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December 30, 2009, 0:00 a.m. Janet Napolitano, President Obama’s secretary of homeland security, has been rightly criticized for her declaration that “the system worked” in the thwarted plot to bring down Northwest Airlines Flight 253. Secretary Napolitano and the Obama administration quickly pulled up stakes on that position in the face of ridicule from all corners. Less noticed is the administration’s continuing insistence that another system will work to protect the country from future attacks. This time they have put their unquestioned faith, and our security, in the hands of our civilian law-enforcement institutions and the federal courts.
The Justice Department announced charges against Umar Farouk Abdul Mutallab in a press release with characteristic matter-of-factness, including the standard reminder that “criminal complaints contain mere allegations and a defendant is presumed innocent until proven guilty.” Press releases serve many purposes, not least of which is to inform the public that a dangerous person has been apprehended. Charging Mutallab with a crime is no cause for relief, however. Instead, the decision renews concern about how seriously the administration is taking the threat posed by al-Qaeda and other terrorist organizations, and whether we are slipping back into the pre-9/11 mindset of treating terrorism as principally a law-enforcement problem. Whatever legitimate role our civilian authorities may have in eventually bringing Mutallab to justice for attempting to blow up the airplane, experience and common sense tell us they are a poor means of addressing the more immediate problem — acquiring intelligence to stop the next attack before it happens. The Obama administration arrested Mutallab on Christmas Day, and the next day charged him with the crimes of attempting to destroy the airplane and placing a destructive device onboard. Mutallab was charged in a federal criminal complaint, which is almost always a precursor to indictment by a grand jury and then a trial. His case is now being processed in the civilian system. But this swirl of activity gave only the illusion of real action and betrayed a fundamental disconnect between the nature of the terrorist threat we face and the tools the administration is willing to deploy to protect the country. President Obama faced a choice when he learned about the attack. He could have permitted the Justice Department to take the lead and rush to treat Mutallab like any individual suspected of a crime, with all the attendant constitutional and statutory protections afforded criminal suspects, including Miranda warnings, the right to an attorney, and the right to remain silent. Or the president could have ordered Mutallab, who is neither a U.S. citizen nor a permanent or temporary resident of this country, transferred into military custody for interrogation as an unlawful enemy combatant with no such rights. The Obama administration has rebranded unlawful enemy combatants “unprivileged enemy belligerents,” presumably to take the sting out of the original phrase used by the Bush administration. By whatever name, designating Mutallab as an enemy of the United States would have provided interrogators much greater flexibility in questioning him and given him no legal right to resist. The decision to charge Mutallab as a criminal, rather than designate him as an enemy combatant, was a momentous one that in all likelihood guarantees we will gain less intelligence about how the attack was planned, who planned it, and whether others are on the way. Most disturbing was the speed with which the Obama administration made this critical choice. It took less than 24 hours for the Justice Department to bring charges against Mutallab. This was surely insufficient time for the White House and the federal government’s various experts in intelligence and national security to evaluate how valuable an intelligence resource Mutallab might be or what would be the best way to obtain that intelligence. Press reports suggest that Mutallab has voluntarily provided some general information to investigators about the plot, but imagine how much more information — including specific details on his co-conspirators and future plots — he might have divulged if his cooperation with investigators were not purely voluntary. Indeed, the fact that so much is becoming public about what he has told investigators is itself disturbing. Intelligence derived from interrogations of al-Qaeda detainees was previously so highly classified that even government officials with the highest levels of security clearance were not permitted to see the information without being granted special access. Classified information has never been a comfortable fit with our civilian criminal-justice system, which is premised on transparency and public trials. And make no mistake, the Obama administration sees Mutallab as a law-enforcement problem. If there were evidence that the leadership of the administration had thought long and hard about how to treat Mutallab and nevertheless chose the current course, one could disagree with the policy decision but would have to acknowledge that intelligent people had considered all the options. But the head-spinning turnaround time from Mutallab’s arrest to his being charged as a criminal suggests that it was not a close call for the Obama administration, or one to which it even gave much deliberation. To the administration, the answer appears to have been easy: Charge the crimes first, ask questions later. But doing so is impermissible under our Constitution, at least without getting Mutallab’s prior informed consent to questioning. So what might we have lost by treating Mutallab as a criminal rather than as an enemy combatant? For one thing, it was always implausible that Mutallab acted alone, even though it was not until President Obama made his first public comments about the attack, on Monday, that the administration acknowledged this. Now reports are that an al-Qaeda branch in Yemen has taken responsibility for the failed attack, which is consistent with Mutallab’s statements that he is a member of al-Qaeda and received training in Yemen. If Mutallab had been designated as an enemy combatant, interrogators could question him at length about who trained him, who provided him the bomb-making materials, who helped him travel to Europe and the United States, who are his contacts in Europe, the United States, Nigeria, and