the attack on the World Trade Center, would we now be calling him a prisoner of war? I think not. Should Zacarias Moussaoui be called a prisoner of war? Again, I think not.

And yet, I understand what Secretary Powell is concerned about, and that is we're going to be fighting this war with people who are special forces, not people who are generally in uniform. And if unfortunately they somehow become detained, we would want them to be treated in an appropriate way consistent with the Geneva Convention.

ZAHN: So is the secretary of state walking a fine line here legally? He is not asking that the United States declare these men as prisoners of war right now. He's just saying let's abide by the Geneva Convention in the meantime.

HOLDER: Yes, and I think in a lot of ways that makes sense. I think they clearly do not fit within the prescriptions of the Geneva Convention. You have to remember that after World War II, as these protocols were being developed, there seemed to be widespread agreement that members of the French Resistance would not be considered prisoners of war if they had been captured. That being the case, it's hard for me to see how members of al Qaeda could be considered prisoners of war.

And yet, I understand Secretary Powell's concerns. We want to make sure that our forces, if captured in this or some other conflict, are treated in a humane way. And I think ultimately that's really the decisive factor here. How are people, who are in our custody, going to be treated? And those in Europe and other places who are concerned about the treatment of al Qaeda members should come to Camp X-ray and see how the people are, in fact, being treated.

ZAHN: The administration this morning playing down any discord among its team, but if you could, help us understand how you reconcile this.

HOLDER: . . . I can understand the tensions that exist, but I think the way to resolve it is, in fact, the way Secretary Powell has proposed, which is to say these are not people who are prisoners of war as that has been defined, but who are entitled to, in our own interests, entitled to be treated in a very humane way and almost consistent with all of the dictates of the Geneva Convention.

ZAHN: Final question for you, moving onto the issue of John Walker Lindh, the American Taliban. How much pressure should they put on this man to get information out of him as they interrogate him?

HOLDER: Well, I mean, it's hard to interrogate him at this point now that he has a lawyer and now that he is here in the United States. But to the extent that we can get information from him, I think we should. . . .

Eric Holder, Interview with CNN, 28 January 2002

From the quotes above, we have Obama saying that we should not be treating terrorists as criminals. We have Eric Holder, now and for the moment our Attorney General, not merely acknowledging that giving a terrorist a lawyer and Constitutional rights significantly constrains our ability to interrogate that person, but arguing that "enemy combatants" shouldn't be treated as prisoners of war under the Geneva Convention because that too would substantially constrain our ability to interrogate them for vital intelligence. How we get from those statements to today, where Holder and Obama are treating the Christmas Day Undiebomber, Abdullahmuttalab ,as a common criminal, is literally the story of how the far left demagogued and politicized our national security over the past six years.

Intelligence is time sensitive. Information on locations and practices that are true today will be changed tomorrow if the enemy has reason to believe that either has been compromised. Thus, when the Obama administration decided to treat the Christmas Undiebomber as common criminal and give him a lawyer after less than an hour of interrogation, they voluntarily squandered an intelligence asset with information vital to protecting American lives. Abdulmutallab thereafter remained silent for five weeks until he began to answer questions again. While Abdullmutalab may be providing high value intelligence today, it is an utter certainty that, with a five week delay, the value of the intelligence Abdullmutalab can convey is significantly lessened.

Yet the Obama and Holder are trying to defend their indefensible decision to treat Abdullmutulab as a common criminal for purely political reasons. The administration is in full spin mode now - thus the BS meter at the top of this post is pegging.

The administration called a press briefing Tuesday to publicly announce that, after weeks of silence, the FBI had finally induced Abdulmutallab to begin providing intelligence again, apparently involving his family in the process. The purpose of the announcement was "to let Americans 'know that we're doing everything possible to keep the American people safe." and to condemn Republicans for "politicizing" the issue. Amazing. And as an aside, no one has yet asked the question if there are any additional plea agreements that had to be first agreed to by the government before Abdulmutallab agreed now to answer questions. You can bet your life's savings that ink met paper before his lawyer allowed him to say word one, whether his parents were there or not.

The administration followed up the news conference with a letter from Attorney General Eric Holder to House Minority Leader Mitch McConnel in which Holder attempts to justify treating Abdulmutallab as a common criminal rather than an enemy combatant. The main reason he gives for not holding Abdulmutallab:

Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government’s legal authority to do so is far from clear. In fact, when the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer. Notably, the judge in that case was Michael Mukasey, my predecessor. . . .

