RUTHFULLY YOURS

ANDREW C. McCARTHY

Will the case of Umar Farouk Abdulmutallab, the terrorist who attempted to murder the 288 passengers and crew aboard Northwest Flight 253 on Christmas Day, inspire a national epiphany? Will Americans finally grasp how insane it is to regard counterterrorism as a law-enforcement project rather than a matter of national security?

In the last paragraph of its December 30 report on the attack, the Washington Post got around to telling its readers that Abdulmutallab had clammed up. After giving the FBI some information in the early stages of his interrogation, he ceased cooperating, on the advice of his defense lawyers. “Authorities are holding out hope that he will change his mind and cooperate with the probe,” the paper reported. The Post, like Pres. Barack Obama, Attorney General Eric Holder, and many of those now serving as national-security officials in the Obama administration, was a persistent critic of Bush-era counterterrorism measures. It was, however, embarrassed by the rash of snarky criticism inspired by its naïve-sounding “holding out hope” formulation, and the editors purged that language from later editions of the story. But the original version had it right: Under civilian justice protocols, authorities can do no more than hope for Abdulmutallab’s cooperation. And that is why the civilian criminal justice system is no place to handle these cases.

While we’re hoping for the cooperation of its operatives, al-Qaeda’s thriving franchise in Yemen (al-Qaeda in the Arabian Peninsula, or AQAP) is busy training hundreds of terrorists to carry out strikes against the United States. Abdulmutallab spent significant time in Yemen and dealt with AQAP at a very high level. That makes him the kind of source that an intelligence agent dreams about. If you were working in counterterrorism, you’d want to interrogate him for weeks — and you’d want to keep him around for even longer than that, so you could return to him, time and again, as you gathered new information: surveillance photos with new faces to identify, recorded conversations with new voices to recognize, intercepted e-mails with new codes to break.

When I was a federal prosecutor, we had access to high-ranking Mafiosi — turncoats who continued providing valuable intelligence on the New York crime families for several years after they’d been flipped. It’s not just a matter of exhausting sources’ current operational intelligence. They are insiders, and they know more than our agents and prosecutors do about how these illicit enterprises work. Even when their information about plots is no longer current, they can help you make sense of new information, cutting through complications that you could never untangle on your own.

But we can’t talk to Abdulmutallab, because the Obama administration has decided to make the criminal justice system America’s default response to terrorism. Let’s run through what that means in concrete terms: When agents take a criminal suspect into custody, Miranda mandates that they tell him, before they ask a single question, that he has an absolute right not to speak to them — and that he probably shouldn’t speak to them, because what he says could be used against him in court. He is informed that he has a right to legal counsel and that he is free to have his lawyer present at any questioning. He learns that if he can’t afford a lawyer, the government will get him one at public expense. All of this diminishes the government’s ability to interrogate the likes of Abdulmutallab.

Umar Farouk AbdulmutallabUPI/U.S. Marshals
The Federal Rules of Criminal Procedure also require that agents take an arrested person, without undue delay, to the nearest available magistrate. In practice, that means within about six hours. Think about what that meant in this case: Our national-security apparatus had suffered another intelligence debacle, so the government’s first priority after Abdulmutallab’s capture was to figure out who had known what when, why it hadn’t been communicated to the right people, and how to protect the reputations and careers of those who were responsible. In the interim, FBI agents in Detroit were tasked with interrogating Abdulmutallab. The Detroit agents were not chosen because they had special expertise about AQAP. They caught the case because they happened to be on the scene.

There is no doubt that they had insufficient information at their fingertips in those critical first hours to conduct an effective interrogation. As a practical matter, when a crime is committed on Christmas Day at the start of a weekend, the six-hour interrogation window can be stretched. But it can’t be stretched by much, particularly in a high-profile case involving a defendant with a wealthy family, one who can hire counsel and doesn’t need to wait for the government to get around to calling whatever legal-aid lawyer is on duty. So the defense lawyer is injected into the situation while the interrogating agents, who certainly don’t know Abdulmutallab and may not know AQAP from a hole in the wall, are scrambling to pull together what is in the government’s files. By the time they have gotten themselves sufficiently up to speed to do an extensive, informed interrogation, the subject has started talking to his lawyer and stopped talking to investigators.

