By Tom Parker, Policy Director for Terrorism, Counterterrorism and Human Rights
Last week Attorney-General Eric Holder wrote to Senate minority leader Mitch McConnell about the circumstances surrounding the arrest of underwear bomber Umar Farouk Abdulmutallab on Christmas Day 2009.
A plainly exasperated Holder sought to counter the hysterical reaction that greeted the decision to handle Abdulmutallab's case within the criminal justice system with a few pertinent facts and a solid dose of common sense.
His letter is well worth reading for the insights it offers into the choices facing Americans as they seek to respond to future terrorist attacks.
The debate is not about whether or not the Obama administration has somehow applied a less robust approach to the underwear bomber than the Bush administration did to similar incidents.
It has not, despite Rudy Giuliani's selective memory loss. Shoe bomber Richard Reid was treated precisely the same way in 2001. Both administrations allowed the law to take its course.
The more important debate is whether or not the law enforcement paradigm is the best method for handling such events. It is.
Much has been made in some quarters about the need to extract actionable intelligence without delay. This - much like that old chestnut, the ticking bomb scenario - is a meaningless rhetorical device routed in TV drama, not reality.
The idea that an apprehended suicide bomber like Abdulmutallab is likely to possess much actionable intelligence - that is, intelligence requiring an immediate operational response - is patently absurd.
Terrorist groups know that there is a fair chance any operation will fail and that their operative could be detained alive. Indeed, Al Qaeda has seen as many plots fail as it has succeed.
As a result, suicide bombers are typically sequestered with a handler at a safe house for days, or even weeks, before an attack. This is both to bolster their resolve and to inoculate the rest of the network from blowback after the operation.
As soon as the operation is set in motion the safe house will be sanitized and abandoned. The handler will escort his charge to the point of attack and then disappear.
Someone expendable like Abdulmutallab is highly unlikely to know the whereabouts of Al Qaeda's leadership or possess meaningful insights into the group's current operations.
However, he might conceivably have knowledge about a secondary device or another aspect of the operation already underway.
The public safety exemption to the Miranda caution recognized by the courts allows law enforcement officials to question a suspect immediately on capture without advising him of his rights if they have reason to believe public safety is at risk.
In the longer term, Abdulmutallab will likely be able to provide useful background on Al Qaeda's recruitment methods and networks in London, Yemen and Nigeria. He should also be able to provide useful information about the group's modus operandi and tradecraft.
This is the sort of information best drawn out of him over time by experienced debriefers going over his story time and time again. This process works best with his cooperation.
Adversarial exchanges driven by coercion are not conducive to discursive responses. The brass knuckle approach favored by Dick Cheney is less likely to produce results than an old-fashioned law enforcement interview.
Abdulmutallab has no incentive to cooperate with investigators locked up indefinitely in Guantanamo. By contrast, in the criminal justice system investigators have plenty of leverage to encourage cooperation.
The Attorney General notes in his letter that Abdulmutallab has provided intelligence to FBI investigators since being charged. In other words, the justice system works. On December 25th, 2009, America got it right.