Michael Mukasey was the U.S. attorney general from 2007 to 2009 and the presiding judge at initial proceedings against Jose Padilla in 2002. He appears in the pages of the Washington Post today to shovel away the incredible amounts of bull excreta piled high onto the counterterrorism issue by Attorney General Eric Holder and Whitehouse Counterterrorism Advisor John Brennan. Specifically, Mukasey rebuts many of the outrageous claims made by Eric Holder in his letter to Mitch McConnell and the equally outragous charges made by John Brennan in his Sunday morning show appearance and his USA Today opinion piece. This from Mr. Mukasey:
. . . When Abdulmutallab tried to detonate a bomb concealed in his undershorts, he committed a crime; no doubt about that. He could not have acted alone; no doubt about that either. The bomb was not the sort of infernal device readily produced by someone of his background, and he quickly confirmed that he had been trained and sent by al-Qaeda in Yemen.
What to do and who should do it? It was entirely reasonable for the FBI to be contacted and for that agency to take him into custody. But contrary to what some in government have suggested, that Abdulmutallab was taken into custody by the FBI did not mean, legally or as a matter of policy, that he had to be treated as a criminal defendant at any point. Consider: In 1942, German saboteurs landed on Long Island and in Florida. That they were eventually captured by the FBI did not stop President Franklin Roosevelt from directing that they be treated as unlawful enemy combatants. They were ultimately tried before a military commission in Washington and executed. Their status had nothing to do with who held them, and their treatment was upheld in all respects by the Supreme Court.
. . . Guidelines put in place in 2003 and revised in September 2008 "do not require that the FBI's information gathering activities be differentially labeled as 'criminal investigations,' 'national security investigations,' or 'foreign intelligence collections,' or that the categories of FBI personnel who carry out investigations be segregated from each other based on the subject areas in which they operate. Rather, all of the FBI's legal authorities are available for deployment in all cases to which they apply to protect the public from crimes and threats to the national security and to further the United States' foreign intelligence objectives." . . .
Contrary to what the White House homeland security adviser and the attorney general have suggested, if not said outright, not only was there no authority or policy in place under the Bush administration requiring that all those detained in the United States be treated as criminal defendants, but relevant authority was and is the opposite. The Supreme Court held in Hamdi v. Rumsfeld that "indefinite detention for the purpose of interrogation is not authorized" but also said in the same case that detention for the purpose of neutralizing an unlawful enemy combatant is permissible and that the only right of such a combatant -- even if he is a citizen, and Abdulmutallab is not -- is to challenge his classification as such a combatant in a habeas corpus proceeding. This does not include the right to remain silent or the right to a lawyer, but only such legal assistance as may be necessary to file a habeas corpus petition within a reasonable time. That was the basis for my ruling in Padilla v. Rumsfeld that, as a convenience to the court and not for any constitutionally based reason, he had to consult with a lawyer for the limited purpose of filing a habeas petition, but that interrogation need not stop.
What of Richard Reid, the "shoe bomber," who was warned of his Miranda rights and prosecuted in a civilian court? He was arrested in December 2001, before procedures were put in place that would have allowed for an outcome that might have included not only conviction but also exploitation of his intelligence value, if possible. His case does not recommend the same procedure in Abdulmutallab's.
The struggle against Islamist extremists is unlike any other war we have fought. Osama bin Laden and those like-minded intend to make plain that our government cannot keep us safe, and have sought our retreat from the Islamic world and our relinquishment of the idea that human rather than their version of divine law must control our activities. This movement is not driven by finite grievances or by poverty. The enemy does not occupy a particular location or have an infrastructure that can be identified and attacked but, rather, lives in many places and purposely hides among civilian populations. The only way to prevail is to gather intelligence on who is doing what where and to take the initiative to stop it.
There was thus no legal or policy compulsion to treat Abdulmutallab as a criminal defendant, at least initially, and every reason to treat him as an intelligence asset to be exploited promptly. The way to do that was not simply to have locally available field agents question him but, rather, to get in the room people who knew about al-Qaeda in Yemen, people who could obtain information, check that information against other available data and perhaps get feedback from others in the field before going back to Abdulmutallab to follow up where necessary, all the while keeping secret the fact of his cooperation. Once his former cohorts know he is providing information, they can act to make that information useless.
Nor is it an answer to say that Abdulmutallab resumed his cooperation even after he was warned of his rights. He did that after five weeks, when his family was flown here from Nigeria. The time was lost, and with it possibly useful information. Disclosing that he had resumed talking only compounded the problem by letting his former cohorts know that they had better cover their tracks.
Many of the points Mukasey raises above I have raised in prior posts, including the two posts I link in the opening paragraph of this post. Regardless, the bottom line is that the Obama counterterrorism effort is a farce. The only thing more farcial is watching Holder and Brennan go on the offensive, attempting to claim that using the criminal justice system to gain wartime intelligence is superior and that, in any event, it was necessary. These people will get Americans killed.
Apparently, taking issue with the Obama Administration's threee-stoogesesque counterterrorism effort is now tantamount to supporting al Qaeda. Yes, yes, it's true. That according to John Brennan, Obama's counterterrorism advisor, who tells us in the USA Today that "[p]olitically motivated criticism and unfounded fear-mongering only serve the goals of al-Qaeda." Given that the Christmas Day attempted bombing failed to kill hundreds of Americans solely because of jihadi incompetence and that every intelligence chief expects with certainty another al Qaeda effort at a mass casulaty attack in the U.S. in the next six months, it would seem Mr. Brennan has a rather unique definition of "fear mongering." Apparently anything other than blind, unquestioning faith in the Dear Leader's ability to keep us safe based on counterintuitive policies is now "fear mongering."
Be that as it may, the Obama administration is in a full court press to make it seem that the administration acted responsibly when it gave Miranda rights and a lawyer to the Christmas Day Undiebomber, Adbulmutallab, within hours of his arrest, after less than two hours of interrogation, and without notifying or receiving input from the heads of our nation's intelligence and counterterrorism entities. It truly is trying to make chicken salad from the vilest of chicken excreta.