Give me a break. As a threshold matter, Padilla was allowed to see a lawyer to challenge his designation as an enemy combatant - not because he was a criminal defendant with a right not to answer questions during the period in which he was being interrogated for intelligence. And if Holder switched on PBS News last night, he would have been treated to Michael Mukasey arguing that Abdullumutalab is an enemy combatant who should have been put in the military system without benefit of a lawyer or a Constitutional right not to answer questions.

More importantly, the "legal authority" to hold Abdulmutallab as an enemy combatant without Constitutional rights could not be more clear. We are a nation at war against those elements that carried out or otherwise assisted in the Sept. 11 attack. This war was formally authorized in 2001 by Congress in the Authorization For Use Of Military Force (AUMF). What the Undiebomber did in attempting to blow up a plane was an act of war that falls specifically within the ambit of the AUMF. Thus we have every right to hold him in our military system. Even the left wing of the Supreme Court never questioned that right. To the contrary, taking prisoners in war and holding them within the military system until hostilities cease is, to quote the left wing of the Court in Hamdi v. Rumsfeld, "so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force."

Indeed, so utterly groundless is Holder's claims that even Jan Crawford of CBS News isn't buying it.

. . . Aware of needed damage control, the White House and Attorney General are now taking the position that, legally, it was “highly questionable” whether they could have detained the terror suspect and continued to question him without a lawyer, even if they wanted to. Holder, in his letter to the Senators, said that legal authority “is far from clear.”

Many legal experts, however, agree the law is, in fact, pretty clear: It’s not that highly questionable at all. Under existing law, the Obama Administration had the authority to detain and question Abdulmutallab more extensively. And it chose not to.

If the Obama Administration wants to make a policy decision to treat al Qaeda operatives as common criminals and not as enemy combatants, that’s a position it could take—and some advocate they should. They’ve argued that giving rights to these terrorists, for example, will enhance our standing in the world and deter future terrorist acts.

But those are policy arguments and policy decisions, and they have consequences. They should stand or fall on the merits. They aren’t required by law.
To argue, instead, that the law essentially tied has their hands—that the law all but required this course of action in Detroit--ignores the cases that have been decided.

And there’s a danger in that. Whether or not the Obama Administration made the right call on Christmas Day, it’s a problem to see top officials now make incomplete or misleading legal arguments to justify their decision after the fact.

Holder also makes a laughable pragmatic argument that using the criminal law system is somehow the equal of - if not superior to - interrogations without constitutional rights and a lawyer under the law of war. The Volokh Conspiracy responds to that argument:

Do we think that maybe using the model of ordinary criminal justice questioning and plea bargaining and lawyer negotiation is such a smart idea at a moment in which we have to wonder whether, yes indeed, maybe this guy really does know something crucial? Talk about maximum hold-up value ...

I’m all in favor of such criminal justice rights for our ordinary criminals — and am not silly enough to believe that people like me want them because they will cause people to talk. It’s in order that in our ordinary criminal justice system, people will know they don’t have to and, frankly, won’t without advice from an attorney. I like that for ordinary criminal suspects, but that’s because it’s a limitation. AG Holder makes it sound as though it’s a great way to get them to talk. If it were, I’d think there was something wrong with our existing criminal justice system. It’s a feature of our ordinary criminal justice system; a bug if we think it’s supposed to produce actionable intelligence quickly. DOJ seems to think it’s a feature all the way around; this is unlikely at best.

We Mirandized him ... because otherwise we’d be depriving ourselves of an important tool for gaining actionable intelligence? By urging him not to talk? Really? That appears to be the AG’s argument, on this as on the general point about using the criminal justice system. If we don’t use a tool that is mostly, by comparison to our other possibilities, about limiting our access to him, we are somehow hurting ourselves by not using our full repertoire.

Well, it’s an argument, I suppose. An admirable example, I also suppose, of how to make a legal silk purse from a sow’s ear. I sure hope whoever got stuck writing it at DOJ doesn’t take it too seriously. The whole letter sounds as though it were cut and pasted from some human rights advocacy report, I’m afraid.

Obama and Holder, prior to taking power, had it right. Abdulmutallab should be treated as an enemy combatant. That is what our national security demands and the law allows. It is only politics that is driving Holder and Obama to do otherwise at the moment. If they think that they can keep this up, they had better be hoping and praying to a benevolent God that al Qaeda does not successfully conduct a mass casualty attack in America on their watch. If and when it happens, the public will be demanding their blood.