Still Time to Get It Right

But only if Obama reverses course on Abdulmutallab.

By Andrew C. McCarthy

‘Why not treat him as an enemy combatant?” Fox News Sunday host Chris Wallace was pressing John Brennan, President Obama’s top counterterrorism adviser. Umar Abdulmutallab had just tried to kill nearly 300 people aboard Northwest Flight 253 as it descended toward Detroit on Christmas Day.

The Obama administration had immediately decided to hand the al-Qaeda jihadist over to the civilian justice system for trial. And the word “decided” gives them too much credit, suggesting that there had been some real deliberation, some meaningful expenditure of brainpower. In fact, there was no “decision” in Abdulmutallab’s case. There was never any thought given to anything other than treating him as a criminal defendant. Wallace pointed out to Brennan that the administration could have detained him as an enemy combatant — meaning that, legally, he could have been interrogated at length without Miranda warnings and without the interference of a defense lawyer. “You still have the right to treat him as an enemy combatant,” Wallace added. “Why not do that?”

In response, Brennan gave away the game: “The Department of Justice makes these determinations about what’s the best tool to use. And in this instance, we felt as though it [i.e., criminal prosecution] was the best way to address Mr. Abdulmutallab’s case.” Brennan went on, absurdly, to suggest that intelligence-gathering hadn’t been compromised, because we can still try to get information from the terrorist. This is true — if we are willing to plea-bargain the case, if he and his defense lawyer deign to be cooperative, and if all of that happens before any actionable intelligence goes stale.
With Brennan’s disturbing words still fresh, there was justifiable hue and cry in Congress this week over similarly mind-boggling testimony from top Obama-administration national-security officials before the Senate Homeland Security Committee. One issue is that Abdulmutallab was not added to the no-fly list despite mounds of information the intelligence community had amassed over the last several weeks showing that he was an al-Qaeda weapon about to be launched at us. The Weekly Standard’s Steve Hayes has uncovered the intelligence community’s failure to transmit the information it had collected to the FBI agents on duty in Detroit on Christmas. Consequently, in the brief window of time they had to question Abdulmutallab — before someone decided it was time to give Miranda warnings, which predictably cut off questioning — the interrogators did not have the ammunition needed to conduct an effective interview.

Abdulmutallab had spent about four months in Yemen, where there are hundreds of al-Qaeda operatives plotting attacks against the United States. He knows that dozens of others were being trained to execute mass-murder attacks like the one he tried to pull off. He knows where the training camps are, who the bosses are, and maybe even what other targets are being contemplated. He could tell us whether he had help from terror facilitators overseas when, laden with incendiary chemicals, he boarded flights under dubious circumstances. Based on what he’s seen and heard, he might be able to shed light on al-Qaeda’s intricate relationships with elements of the Yemeni government.

To have failed to interrogate this terrorist effectively is thus inexcusable.

And more salt was thrown on the wound by Dennis Blair, the national intelligence director, lord of an already bloated fiefdom created just five years ago, at the insistence of the 9/11 Commission, to help the government “connect the dots” better. A year ago, at the start of his term, President Obama ordered the creation of a “high-value interrogation group” (HIG), which, Blair said, was established “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.” But HIG was not invoked in Abdulmutallab’s case — because, as Blair conceded, it never occurred to the administration to apply it to terrorists captured inside the United States (apparently, it’s just for Mirandizing overseas prisoners). And, as it turns out, after a year the ballyhooed HIG is not even fully operational yet.

Blair wasn’t consulted on Abdulmutallab’s case. Neither, apparently, was FBI director Bob Mueller. All the decisions were made by agents and prosecutors on the ground. So who decided to take the case to the civilian system? Whose call was it to Mirandize Abdulmutallab? Whose heads ought to roll over this tragicomedy of errors?

All worthy questions, but they miss the main point. The germane decisions are not the ones that were made in Abdulmutallab’s case. The big decision is the one made at the beginning of the Obama administration, by the president and nobody else: It is the default position of the administration that law enforcement is the preferred approach for dealing with international terrorism. The standing rule is that, if a person is apprehended in the United States — even if he is an al-Qaeda operative unleashed here to kill massively — he is to be regarded as a criminal defendant, not as a prisoner of war.

We are at war, yet it’s the attorney general — not the commander-in-chief, not the secretary of defense — who decides whether someone is an enemy or not. And under Obama’s approach to counterterrorism, the first priority is prosecution. Nothing is to be done — especially not aggressive interrogation — if it would compromise the terrorist’s due-process rights, be frowned on by federal judges, or otherwise interfere with “bringing the ‘defendant’ to justice.” And so, despite all the criticism of how the Christmas bomber was handled, he is still being treated as a defendant. Obama hasn’t reversed course and designated him an enemy combatant. The interrogation has ceased, and the case goes on.

If you’re going to get angry over something, get angry over that. It’s going to cost lives.
— 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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