Over the weekend, Brennan appeared on Meet The Press, claiming that the fact Republicans were briefly notified that Abdulmutallab was in custody of the FBI and talking, that these same people should have immediately understood that Abdulmutallab would soon mirandized and given a lawyer. That is a real leap in logic.
One would expect that a terrorist captured in the U.S. to be taken into custody by the FBI. But we are a nation at war as the result of Congressional authorization. We can lawfully hold Abdulmutallab as an enemy combatant, and thus the decision to mirandize Abdulmutallab was certainly not required. The mere fact that FBI standard operating procedures require Miranda Warnings when capturing a common criminal does abosolutely nothing to negate those facts. Mirandizing Abdulmutallab was a choice, and to claim it an inexorable logical step to be divined from the mere fact that he was taken into FBI custody is facetious.
But that is hardly the only disingenouos statement made by John Brennan of late. His op-ed in the USA Today is a string of them.
Immediately after the failed Christmas Day attack, Umar Farouk Abdulmutallab was thoroughly interrogated . . .
One, possibly two sessions of interrogation lasting a grand total of under two hours and conducted by local FBI agents without speicalized background in the Yemeni branch of Al Qaeda constituties "thoroughly interrogated?" How dumb does this joker think we are?
Senior counterterrorism officials from the White House, the intelligence community and the military were all actively discussing this case before he was Mirandized and supported the decision to charge him in criminal court.
Correct me if I am wrong, but didn't every one of the heads of our intelligence and counterintelligence agencies testify before Congress that they were never consulted about Abdulmutallab prior to his being mirandized. And didn't AG Eric Holder, a man who has only an ancillary role in counterintelligence, state that the decision to mirandize Abdulmutallab was his and his alone? It would seem that Mr. Brennan is making things up as he goes along.
The most important breakthrough occurred after Abdulmutallab was read his rights, a long-standing FBI policy that was reaffirmed under Michael Mukasey, President Bush's attorney general. The critics who want the FBI to ignore this long-established practice also ignore the lessons we have learned in waging this war: Terrorists such as Jose Padilla and Saleh al-Mari did not cooperate when transferred to military custody, which can harden one's determination to resist cooperation.
This is utterly ridiculous. It is only through treating terrorists as common criminals that we can hope to gain intelligence? Did Padilla and al-Mari, who were both taken into FBI custody initially, cooperate while in FBI custody? What about KSM, whose first request upon being taken into custody was for his lawyer? What about the five weeks lost in gathering intel when Abdulmutallab was given a lawyer?
It's naive to think that transferring Abdulmutallab to military custody would have caused an outpouring of information. There is little difference between military and civilian custody, other than an interrogator with a uniform. The suspect gets access to a lawyer, and interrogation rules are nearly identical.
Let's see, under the military, Abdulmutallab would have had no right not to answer questions, nor a right to have a lawyer present during questioning. We would be under no compulsion to forgo interrogation when Abdulmutallab decided he didn't want to talk any more. And indeed, his sole recourse to a lawyer would have been to challenge his status as an enemy combatant . . . somehow I find those factors to be pretty substantive. And as to the interrogation rules, that is kind of like the story of the boy that killed his parents then asked for leniency from the Court because he was now an orphan. We have known for eight years that the interrogation tactics used by the police - and in 2002 mirrored by the military - were insufficient to induce most terrorists to talk. That is why the CIA developed enhanced interrorgation techniques - the same one's that Obama took from our inventory with a stroke of the pen a year ago. For Brennan now to use that as a reason to treat Abdulmutallab as a common criminal is mind numbing.
Cries to try terrorists only in military courts lack foundation. There have been three convictions of terrorists in the military tribunal system since 9/11, and hundreds in the criminal justice system — including high-profile terrorists such as Reid and 9/11 plotter Zacarius Moussaoui.
This paragraph from Brennan is significantly disingengous and deceptive in equal measure. There have been three convictions in the military tribunal system because of, one, court challenges during the Bush administration, and once those were finally concluded, the fact that Obama stopped all tribunal proceedings. Further, we are under no compulsion to prosecute anyone. Under the law of war, we can hold all captured enemy combatants until the conclusion of hostilities. Lastly, this claim to "hundreds" of convictions in the "criminal justice system," that is mystifying. As Byron York points out, the administration keeps making this claim, but they have yet to back it up with any facts.
This administration's efforts have disrupted dozens of terrorist plots against the homeland and been responsible for killing and capturing hundreds of hard-core terrorists, including senior leaders in Pakistan, Yemen, Somalia and beyond — far more than in 2008.
Much of this statement is simply unverifiable. To the extent it is based on an increased tempo of drone attacks - that is merely the continuation a Bush policy from 2008. As to captured individuals, considering we do not even have a High Value Interrogtion Team yet constituted, I'd really like to see the facts underlying that claim and just what we are doing with them.
Brennan concludes this piece of fiction with the statement, "We need no lectures about the fact that this nation is at war." There is no question in my mind that, unless there is intercession by a higher power, we will see Americans killed by terrorist acts over the next three years. And when the next mass casualty event comes, particularly if it is out of Yemen, I expect that the entire population of the U.S. will be providing the lectures to this administration.
The situation surrounding our government's handling of Abdulmutallab, the Christmas Undiebomber trained and armed by al Qaeda, has gone from bad to scandalous with the recent revelations regarding the inner workings of those agencies charged with counterterrorism. As a result of these revelations, we now know that:
Nine years after 9-11, Obama has, for all practical purposes, reduced our ability to interrogate al Qaeda operatives for actionable intelligence, to something approaching zero.
Nyuck-Nyuck-Nyuck.
