I have a real problem when President Obama declares we are at war with al Qaeda, only to witness the Justice Department according Miranda rights to alleged non-American terrorists captured on U.S. soil.
Case in point -- the haphazard decision to criminalize the case against the Christmas Eve jet bomber Umar Farouk Abdulmutallab.
Ever since Umar Farouk landed in its lap I've been doing a slow burn about the FBI's clumsy turf-driven mishandling of his interrogation.
Now I don't get me wrong. I have enormous respect and admiration for the FBI. It has come a long way since 9/11 to interdict terrorist activities in the U.S., and that merits the untiring admiration of the American people. But we all make mistakes, and in this case, the FBI unilaterally made a rush to judgment that is troubling.
It was bad enough that Embassy Lagos dropped the ball badly when Abdulmutallab's father pressed the embassy to take note of his son's radicalization. I still wonder what really happened at the embassy and why we still do not know what the ambassador did or did not know when the father flagged his son for embassy officials. It was even more troubling when the dots were not connected at the National Counter-Terrorism Center that could have stopped Umar Farouk before boarding his plane in Amsterdam.
But what really irks me is that the FBI took it upon itself to read Umar Farouk his Miranda rights just 10 hours after he was apprehended, whereupon he went stone silent once he was told he was now protected from being interrogated further until he had the benefit of counsel. The FBI asserts it had obtained "actionable intelligence" during his pre-Miranda interrogation. But who is to say the faucet, so to speak, was dry after whatever number of hours the FBI had him under their lamp.
Given the anger from other parts of the U.S. government about how the FBI rushed to shut down Umar Farouk's interrogation it is quite evident that many intelligence operatives believe the FBI acted prematurely.
Just to be clear here, there is nothing in the law that obligated the FBI to end Farouk's interrogation when it did. Indeed, under federal court decisions investigators are permitted to question a suspect without according Miranda rights under the so-called "threat to public safety" exception. And who is to say that al Qaeda was not planning other attacks that Farouk may have known about had he not been read his Miranda rights.
However, Umar Farouk's Miranda rights would not have even come into play had he been turned over to military custody instead of to the FBI in the first place. In fact, the FBI was so concerned that a Miranda defense could have rendered his initial interrogation inadmissible (not least because he was being interrogated while being medicated for his burn injuries) that it dispatched a so-called "clean team" to interrogate him again before granting him his Miranda rights.
The mishandling of Umar Farouk's interrogation raises three issues that must be resolved quickly:
1. The President has yet to put in place a procedure to determine whether foreign terror suspects apprehended in the U.S. should be placed under civilian control or deemed an "unprivileged enemy combatant (UEB) and handed over to the military.
2. The newly created "High Value Detainee Interrogation Group" (or HIG), which was created by the Obama Administration to question high value terrorist targets, was originally created to undertake interrogations abroad and not in the U.S., but here, too, there was nothing to bar the HIG from interrogating Umar Farouk, except for one small fact -- it was not fully operational yet. Clearly, the HIG should be authorized, if not already, to operate on U.S. soil.
3. The FBI chose not to consult either the CIA or the Directorate of National Intelligence before deciding to read Umar Farouk his Miranda rights.
This last fact is what is so disturbing. It is a reminder once again that the FBI and the Justice Department apparently seem hell bent on maintaining their junior high school-style serial turf war against the CIA and the intelligence community, which the 9/11 Commission and its implementing legislation recommendations were supposed to eliminate once and for all.
There are those who assert that Umar Farouk is a felon deserving of criminal due process rights and should not be transferred to military custody I would rather have that decision made by someone who has no dog in the FBI turf fight with the intelligence community.
The fact that that the never ending bureaucratic turf war is apparently still being waged by the FBI and its patrons in the Justice Department at the expense of broader security considerations is but one more reason why the American people are angry with their government. It's one more reason why Mayor Bloomberg decided today to reverse himself and oppose holding Khalid Sheikh Mohammed's show trial in New York.