THE BLOG
04/14/2010 05:12 am ET | Updated May 25, 2011

The Underwear Bomber Laid Bare

In response to recent criticism about the FBI's handling of the Underwear Bomber's interrogation, administration officials disclosed his decision to begin cooperating with federal authorities. This unorthodox disclosure of Abdulmutallab's cooperation raises serious concerns about this Administration's handling of cooperating witnesses in terrorism investigations.

The Washington Post reported that a senior White House official sat down with reporters last week to describe the elaborate efforts of the FBI and CIA to get Abdulmutallab talking again. This rendition of events sounded like an old Bing Crosby and Bob Hope On the Road movie. On New Year's Day FBI agents went to Lagos, met some CIA agents, found some of the Abdulmutallab kin, traveled to Abuja, found a few more family members, and by January 17th convinced two unnamed relatives to return with them to Detroit.

Abdulmutallab's lawyer appropriately refused to comment on reports of her client's cooperation but acknowledged that negotiations with DOJ officials were proceeding. Administration officials responding to these reports confirmed that Abdulmutallab's previous decision to protect himself from self-incrimination had been reversed as a result of skillful interrogation techniques, not water boarding or sleep deprivation, and that he was providing valuable intelligence on a daily basis. What they failed to tell reporters and members of Congress, however, is that the public report of Abdulmutallab's cooperation endangered the lives of his family and friends and may have rendered virtually inoperable whatever covert investigative operations could have been launched as a result of the information he was providing.

I can only imagine the panic that gripped the FBI case agent's heart when he heard the media was reporting that Abdulmutallab had become a cooperating defendant. Every experienced investigator knows leaking the fact of cooperation is tantamount to leaking its contents to those who plotted with Abdulmutallab. If he was one of the agents who'd flown to Nigeria on New Year's Day, he'd already met some of the people whose lives were now in jeopardy. And if he was preparing plans to infiltrate Yemeni training camps or wiretap the phones of previously unidentified terrorists, he saw the opportunity for these and other possible covert operations disappear like a puff of smoke.

Hardly an FBI retirement party goes by without one of my former colleagues recalling the time when drug kingpin Nicky Barnes or Gambino underboss Salvatore Gravano almost got made before their cooperation became known while being transported from lock-up to safe house to prosecutor's office and back again. Time was when the need for secrecy about the identities of confidential informants was so important that FBI agents were only required to disclose their identities to the FBI Director or his designee. The need to protect the identity of a cooperating witness should be evident but certainly anyone who has watched the TV show In Plain Sight and seen US Marshall Mary Shannon (no relation) question the meaning of her life's work after watching one of the individuals under her protective custody killed realizes the lives of cooperating terrorists and their families, just like the lives of Mafiosi and drug lords and their families, are endangered by any disclosure of their decisions to break omerta and turn state's evidence.

After 9/11 Attorney General Ashcroft announced a new protocol for the care and feeding of confidential informants designed to regularize what was a very peculiar and difficult relationship to begin with. Those guidelines remind federal agents and prosecutors they are never to disclose the identity of a confidential informant to third parties unless ordered by a court to do so. The introduction to these Guidelines note they do not apply to cooperating defendants unless law enforcement authorities determine it is necessary. Necessity isn't spelled out in Ashcroft's guidelines but certainly the protection of family members and ongoing and potential undercover operations against terrorists would have justified keeping Abdulmutallab's cooperation secret.

Attorney General Holder and others maybe are correct in noting that torture isn't the right way to turn most criminals, even terrorists, into cooperating witnesses. The dance between the accused and his accusers is a delicate one; at the beginning neither side knows what event or question or consideration will tip the balance in favor of the government. But once this process begins it will not succeed unless mutual trust is developed and both sides believe they are working toward the same end. In fact, the successful interview of anyone requires that the witness believe the questioner is honest and cares as much about the witness' wellbeing as the information he is providing.

Baby-faced Abdulmutallab has learned a couple of very hard lessons these last few weeks: suicide bombing isn't easy and the US Constitution doesn't offer as much protection as he may have thought.

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