The purpose of promptly bringing a defendant before the first available magistrate is to conduct what’s called a “presentment.” Protecting the defendant’s rights, giving him the best possible shot at beating the rap, is a central imperative in all proceedings in the criminal justice system. All presumptions are in favor of the accused. At the presentment, the judge examines the charges to make sure there was probable cause for the arrest. He ensures that the defendant knows why he is being held, makes certain that counsel is in place, and reminds the defendant that he is not required to make any statements to the police and that he should probably stop talking if he has spoken to them already. The assignment of counsel is usually the end of meaningful interrogation, and Abdulmutallab’s case has obviously reached this point.

What has been lost here is not an opportunity to use waterboarding or other controversial forms of enhanced coercion on Abdulmutallab, but the chance to conduct simple, lawful questioning of an important and knowledgeable terrorist operative who is presumably in possession of useful information about AQAP. Treating a detainee as an unlawful enemy combatant means regarding him as a prisoner of war, but because a terrorist operative has targeted civilians and has not complied with other law-of-war requirements, he is not protected by Geneva Conventions limitations on interrogation — we don’t have to content ourselves with “name, rank, and serial number.” It is permissible to question him without the involvement of a lawyer. This is not to say that we should abuse him physically. We should, however, hold him for an extensive period of time, make him feel helpless and dependent, and thereby pressure him to tell us what he knows. Many jihadists will have been trained by al-Qaeda to resist, so the process may take a long time.

The criminal-justice approach takes away all of this leverage. Giving a prisoner both an attorney and a civilian trial empowers him. The lawyer will advise him that the government needs him as much as he needs the government. He’ll be counseled that he should not speak unless prosecutors agree to drop charges, agree not to use his statements against him, or agree to send him to a nice minimum-security jail (or, perhaps, deport him to his home country). Also on his lawyers’ advice, he will demand that the government agree to give him various comforts and benefits, and in a capital case he will certainly demand that they agree to drop the death penalty in exchange for his cooperation. His lawyer will tell him, in essence, “Look, these guys had Binyam Mohammed in custody — a guy who tried to mass-murder civilians, just like you — and they let him go with no charges. Don’t be afraid of them. If you tough this out and play your cards right, maybe they’ll let you go too. And at the very least they’ll agree to all sorts of accommodations.” It’s not for nothing that, upon being captured in Pakistan, 9/11 mastermind Khalid Sheikh Mohammed taunted American agents that he’d talk to them — in New York, with his lawyer.

The prosecution will not want to agree to any accommodations and should not agree to them in a national-security case. Once you accommodate a defendant on anything, the psychological ground shifts. He realizes that he is in control. He sees that his information results in your concessions. He is motivated to hold back the most valuable intelligence in order to wangle the dearest benefits. And if he forgets that, his trusty attorney is there to remind him.

You can take my word on that, but you don’t have to: Listen to Michael Ratner, head of the Center for Constitutional Rights, the leftist outfit that — when not running around Europe trying to get Bush officials indicted for war crimes — coordinated representation for all the Gitmo detainees after the federal courts intruded on the military’s detention of enemy combatants:

We have over one hundred lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder [for the U.S. military] to do what they’re doing. You can’t run an interrogation and torture camp with attorneys. What are they going to do now that we’re getting court orders to get more lawyers down there?

Ratner is absolutely correct in this assessment, but there’s an important caveat. The courts have not ruled that enemy combatants are entitled to counsel immediately. They can be held and interrogated for a long time before a lawyer is permitted to intervene. Moreover, even if a court tried to interpose a lawyer right after capture, the president could tell the court to mind its own business. That’s precisely what FDR did in 1942, warning the Supreme Court that he would ignore any ruling (in Ex Parte Quirin) in which the justices presumed to interfere with the commander-in-chief’s treatment of eight Nazi saboteurs captured in New York and Chicago.

