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ANDREW McCARTHY; THE ATTORNEY AND THE GENERAL

Posted By Ruth King on February 2nd, 2010

National Review Online

Andrew C. McCarthy

NR Contributing Editor

February 2, 2010 4:00 A.M.

http://article.nationalreview.com/423597/the-attorney-and-the-general/andrew-c-mccarthy

The Attorney and the General

General Hayden has it right on Obama’s war-by-subpoena.

Michael Hayden, the former CIA director, penned a superb op-ed in the Washington Post on Sunday. Succinctly, he tallies the wages of having Attorney General Eric Holder make national-security decisions. Unlike the attorney general, Hayden is a real general, and very much worth heeding. He shows that these decisions have been premised on left-wing political calculations that always shortchange intelligence collection and the pursuit of American interests. Holder’s judgments are not based on what America’s safety requires or on what the law maximally permits U.S. intelligence to do in wartime.

As Hayden points out, the policy decisions that President Obama has allowed Holder to make are significant — not only taken one by one, but in their cumulative effect on the ethos of our intelligence agencies. “Intelligence officers,” he writes, “need to know that someone has their back.” After Holder forced the release in April of classified memos prepared by Bush Justice Department lawyers, laying out interrogation tactics and the legal rationale for permitting them, “CIA officers began to ask whether the people doing things that were currently authorized would be dragged through this kind of public knothole in five years. No one could guarantee that they would not.”

The paralysis wrought by this decision transcends the narrow subject of interrogations. All intelligence collection is infected. If you can’t/don’t collect intelligence in a war against a secretive, transnational jihadist network, you stand to lose — and a lot of Americans stand to die. Thus, Hayden concludes, “Some may celebrate that the current Justice Department’s perspective on the war on terrorism has become markedly more dominant in the past year. We should probably understand the implications of that before we break out the champagne.”

In connection with the attempted massacre of 288 Americans in the Christmas airplane attack by al-Qaeda agent Umar Farouk Abdulmutallab, two other points should be made, in the nature of “It’s Even Worse Than He Says It Is.”

First, General Hayden writes, “After the first [brief, 50-minute interrogation] 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.” (Emphasis added.)

Believe it or not, the general is giving the Justice Department too much credit. The FBI did not send in a “clean team” to preserve the prosecution. It did so merely to preserve the statements. In fact, it did so not to preserve an actual confession, but something even more remote: the possible admissibility at trial of any statements Abdulmutallab might make — but had not made — once Miranda warnings were given.

To explain briefly, the FBI was trying to forestall an eventual objection by Abdulmutallab’s defense lawyer: namely, that the agents who obtained the 50 minutes’ worth of non-Mirandized confession were “tainted,” and that this taint would extend to any further, post-Miranda interrogation if they participated. But Abdulmutallab committed his “crime” (really, his act of war) in front of 288 people. It’s a slam-dunk witness case — they actually have about 286 witnesses more than they need.

Any prosecutor would like to have a confession. It usually means a defendant will plead guilty rather than put everyone through the burden and expense of a trial. But no competent prosecutor would need a confession to convict this guy.

Even if you’re a fan of the law-enforcement approach to counterterrorism (and I’m not), the Justice Department in this case was playing with house money. They had to know they did not need a confession. They could have dispensed with Miranda warnings entirely. They could have just kept interrogating Abdulmutallab, knowing the worst that could happen was that statements unnecessary to their prosecution would be ruled inadmissible. Instead, the Holder DOJ so obsessed over the case that everything was done with an eye toward getting any edge, no matter how slight, in the eventual trial. Through that upside-down prism, it is somehow more important to preserve the possibility that we can get an admissible confession we don’t need — to win the game 150–0 instead of just 100–0 — than to get information for such non-trial trivialities as saving American lives.

Second, General Hayden continues, “In retrospect, the inadvisability of this approach seems self-evident. Perhaps it didn’t appear that way on Dec. 25 because we have, over the past year, become acclimated to certain patterns of thought.” He’s clearly right about that, and he goes on to address those patterns of thought. Remember, though, that this is not a done deal. The Obama administration is treating what everyone now agrees was a mistake as if it were a bell that can’t be unrung. That is wrong, and it is irresponsible.

Right this minute, President Obama could designate Abdulmutallab an unlawful enemy combatant (or, as they now call it, an “unprivileged belligerent”) and proceed with his interrogation, unimpeded by a defense lawyer or Miranda restrictions. It is a power he has had every minute since Abdulmutallab’s capture five weeks ago. The case would still be there, and it would still be a slam-dunk, whether it were tried two, three, or five years from now. The only potential downside for the case is no downside at all: Prosecutors would not be able to use any statements he makes.

People can blame the attorney general, and there certainly is plenty for which he should answer. But Holder is a sideshow. These decisions are presidential decisions. The fact that Obama evidently delegates them to Holder does not change that. The policy of surrendering enemy combatants to the civilian-justice system and giving them all the rights of the American citizens whom they are trying to kill is an Obama policy being implemented by Holder; it’s not a Holder policy.

Moreover, we’re not merely rehashing past mistakes. This is an ongoing problem. After four months of al-Qaeda training in Yemen, Abdulmutallab has valuable information. President Obama still has the legal means to get it. Every day he fails to act — every day he elevates trifling trial strategy over vital intelligence collection — is a new, reckless failure to secure the nation.

— 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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