Yemen, what other plots he knows about, and many other topics. From a law-enforcement perspective, the answers to these questions may be of interest to the prosecutor, the jury, and the judge, but they are completely unnecessary in determining Mutallab’s guilt or innocence for attempting to blow up the airplane. The passengers and crew who witnessed the attack can provide all the evidence needed for a conviction. From an intelligence perspective, in contrast, the answers to these questions are the only ones that matter. Intelligence is about stopping the next attack before it happens, while law enforcement is focused on punishing criminals for the acts they have already committed. Law enforcement can punish Khalid Sheikh Mohammed, the mastermind of the 9/11 plot, or Zacarias Moussaoui, the so-called 20th hijacker, or the Blind Sheik, who conspired with others in the first World Trade Center attack in 1993, or Major Nidal Hasan, who massacred his fellow soldiers at Fort Hood, but it is not designed to stop them before they can act. That is what good intelligence is supposed to do. Take the cautionary tale of the pending criminal case against Najibullah Zazi, who was arrested by the FBI with much fanfare over the summer. Zazi was under surveillance by federal authorities who suspected that he was planning some kind of terrorist attack in New York City. According to press reports, however, the surveillance was blown because of miscommunication between the FBI and New York City Police Department, which caused the investigation to end prematurely. Zazi voluntarily spoke to the FBI for a time but eventually demanded a lawyer, as was his right in the civilian system, and then stopped talking. Zazi was initially charged with making false statements to investigators and subsequently was indicted for the more serious crime of conspiracy to use weapons of mass destruction. Because he is now a criminal defendant, any future cooperation Zazi may provide is entirely up to him and his lawyer. This would not be the case had Zazi been designated as an enemy combatant. Former CIA director Michael Hayden has said that the majority of intelligence we have learned about al-Qaeda, its leadership structure, and its operations came from use of so-called enhanced interrogation techniques on certain al-Qaeda detainees who were held as enemy combatants, not criminal defendants. Though some in the Obama administration have questioned whether less coercive means could have been used to obtain the same information, no one has denied that the interrogations in fact elicited much useful intelligence. Nonetheless, President Obama effectively banned the use of many of these interrogation techniques in an executive order he signed shortly after taking office in January. President Obama, however, did leave the door open for use of the interrogation techniques set out in the Army Field Manual, which is designed to govern interrogations conducted by trained military personnel. Although these techniques are less coercive than the enhanced interrogation techniques used to elicit intelligence from Khalid Sheikh Mohammed and other terrorists, some are more aggressive than what is generally permitted to the FBI or police. Most important, these techniques may be used on designated enemy combatants without their consent and without the presence of their lawyers. It is true that a federal judge would be unlikely to permit prosecutors to use statements obtained in this manner as evidence of guilt at a criminal trial. But it is important to keep firmly in mind that, from the intelligence perspective, the purpose of interrogating al-Qaeda terrorists is to prevent future attacks on Americans, not to gather evidence of guilt. There is, of course, no guarantee that Mutallab would provide any useful information even if he were subjected to interrogation as an enemy combatant — but interrogators would at least have a fighting chance. Once he was charged as a criminal suspect, however, he was shielded by the same protections enjoyed by U.S. citizens under our Constitution. Whether interrogators will even get access to Mutallab is now solely up to him and his lawyers. Treating Mutallab as a criminal rather than as an enemy combatant is of a piece with the Obama administration’s decision to transfer Khalid Sheikh Mohammed and other 9/11 terrorists from military custody into the civilian system. These actions demonstrate conclusively that the law-enforcement mentality reigns supreme once again. The risks of trying the 9/11 plotters in civilian court, including possible revelation of classified information and security threats to downtown Manhattan, where the trial will be held, have been well documented and debated elsewhere. But they pale next to the risks of treating newly captured terrorists as mere criminals with all the rights of U.S. citizens. Khalid Sheikh Mohammed has been locked up for nearly seven years with no access to his free compatriots around the world. Whatever information he may not have divulged under interrogation is most likely stale. Not so Mutallab and all the other Mutallabs out there whom we have not yet encountered. These are the next wave of terrorists, and our security depends on having the right tools to obtain the fresh intelligence they may have. It is not too late for the Obama administration to abandon its knee-jerk solution that federal courts are always and everywhere the right answer to terrorist threats. The president could direct the attorney general to dismiss the federal charges against Mutallab and order his transfer to military custody as an unlawful enemy combatant (or, if they prefer, an “unprivileged enemy belligerent”). But time is of the essence, as it will become far more difficult to wrest Mutallab from the civilian system the longer he remains in its custody and the more opportunity his attorneys have to challenge any attempt to transfer him to military custody. There are many difficult questions and tradeoffs our nation confronts in the war on terror, or the “Overseas Contingency Operation,” as it has been renamed by the Obama administration. These questions are deserving of the most considered thought by our leaders and policymakers. We should be concerned when those who are charged with keeping us safe find answering these hard questions all too easy. — Dana M. Perino is former press secretary to Pres. George W. Bush. Bill Burck is a former federal prosecutor and deputy counsel to President Bush. |