The Constitution makes the political branches responsible for the conduct of war. The courts have no role in war under the Constitution; they’ve managed to usurp one over the last nine years only because the political branches have been too craven to stand up to them. Obama, even worse, has abdicated an important part of his constitutional duties by voluntarily submitting a high-value wartime captive to the control of judges. In addition to making certain that Abdulmutallab knows he doesn’t have to tell investigators anything, this means that the next thing he gets is a bail hearing. Presumably, bail will not be a possibility in Abdulmutallab’s case. The evidence that he is a “danger to the community” and a “risk of flight” (the requirements for pretrial detention) is overwhelming. There is, however, a heavy price that must be paid for the denial of bail: Under the Speedy Trial Act and the Sixth Amendment — provisions from which Abdulmutallab, a Nigerian national, will benefit in the civilian system — a pretrial detainee must be indicted within ten days unless his lawyers and the prosecutors agree to extend this deadline.

Once a rushed indictment is filed, the case is assigned to a judge. After that, it’s all about the trial: discovery, subpoenas, motions to suppress evidence, etc. Intelligence gathering becomes a low priority, and interrogation a distant memory. The government’s resources are concentrated on the litigation, and its responsibilities include making sure that the defendant has all the information he needs to defeat the charges. Because this is a criminal trial, he’s presumed innocent — the leitmotiv of our civilian justice system being that we’d rather see many guilty men go free than risk having a single innocent man wrongly convicted. The accused gets every bounce of the ball. This is a very fine way to conduct law enforcement, but it is a breathtakingly irresponsible way to approach counterterrorism.

Even if President Obama remains committed to the civilian criminal justice system as the default for terrorists’ prosecutions, there is no reason Abdulmutallab or any other arrested terrorist has to be handed over to that system immediately upon capture. Jose Padilla, the so-called dirty bomber, was captured in May 2002 upon his arrival in Chicago, whence he had been dispatched by KSM to help carry out a wave of post-9/11 attacks. He was held as an enemy combatant for nearly four years, during which time he was extensively interrogated and surrendered valuable intelligence. Finally, in 2006, he was turned over to the civilian criminal justice system to face terrorism charges. He complained that the indictment should be dismissed because of what he portrayed as the government’s misconduct in detaining him as an enemy prisoner. The courts rejected this argument, even though, unlike Abdulmutallab, he is an American citizen. He is now serving a lengthy prison sentence.

The Supreme Court reaffirmed military detention in 2004 in the case of Yaser Esam Hamdi, another American citizen. To be sure, Hamdi was apprehended overseas in battlefield circumstances. But Ali Saleh Kahlah al-Marri, a Qatari national (and therefore, like Abdulmutallab, an alien combatant), was arrested in the U.S. in December 2001 and detained as a military prisoner for over five years. In 2009, he was indicted and pleaded guilty. It was no defense that he’d been confined and questioned for years.

The first duty of government is the security of the governed. In wartime, the first duty of the commander-in-chief is to quell the enemy, not to prosecute its operatives. The latter is not unimportant, but it is a decidedly lower priority than obtaining intelligence and thwarting attacks. And these worthy goals do not have to be in tension: We can effectively interrogate, gather intelligence, prevent terrorist attacks, and prosecute terrorists. All that is necessary is to shift from a criminal-justice model to a law-of-war model.

President Obama, at least occasionally, acknowledges that we are a nation at war and that Congress has authorized military operations against al-Qaeda. Consequently, when an al-Qaeda operative such as Abdulmutallab is arrested, our default process should be military detention and interrogation. Only when that process has run its course — the length of which will vary depending on the prisoner’s place in the terrorist hierarchy — should we worry about prosecution.

Those prosecutions should be by military commission. But military detention does not preclude a subsequent civilian trial, if that is the course Obama insists on. True, prosecutors may not be able to use interrogation statements made without Miranda warnings as evidence, although even that is an open question for statements made voluntarily. But in a case like Abdulmutallab’s, in which there are hundreds of witnesses and damning forensic evidence, we don’t need his statements to convict him.

We just need them to save lives.

Mr. McCarthy is a senior fellow of the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).