As a threshold matter, intelligence gleaned from captured enemy combatants has been far and away our most important source of actionable intelligence in the war on terror. Yet a recent AP article recounts that the FBI questioned the Undiebomber for less then two hours in toto before reading him his rights. [Update: Former CIA Chief Michael Hayden expands on this in a WaPo op-ed:
. . . In the 50 minutes the FBI had to question him, agents reportedly got actionable intelligence. Good. But were there any experts on al-Qaeda in the Arabian Peninsula in the room (other than Abdulmutallab)? Was there anyone intimately familiar with any National Security Agency raw traffic to, from or about the captured terrorist? Did they have a list or photos of suspected recruits?
When questioning its detainees, the CIA routinely turns the information provided over to its experts for verification and recommendations for follow-up. The responses of these experts -- "Press him more on this, he knows the details" or "First time we've heard that" -- helps set up more detailed questioning.
None of that happened in Detroit. In fact, we ensured that it wouldn't. After the first session, the FBI Mirandized Abdulmutallab and -- to preserve a potential prosecution -- sent in a "clean team" of agents who could have no knowledge of what Abdulmutallab had provided before he was given his constitutional warnings. As has been widely reported, Abdulmutallab then exercised his right to remain silent.
In retrospect, the inadvisability of this approach seems self-evident.]
That revelation comes in the aftermath of Congressional hearings on how it was that Abdulmutallab, the undibomber went, in about twenty-four hours, from roasting his own chestnuts on an open fire during a Christmas Day flight to Detroit, then to a jail cell, complete with a lawyer, a Constitutional right not to anwwer questions, and presumably the mother of all ice packs. This from Stephen Hayes at the Weekly Standard:
. . . Four top counterterrorism officials testified before a congressional committee that they were not consulted about how to handle the interrogation of Umar Farouk Abdulmutallab, the al Qaeda operative who attempted to blow up Flight 253 on December 25, 2008.
That group included all three senior Obama administration officials who testified before the Senate Homeland Security Committee on Wednesday: Janet Napolitano, Secretary of Homeland Security; Michael Leiter, chairman of the National Counterterrorism Center; and Dennis Blair, the Director of National Intelligence. It also included FBI Director Robert Mueller.
With surprising candor, Blair, the nation's top intelligence official, explained that these officials were not deliberately excluded from the decisionmaking process in the immediate aftermath of the attack. Rather, he told the Senate Homeland Security Committee, there was no process at all.
"I've been a part of the discussions which established this high-value interrogation unit, [HIG] which we started as part of the executive order after the decision to close Guantanamo. That unit was created for exactly this purpose -- to make a decision on whether a certain person who's detained should be treated as a case for federal prosecution or for some of the other means. We did not invoke the HIG in this case," he said. "We should have."
We learn from NewsWeek that the White House responded with anger to Blair's admissions, calling his testimony incorrect:
[O]fficials who have worked on the issue said Blair was wrong on almost every count. Abdulmutallab couldn't possibly have been questioned by the HIG because the unit doesn't exist yet. The task force had recommended it be created to handle the questioning of "high value" Qaeda leaders who might be captured overseas—a criterion that clearly doesn't apply in Abdulmutallab's case. But the proposal is still being reviewed by the National Security Council, and the actual unit has not yet been created.
The specific recommendation, one source said, was to have a collection of intelligence officers and FBI agents who are knowledgeable about the background of the Qaeda leaders and deploy them—along with language and regional experts—as soon as a Qaeda leader was captured. But since Abdulmutallab was not a Qaeda leader, and was captured in Detroit, not overseas, the HIG wouldn't apply in any case, said the source, who worked closely on the proposal. . . .
Administration officials said the comments by Blair were especially galling because they seemed to vindicate the chief Republican criticism of the handling of the Detroit incident. . . .
Galling?!?!?!? Our Moralizer In Chief has utterly emasculated our ability to gain timely and actionable intelligence from people who have nightly wet dreams about setting off nuclear explosions in every city in our country. Yet the Obama administration shows far more concern about being publicly criticized by Republicans. All emphasis is on the political, none on the substance. The Obama administration has their priorities completely upside down.
To restate the revelations from the hearing and the NewsWeek article, this is the position in which Obama has placed our national security: There is no specific procedure for our government to deal with captured enemy combatants, nor are the tools in place to be able to conduct interrogations coordinated across those agencies charged with countering terrorism. By Executive Order, the CIA cannot interrogate high value detainees and, for the past year through today, the designated replacement for the CIA interrogators, the HIG, a task force under FBI leadership and direct White House oversight, is still on the drawing board. For al Qaeda leaders or operatives captured in the U.S., it is Obama's de facto policy that they would go into the criminal justice system.
The national security imperative of gathering intelligence is no longer the top priority. It is trumped in the Obama administration by the political imperative of giving substance to the far left's calls to treat terrorism as a criminal matter and terrorists as people with constitutional rights. Given Obama's ostentatious grandstanding on terrorism and in particular the issue of interrogating enemy combatants, given Obama's many rhetorical efforts to establish himself as our Moralizer in Chief on this issue, and yet given the reality of his horrid national security effort, it is apparent that while Obama has more than talked the talk, he has stumbled, fallen, stubbed a toe, pulled a hammy and broken both legs on the walk.
To continue from Mr. Hayes:
That's quite an admission. Blair wasn't finished (see the 51:00 mark of this video). "Frankly, we were thinking more of overseas people and, duh!, we didn't put it then. That's what we will do now. And so we need to make those decisions more carefully. I was not consulted and the decision was made on the scene. It seemed logical to the people there but it should have been taken using this HIG format at a higher level." . . .
Blair admitted that Abdulmutallab was not interrogated for intelligence purposes because the Obama administration had not considered using the newly-created elite interrogation unit on terrorist in the United States.
If Blair considered the handling of Abdulmutallab a mistake, FBI Director Robert Mueller, testifying at the same time before the Senate Judiciary Committee, did not. Mueller, like Blair, acknowledged that the crucial decision about how to treat Abdulmutallab was made by local FBI agents.
