Defending the Indefensible

Treating the Christmas bomber like a common criminal was a national security blunder.

After being roundly condemned for charging Umar Farouk Abdulmutallab as a criminal defendant – a decision that granted the would-be Christmas bomber the right to remain silent after a brief 50-minute interrogation session – the Obama administration this week went on the offensive against its critics. Not only is the abrupt end to Abdulmutallab interrogation not the intelligence failure it appears to be, the administration insists, but it actually vindicates its view of terrorism as a criminal matter.

The administration’s new line is that Abdulmutallab has been cooperating with investigators since last week and has even provided intelligence in several ongoing terrorism investigations. This is, to be sure, welcome news. Yet the administration’s decision to read Abdulmutallab his Miranda rights, instead of treating him as an enemy combatant under the laws of war, remains deeply troubling. It also epitomizes the shortcomings of the administration’s view that the criminal justice approach is the most effective one against the country’s terrorist enemies.

If the administration is to be believed, Miranda rights and other criminal protections are no obstacle in terrorism investigations. In a letter to Republican Senator Mitch McConnell yesterday, Attorney General Eric Holder argued precisely this point, citing as an example Operation Crevice, in which British police busted up a Pakistani al-Qaeda cell. In the course of that investigation, Holder notes, “law enforcement agents gained valuable intelligence regarding al-Qaeda military commanders and suspects involved in bombing plots in the U.K. from a defendant who agreed to cooperate after being advised of, and waiving his Miranda rights.”

This invites the obvious question: What if the defendant had not waived his Miranda rights? Indeed, that is what initially happened in Abdulmutallab’s case. Informed of his right to remain silent, he promptly chose to exercise it. The reason he has since waived that right seems entirely fortuitous. Following his failed bombing attempt, several FBI agents traveled to Nigeria to plead with Abdulmutallab’s family for assistance. Ultimately, the family traveled to the U.S., where they persuaded Abdulmutallab to cooperate.

Yet this is not a counterterrorism strategy; it’s sheer luck. It’s lucky, for instance, that the Abdulmutallab family – including his father, who first warned U.S. authorities about his son’s extremist extracurriculars – disapproved of his jihadist ambitions. More typical in the Muslim world are families who, like many Palestinians, praise their children’s choice to become “martyrs” or who, like the parents of lead 9/11 hijacker Mohammed Atta, deny the overwhelming evidence that their children are terrorists. Had the Abdulmutallabs been more representative of the Islamic world, their son might never have cooperated.

That would have left the administration with few options. With harsh interrogation techniques already banned under the Bush administration – a position supported by the current White House – Abdulmutallab would have been free to withhold intelligence from interrogators.

If Abdulmutallab’s cooperation is not a convincing argument in favor of the administration’s criminal justice strategy, what is? Attorney General Holder has advanced two, both of them diversionary.

The first is that several terrorists have been successfully prosecuted under the criminal justice system. Among Holder’s examples is “shoe bomber” Richard Reid, who is serving a life sentence despite being read his Miranda rights within minutes of being removed from the transatlantic flight he had hoped to blow up.

Reid isn’t a particularly strong example, however. One reason the Bush administration pressed criminal charges against Reid instead of charging him as enemy combatant is that the military commissions system for dealing with enemy combatants did not yet exist. That is no longer the case. Moreover, Reid’s conviction was obtained in no small part because he chose to plead guilty.

Still, it’s hard to hard to dispute that the criminal justice system has in the past secured the convictions of terrorists. But at what cost? What intelligence information was lost in the aftermath of the 9/11 attacks because of the decision to Mirandize Reid? For that matter, what could intelligence services have learned had they been able to interrogate Abdulmutallab at length sooner? As the administration admits, he has been silent for nearly a month. In light of reports by senior U.S. intelligence agents this week that al-Qaeda is expected to attack the United States in the next three to six months, that silence – and the resulting gap in knowledge on al-Qaeda activity – could prove perilous.

Holder’s other argument is that no one in the intelligence community objected to the government’s decision to pursue criminal charges against Abdulmutallab. But it’s a stretch to see such silence as an endorsement. What else could one expect under an administration that has repeatedly floated the possibility of criminal investigations against CIA officers for carrying out interrogations of terrorist detainees? If the intelligence agencies have not challenged the Justice Department on Abdulmutallab, it may be because they do not want to be its next target.

That Abdulmutallab is now cooperating with intelligence agencies is encouraging. But it’s important to note that this is happening despite – not because of – the administration’s wrongheaded decision to charge him as a common criminal. It’s all well and good for the administration to claim that it will use all tools, from the criminal justice system to intelligence gathering, to keep the country safe. But the beginning of wisdom on national security is the recognition that treating terrorists as common criminals can diminish the very intelligence this critical job demands.