Now think about that for a second. It's not merely that the Director of the FBI, the DNI, and the DNCC were not contacted and that this was a systemic failure arising out of the lack of any procedure for a very forseeable contingeny. I think (hope and pray) that it is safe to assume these three stellar civil servants had heard about the attempted bombing in real time. But the fact is that after the undiebomber was captured, none of these individuals lifted so much as a finger to insinuate themselves into the situation to ensure that the undiebomber was interrogated for every bit of actionable intelligence that he possessed. Not a one of them made so much as a phone call. They sat with their thumbs up their collective asses in blissful ignorance while the Undiebomber was questioned by local FBI - who may or may not have the slightest background in counterterroism and the specifics of our intel on Abdulmutallab - and shortly thereafter, read his rights and given a lawyer. Lacking a procedure for this eventuality in year nine of the war on terror is unfathomable. Displaying this degree of placidity and lack of proactivity even in the abscence of a procedure is utterly unforgivable.
As an aside, it is not clear what role the DOJ directly played in that decision and, if they played any such role, whether Eric Holder was directly involved. That said, inquiring minds really, really want to know. The administration has refused to answer that question.
It should be noted that the White House, which, as previously noted, publicly trumpeted in August of 2009 that they had assumed a direct oversight role in high value interrogations, equally did nothing to intercede in this case. And let's not forget that the director of the National Counterterrorism Center was on vacation while all of this going on and that he, like Obama himself, saw no reason to cut his vacation short. All of this adds up to incompetence on a cosmic scale, a Three Stooges scale. And our national security is in their hands? Nyuck-Nyuck-Nyuck indeed.
. . . Mueller testified that those FBI agents interviewed Abdulmutallab about "ongoing and other threats." What the FBI director did not mention was that his agents interviewed the terrorist without any input from the National Counterterrorism Center — the institution we now know was sitting on top of a small mountain of not-yet-correlated information about the bomber.
So whatever information Abdulmutallab provided, he gave up in response to general questions about his activities, not in response to specific questions based on the intelligence the U.S. government had already collected on him. And within 24 hours — according to Senator Jeff Sessions, whose tough questioning left Mueller stuttering — Abdulmutallab was Mirandized and he stopped talking. (It would be nice to learn, from Mueller or someone else in a position to know, precisely when Abdulmutallab was read his rights.) . . .
Just unbelievable. If heads don't roll now for this level of ineptitude, we can rest assured that heads will roll in the future. It will be the heads of Americans who have placed their trust in Obama to protect our nation. Soaring rhetoric will stop neither bullets nor blast waves. Nor will Obama's moralizing be sufficient to keep a crippled jet in the sky. It seems inevitable that American blood will be spilled as a direct result of an Obama national security apparatus not merely in disaray, but Three Stooges-esque in its degree of incompetence.
Given that the Obama administration has already found criticism of their performance to be "galling," it is clear that the Obama administration is not going to do anything to correct this situation, Understand that there is no reason the Obama administration cannot, at this very moment, pull the Undiebomber out of our federal justice system, treat him as an enemy combatant, and interrogate him his every waking minute without the presence of a lawyer. Instead, Obama is refusing to pull the undiebombler out of the District Court docket now because it would be a tacit acknowledgement of the the glaring holes in - and gross incompetence of - his national security apparatus.
I documented in detail two weeks ago how Obama had weakened our national security during his first year in office. I was far, far too easy on Obama. I had assumed that our national security apparatus was, nine years on from 9-11, still a well oiled machine, but that Obama had made a command decision to move Abdulmutallab to federal Court. I had no idea that the reality is that Obama had made sufficient changes to the procedures and tone of our national security apparatus that it stands today as uncoordinated, incompetent, operating on autopilot without appropriate procedures in place and unfathomably lacking in proactiveness at the very highest levels. After Obama has had a full year in office, and after he had inherited a functioning system from the Bush administration, this is truly scandalous - not to mention incredibly dangerous for America. Call it Undiegate.
Update: The Washington Post Editorial Board arrives (a bit late) at some of the same conclusions:
. . . The Obama administration had three options: It could charge [the undiebomber] in federal court. It could detain him as an enemy belligerent. Or it could hold him for prolonged questioning and later indict him, ensuring that nothing Mr. Abdulmutallab said during questioning was used against him in court.
It is now clear that the administration did not give serious thought to anything but Door No. 1. This was myopic, irresponsible and potentially dangerous. . . .
According to sources with knowledge of the discussions, no one questioned the approach or raised the possibility of taking more time to question the suspect. This makes the administration's approach even more worrisome than it would have been had intelligence personnel been cut out of the process altogether.
Update: Charles Krauthammer is on precisely the same sheet of music this week.
Update: Maine's Susan Collins - of all people - goes nuclear on the Obama administration over this.
. . . when a moderate like Collins calls the handling of Umar Farouk Abdulmutallab “irresponsible,” “dangerous,” and “inconceivable,” that has a broader political impact. When Collins says that “Foreign terrorists are enemy combatants and they must be treated as such,” and calls the current Obama policies a “charade,” that will make it more difficult for people to write it off as knee-jerk, right-wing contempt for Obama instead of his policies:
While Collins is on the money, she does not go quite far enough. Few people, Collins included, seem to be catching on to the degree to which Obama has deconstructed what was once a highly functional national security apparatus, not to mention the equally scandalous degree of institutional passivity at the top of that apparatus now.
The situation surrounding our government's handling of Abdulmutallab, the Christmas Undiebomber trained and armed by al Qaeda, has gone from bad to scandalous with the recent revelations regarding the inner workings of those agencies charged with counterterrorism. As a threshold matter, intelligence gleaned from captured enemy combatants has been far and away our most important source of actionable intelligence in the war on terror. Yet we now know that nine years on from 9-11 and with one year in office, the Obama administration has not constituted an entity to interrogate high value targets. We now know that nine years on and with one year in office, Obama does not have any system in place to interrogate for intelligence an al Qaeda leader or operative caught in the U.S. . Obama took the CIA completely out of the interrogation business for all high level targets in August. He has not patched that gaping hole in our counterterrorism capabilities. Thus when Abdulmutallab, the Christmas undiebomber, was captured, he was by default sent into the criminal justice system and given a lawyer.
Let me restate that.
Nine years after 9-11, Obama has, for all practical purposes, reduced our ability to interrogate al Qaeda operatives for actionable intelligence, to something approaching zero.
Nyuck-Nyuck-Nyuck.
We were treated yesterday to Congressional hearings on how it was that Abdulmutallab, the undibomber went, in about twenty-four hours, from roasting his own chestnuts on a Christmas Day flight to a jail cell in Detroit, complete with a lawyer, a Constitutional right not to anwwer questions, and presumably the mother of all ice packs. This from Stephen Hayes at the Weekly Standard:
. . . Four top counterterrorism officials testified before a congressional committee that they were not consulted about how to handle the interrogation of Umar Farouk Abdulmutallab, the al Qaeda operative who attempted to blow up Flight 253 on December 25, 2008.
That group included all three senior Obama administration officials who testified before the Senate Homeland Security Committee on Wednesday: Janet Napolitano, Secretary of Homeland Security; Michael Leiter, chairman of the National Counterterrorism Center; and Dennis Blair, the Director of National Intelligence. It also included FBI Director Robert Mueller.
With surprising candor, Blair, the nation's top intelligence official, explained that these officials were not deliberately excluded from the decisionmaking process in the immediate aftermath of the attack. Rather, he told the Senate Homeland Security Committee, there was no process at all.
"I've been a part of the discussions which established this high-value interrogation unit, [HIG] which we started as part of the executive order after the decision to close Guantanamo. That unit was created for exactly this purpose -- to make a decision on whether a certain person who's detained should be treated as a case for federal prosecution or for some of the other means. We did not invoke the HIG in this case," he said. "We should have."
We learn from NewsWeek that the White House responded with anger to Blair's admissions, calling his testimony incorrect:
[O]fficials who have worked on the issue said Blair was wrong on almost every count. Abdulmutallab couldn't possibly have been questioned by the HIG because the unit doesn't exist yet. The task force had recommended it be created to handle the questioning of "high value" Qaeda leaders who might be captured overseas—a criterion that clearly doesn't apply in Abdulmutallab's case. But the proposal is still being reviewed by the National Security Council, and the actual unit has not yet been created.
The specific recommendation, one source said, was to have a collection of intelligence officers and FBI agents who are knowledgeable about the background of the Qaeda leaders and deploy them—along with language and regional experts—as soon as a Qaeda leader was captured. But since Abdulmutallab was not a Qaeda leader, and was captured in Detroit, not overseas, the HIG wouldn't apply in any case, said the source, who worked closely on the proposal. . . .
Administration officials said the comments by Blair were especially galling because they seemed to vindicate the chief Republican criticism of the handling of the Detroit incident. . . .
Galling? GALLING? Our Moralizer In Chief has utterly emasculated our ability to gain timely and actionable intelligence from people who have nightly wet dreams about setting off nuclear explosions in every city in our country. The Obama administration though shows far more concern about being publicly criticized by Republicans. All emphasis is on the political, none on the substance. The Obama administration has their priorities completely skewed. And correct me if I am wrong, but do those conditions on the HIG as to whom they might interrogate sound like Obama is recreating something akin to the infamous Goerlickian wall?
To restate the revelations from the hearing and the NewsWeek article, this is the position in which Obama has placed our national security: There is no specific procedure for our government to deal with captured enemy combatants, nor are the tools in place to be able to conduct fully coordinated interrogations. By Executive Order, the CIA cannot interrogate high value detainees and, for the past year through today, the designated replacement for the CIA, the HIG, a task force under FBI leadership and direct White House oversight, is still on the drawing board. For al Qaeda leaders or operatives captured in the U.S., it is Obama's de facto policy that they would go into the criminal justice system. This is completely gratuitous - and wholly screwed. Given Obama's ostentatious grandstanding on the issue of interrogating enemy combatants, given his many rhetorical efforts to establish himself as our Moralizer in Chief on this issue, and yet given the reality of his horrid national security effort, it is apparent that while Obama has talked the talk, he has stumbled, fallen, stubbed a toe, pulled a hammy and broken both legs on the walk.
To continue from Mr. Hayes:
That's quite an admission. Blair wasn't finished (see the 51:00 mark of this video). "Frankly, we were thinking more of overseas people and, duh!, we didn't put it then. That's what we will do now. And so we need to make those decisions more carefully. I was not consulted and the decision was made on the scene. It seemed logical to the people there but it should have been taken using this HIG format at a higher level." . . .
Blair admitted that Abdulmutallab was not interrogated for intelligence purposes because the Obama administration had not considered using the newly-created elite interrogation unit on terrorist in the United States.
If Blair considered the handling of Abdulmutallab a mistake, FBI Director Robert Mueller, testifying at the same time before the Senate Judiciary Committee, did not. Mueller, like Blair, acknowledged that the crucial decision about how to treat Abdulmutallab was made by local FBI agents.
Now think about that for a second. It's not merely that the Director of the FBI, the DNI, and the DNCC were not contacted and that this was a systemic failure arising out of the lack of any procedure for a very forseeable contingeny. I think (hope and pray) that it is safe to assume these three stellar civil servants had heard about the attempted bombing in real time. But the fact is that after the undiebomber was captured, none of these individuals lifted so much as a finger to insinuate themselves into the situation to ensure that the undiebomber was interrogated for every bit of actionable intelligence that he possessed. Not a one of them made so much as a phone call. They sat with their thumbs up their collective asses in blissful ignorance while the Undiebomber was questioned by local FBI - who may or may not have the slightest background in counterterroism and the specifics of our intel on Abdulmutallab - and shortly thereafter, read his rights and given a lawyer. Lacking a procedure for this eventuality in year nine of the war on terror is unfathomable. Displaying this degree of placidity and lack of proactivity even in the abscence of a procedure is utterly unforgivable.
As an aside, it is not clear what role the DOJ directly played in that decision and, if they played any such role, whether Eric Holder was directly involved. That said, inquiring minds really, really want to know.
It should be noted that the White House, which, as previously noted, publicly trumpeted in August of 2009 that they had assumed a direct oversight role in high value interrogations, equally did nothing to intercede in this case. And let's not forget that the director of the National Counterterrorism Center was on vacation while all of this going on and that he, like Obama himself, saw no reason to cut his vacation short. All of this adds up to incompetence on a cosmic scale, a Three Stooges scale. And our national security is in their hands? Nyuck-Nyuck-Nyuck indeed.
. . . Mueller testified that those FBI agents interviewed Abdulmutallab about "ongoing and other threats." What the FBI director did not mention was that his agents interviewed the terrorist without any input from the National Counterterrorism Center — the institution we now know was sitting on top of a small mountain of not-yet-correlated information about the bomber.
So whatever information Abdulmutallab provided, he gave up in response to general questions about his activities, not in response to specific questions based on the intelligence the U.S. government had already collected on him. And within 24 hours — according to Senator Jeff Sessions, whose tough questioning left Mueller stuttering — Abdulmutallab was Mirandized and he stopped talking. (It would be nice to learn, from Mueller or someone else in a position to know, precisely when Abdulmutallab was read his rights.) . . .
Just unbelievable. If heads don't roll now for this level of ineptitude, we can rest assured that heads will roll in the future. It will be the heads of Americans who have placed their trust in Obama to protect our nation. Soaring rhetoric will stop neither bullets nor blast waves. Nor will Obama's moralizing be sufficient to keep a crippled jet in the sky. It seems inevitable that American blood will be spilled as a direct result of an Obama national security apparatus not merely in disaray, but Three Stooges-esque in its degree of incompetence.
Given that the Obama administration has already found criticism of their performance to be "galling," it is clear that the Obama administration is not going to do anything to correct this situation, Understand that there is no reason the Obama administration cannot, at this very moment, pull the Undiebomber out of our federal justice system, treat him as an enemy combatant, and interrogate him his every waking minute without the presence of a lawyer. Instead, Obama is refusing to pull the undiebombler out of the District Court docket now because it would be a tacit acknowledgement of the the glaring holes in and gross incompetence of his national security apparatus.
The second threat to our national security from Obama's decision to put terrorists in our civilian justice system comes from all the negative ramifications of a trial in our federal courts - as pointed out on numerous occasions by Andrew McCarthy. That brings us to the case of Aafia Siddiqui, once known as the most wanted woman in America for her al Qaeda ties. She is today on trial in NY District Court. You can read about her background here. Siddiqui is a Pakistani national who attended MIT. She was arrested in Pakistan with documents in her possession related to al Qaeda and that dealt with proposed mass casualty attacks. During questioning, she attempted to shoot her U.S. interrogators. Instead of leaving her in the military commission system, she is now being tried soley for the attempted shooting. As an aside, I have no idea whether she was ever interrogated before being given a lawyer and placed in the judicial docket for trial. Regardless, as to be expected, her trial on day 1 is turning into a circus. No Oil for Pacifists has the story. Among other things, she is loudly demanding that Jews be kept off the jury and the Judge, amazingly, has ruled that her ties to al Qaeda cannot be raised in the trial because it would be overly prejudicial. Let that sink in. This is a relatively easy trial. I can't wait to see the judicial rulings in KSM's trial.
I documented in detail two weeks ago how Obama had weakened our national security during his first year in office. I was far, far too easy on Obama. I had assumed that our national security apparatus was, nine years on from 9-11, a well oiled machine, but that Obama had made a command decision to move Abdulmutallab to federal Court. I had no idea that the reality is that our national security team is uncoordinated, incompetent, operating on autopilot without appropriate procedures in place and unfathomably lacking in proactiveness at the very highest levels. After Obama has had a full year in office, and after he had inherited a functioning system from the Bush administration, this is truly scandalous - not to mention incredibly dangerous for America. Call it Undiegate.
Update: The Washington Post Editorial Board arrives (a bit late) at the same conclusions:
. . . The Obama administration had three options: It could charge [the undiebomber] in federal court. It could detain him as an enemy belligerent. Or it could hold him for prolonged questioning and later indict him, ensuring that nothing Mr. Abdulmutallab said during questioning was used against him in court.
It is now clear that the administration did not give serious thought to anything but Door No. 1. This was myopic, irresponsible and potentially dangerous. . . .
According to sources with knowledge of the discussions, no one questioned the approach or raised the possibility of taking more time to question the suspect. This makes the administration's approach even more worrisome than it would have been had intelligence personnel been cut out of the process altogether.
Update 2 - It gets even worse. According to an AP report, the total amount of time the undiebomber was subject to questioning before being read his rights amounted to about two hours divided between two local FBI units, with the second interrogation being done by a unit that was, because of concerns with admissibility, not even briefed on the results of the initial fifty minutes of questioning.
Update 3: Charles Krauthammer is on precisely the same sheet of music this week.
Update 4: Maine's Susan Collins - of all people - goes nuclear on the Obama administration over this.
. . . when a moderate like Collins calls the handling of Umar Farouk Abdulmutallab “irresponsible,” “dangerous,” and “inconceivable,” that has a broader political impact. When Collins says that “Foreign terrorists are enemy combatants and they must be treated as such,” and calls the current Obama policies a “charade,” that will make it more difficult for people to write it off as knee-jerk, right-wing contempt for Obama instead of his policies:
While Collins is on the money, she does not go quite far enough. Few people, Collins included, seem to be catching on to the degree to which Obama has deconstructed what was once a highly functional national security apparatus, not to mention the equally scandalous degree of institutional passivity at the top of that apparatus now.
President Obama’s proposal for a new legal system in which terrorism suspects could be held in “prolonged detention” inside the United States without trial would be a departure from the way this country sees itself, as a place where people in the grip of the government either face criminal charges or walk free.
Oh, leftie heads are about to explode. The Obama Administration, in its latest Friday bad news dump, took the Bush position in its brief filed with the Supreme Court yesterday that, even though a federal court has ordered that the seventeen Uighur Chinese currently being held at Guantanamo must be released, federal Courts have no power to order them released in the United States. According to the Obama DOJ, they can retained at Guantanamo indefinitely until a suitable country agrees to take them. All those lefties who have been crying 'try them or release them' are going to need therapy.
That said, Obama is in fact moving away from Bush in one very critical area. He is returning us to the failed 9-10 law enforcement model to combat radical Islamic terrorism.
Of course, it's one thing to say that they are not enemy combatants and should therefore be released. It is quite another thing, though, to say that they should be released into the United States (which, because of their terrorist affiliations, would violate federal immigration law). . . . [F]ederal judge Richard Urbina did try to order their release into the U.S. (Here at NRO, the editors weighed in on Judge Urbina's absurd decision, here.) Fortunately, in a well reasoned decision authored by Judge Raymond Randolph . . . the DC Circuit Court of Appeals overruled Judge Urbina, holding that just because courts have the power to review whether a prisoner is properly designated an enemy combatant does not mean they have the power to order the release into the United States of those found not to be enemy combatants.
The Uighurs appealed, and today the Justice Department filed its responsive brief. Solicitor General Elena Kagan argued — consistent with the Bush administration position — that the Uighurs have no right to be released into the U.S. As Lyle Denniston recaps at SCOTUSblog:
The brief holds to the position of the Bush Administration that a court’s power to issue a remedy in a habeas case — in the wake of the Supreme Court’s mandate that the detainees have a constitutional right to seek their freedom — is limited to a finding of eligibility for release, without an actual release from captivity while diplomatic negotiations to resettle a prisoner continue. . . .
Read the entire article. Let the wailing and gnashing of teeth commence.
But it would seem that there might be wailing and gnashing on both sides of the aisle. As Andy McCarthy points out in a separate article, Obama is moving us towards a 9-10 law enforcement model for dealing with terrorism, putting the FBI back in the drivers seat. Read the article here. As McCarthy documents, that did not work out well when tried in the 1990's.
Democrats such as Barney Frank, Harry Reid, Chuckie Schumer and Chris Dodd actively resisted greater oversight of Fannie Mae and Freddie Mac. Now, with it all coming down around their - and our - ears, there finally will be some oversight.
The FBI is commencing investigations into Fannie and Freddie. Given that there was an ENRON style accounting scandal of deliberate fraud at Fannie Mae, given that Franklin Raines, Janet Reno and Jamie Goerlock pulled close to $200 million out of Fannie while leaving us a trillion dollar bill, it is about time that some oversight finally start to happen - and the fact that it is at the point of a gun is even better. It is years too late.
At the Crim Prof Blog, federal prosecutors are coming under ever greater threats of violence. Following a survey done after three murders of U.S. attorneys since 2001, 46 percent of U.S. attorneys said they had been threatened or assaulted due to their job, and 81 percent said someone in their office had been threatened. They are seeking weapons permits, special alarm systems for their houses and secure parking.
There is a fascinating post at the Psychology of Deception blog on a recent study of increasing cognitive load to provide more cues to veracity. In essence, having a person tell you their story in reverse order makes it significantly more likely that you will be able to determine whether they are telling the truth or not.
In Britain, a police inspector blogs on three hoodies who tossed a woman onto a set of railroad tracks after she told them that they should stop smoking. Britain has become averse to punishing criminals.
White Collar criminal investigator Tracy Coenen blogs on California’s determination that YourTravelBiz.com is a giant pyramid scheme. As an aside, so is Social Security as its currently set up, its just that we can’t prosecute Congress for that one.
Sigmund, Carl & Alfred blogs on yet another left wing idea whose unintended consequences are to injure those they seek to help. This time its "fair trade" coffee.
Following the suicide of Dr. Bruce Ivins, small details of the FBI's "Ameritharx" case of him have been leaking. The FBI just announced that the Court has unsealed some of the documents in the case, and in particular, the Search Warrant affadavits that set forth the basis for the FBI's suspicion of Dr. Ivins. _______________________________________________________
This from the affidavit 8-433, the final affadavit for a search warrant in regards to Dr. Ivins prior to his death:
The Federal Bureau of Investigation and the U.S. Postal Inspection Service (hereinafter "Task Force") investigation of the anthrax attacks has led to the identification of Dr. Bruce Edward Ivins, an anthrax researcher at the U.S. Army Medical Research Institute for Infectious Diseases, Fort Detrick, MD (hereinafter "USAMRIID"), as a person necessitating further investigation for several reasons:
(1) At the time of the attacks, he was the custodian of a large flask of highly purified anthrax spores that possess certain genetic mutations identical to the anthrax used in the attacks;
(2) Ivins has been unable to give investigators an adequate explanation for his late night laboratory work hours around the time of both anthrax mailings;
(3) Ivins has claimed that he was suffering serious mental health issues in the months preceding the attacks, and told a coworker that he had "incredible paranoid, delusional thoughts at times" and feared that he might not be able to control his behavior;
(4) Ivins is believed to have submitted false samples of anthrax from his lab to the FBI for forensic analysis in order to mislead investigators;
(5) at the time of the attacks, Ivins was under pressure at work to assist a private company that had lost its FDA approval to produce an anthrax vaccine the Army needed for U.S. troops, and which Ivins believed was essential for the anthrax program at USAMRIID; and
(6) Ivins sent an email to [redacted] a few days before the anthax attacks warning [redacted] "Bin Laden terrorists or sure lave anthrax and sarin gas" and have "just decreed death to ail Jews and all Americans," language similar to the anthrax letters warning "WE HAVE THIS ANTHRAX . . . DEATH TO AMERICA . . . DEATH TO ISRAEL."
In his affidavit dated October 3 1,2007, submitted in support of an initial search of the residence and vehicles of Bruce Edwards Ivins, Supervisory Postal Inspector Thomas F. Delafera described in greater detail information regarding Bruce Edwards Ivins, and his probable connection to the anthrax mailings. I hereby incorporate this affidavit by reference herein. See Exhibit A.
You can find the affadavit here and all documents released here. It certainly sounds as if the FBI was on its way to building a viable case against Mr. Ivins, contrary to statements from Mr. Ivins's attorney. His protestations to the contrary sounded like he was laying the groundwork for a case against the government.
An FBI agent is calling into question both the intelligence value of Abu Zubaydah and the use of waterboarding and other enhanced interrogation techniques to obtain information from him. Zudaydah was considered a major figure in al Qaeda at the time of his capture. Last week, according to an ABC News interview with John Kiriakou, a CIA agent involved in the capture and subsuquent interrogation of Zubaydah:
1. Zubaydah refused to provide any substantive intelligence information in the immediate aftermath of his capture and until waterboarding was used upon him.
2. Zubaydah was subject to increasing degrees of "enhanced interrogation" that he resisted.
3. Zubaydah ws ultimately waterboarded one time for about 30 seconds. After he was waterboarded, he had a visit from Allah in his sleep who urged him to fully cooperate - and he did.
4. No further "enhanced interrogation techniques were used upon Zubaydah after that.
5. The information that Zubaydah provided was critical in breaking up dozens of al Qaeda attacks planned about the time of his capture.
6. The additional information that Zubaydah provided was general in nature as to the operational systems and tactics of al Qaeda.
The Washington Post article calls at least some of this information into question. Specifically:
During his first month of captivity, Abu Zubaida described an al-Qaeda associate whose physical description matched that of Padilla, leading to Padilla's arrest at O'Hare International Airport in Chicago in May 2002. A former CIA officer said in an interview that Abu Zubaida's "disclosure of Padilla was accidental." The officer added that Abu Zubaida "was talking about minor things and provided a small amount of information and a description of a person, just enough to identify him because he had just visited the U.S. Embassy" in Pakistan.
Other officials, including Bush, have said that during those early weeks -- before the interrogation turned harsh -- Abu Zubaida confirmed that Mohammed's role as the mastermind of the Sept. 11 attacks.
A rift nonetheless swiftly developed between FBI agents, who were largely pleased with the progress of the questioning, and CIA officers, who felt Abu Zubaida was holding out on them and providing disinformation. Tensions came to a head after FBI agents witnessed the use of some harsh tactics on Abu Zubaida, including keeping him naked in his cell, subjecting him to extreme cold and bombarding him with loud rock music.
. . . According to Kiriakou's account, which he said is based on detailed descriptions by fellow team members, Abu Zubaida broke after just 35 seconds of waterboarding, which involved stretching cellophane over his mouth and nose and pouring water on his face to create the sensation of drowning.
But other former and current officials disagreed that Abu Zubaida's cooperation came quickly under harsh interrogation or that it was the result of a single waterboarding session. Instead, these officials said, harsh tactics used on him at a secret detention facility in Thailand went on for weeks or, depending on the account, even months.
The videotaping of Abu Zubaida in 2002 went on day and night throughout his interrogation, including waterboarding, and while he was sleeping in his cell, intelligence officials said. "Several hundred hours" of videotapes were destroyed in November 2005, a senior intelligence officer said. The CIA has said it ceased waterboarding in 2003.
According to the 9/11 Commission, which had access to FBI and CIA summaries of the interrogation, after August 2002 -- when the harsh questioning is said to have begun -- Abu Zubaida identified Abd al-Rahim al-Nashiri as a productive recruiter for al-Qaeda. Nashiri was subsequently captured and subjected to harsh interrogation, including waterboarding, but videotapes of that questioning were also destroyed by the CIA.
The commission also said Abu Zubaida provided further information in 2003 and 2004 about Mohammed's conversations with bin Laden and about Abu Turab, a key trainer for the Sept. 11 hijackers.
Even under intense pressure, Abu Zubaida remained a wily adversary, according to a former senior intelligence official familiar with the interrogation, who explained that he seemed "very selective in what he protected and what he gave up." Another former official said that when the measures turned harsh, Abu Zubaida constructed a rationale for why he should cooperate. He decided that "God will not try you beyond your ability to resist," as the former official put it.
Coleman, a 31-year FBI veteran, joined other former law enforcement colleagues in expressing skepticism about Abu Zubaida's importance. Abu Zubaida, he said in an interview, was a "safehouse keeper" with mental problems who claimed to know more about al-Qaeda and its inner workings than he really did.
Abu Zubaida's diary, which Coleman said he examined at length, was written in three distinct personalities -- one younger, one older and one the same age as Abu Zubaida. The book was full of flowery and philosophical meanderings, and made little mention of terrorism or al-Qaeda, Coleman said.
Looking at other evidence, including a serious head injury that Abu Zubaida had suffered years earlier, Coleman and others at the FBI believed that he had severe mental problems that called his credibility into question. "They all knew he was crazy, and they knew he was always on the damn phone," Coleman said, referring to al-Qaeda operatives. "You think they're going to tell him anything?"
Tenet disagreed, writing in his book that CIA psychiatrists concluded that Abu Zubaida "was using a sophisticated literary device to express himself" in the diary, which was "hundreds of pages" long.
Coleman said reports of Abu Zubaida's statements during his early, traditional interrogation were "consistent with who he was and what he would possibly know." He and other officials said that materials seized from Abu Zubaida's house and other locations, including names, telephone numbers and computer laptops, provided crucial information about al-Qaeda and its network. . . .
Read the entire article here. This is one of the few times when I would like to see intelligence information declassified and made public to the maximum extent possible. If there is to be a national debate on "enhanced interrogation" and whether to retain waterboarding as a potential tool in our arsenal, then we should know the details of its use to date. Otherwise, the debate will turn on emotion and supposition. When the issue is one of national security, that is not acceptable.
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