By Daphne Eviatar, Senior Associate, Law and Security
Ever since the failed attempt to blow up a Northwest airline carrier on Christmas Day, critics have been pressing to militarize the treatment of all terrorism suspects and deny them the basic due process rights provided by the law.
On Tuesday, bills were introduced in both the House and the Senate to require the Attorney General to consult with the Director of National Intelligence, the Director of the National Counterterrorism Center, the Secretary of Homeland Security, and the Secretary of Defense before filing any civilian charges against a foreigner suspected of engaging in or materially supporting terrorists, regardless of where he's arrested. Senators Joseph Lieberman of Connecticut and Susan Collins of Maine have also written to Attorney General Eric Holder urging him to transfer the failed Christmas bomber, Umar Farouk Abdulmutallab, to military custody. And on Wednesday, six Senators wrote to Holder "in light of recent events" urging him not to try the four 9/11 suspects in a federal civilian court.
Today, the Wall Street Journal in its lead editorial calls on Congress to strip the federal courts of jurisdiction over terrorism cases altogether.
Political posturing to look tough on terrorism is not a new strategy for federal lawmakers. But the level of disingenuousness involved in this particular instance is genuinely striking.
After the State of the Union speech Wednesday, Virginia Governor Bob McDonnell complained that "this foreign terror suspect was given the same legal rights as a U.S. citizen" - as if foreigners have not always been entitled to Constitutional due process when brought to trial in the United States.
At hearings last week, Sen. John McCain (R-Arizona) called the decision to place Abdulmutallab in the federal judicial system "a terrible, terrible mistake when it's pretty clear that this individual did not act alone."
Sen. Lieberman called it "a kind of 'Alice in Wonderland' turning of the world of common sense on its head." And former New Jersey Republican Governor Thomas Kean, who led the investigation into the 9/11 terrorist attacks, said he was "shocked and upset" that Abdulmutallab was read his rights before being fully questioned.
Meanwhile at the National Review, Bill Burck, former Deputy Counsel to President George W. Bush and a former federal prosecutor, was "startled" by Dennis Blair's and Michael Leiter's admissions last week that "they were never even consulted about the decision" (his emphasis, not mine) to let the FBI handle the interrogation.
But is the FBI's handling of Abdulmutallab, arrested at a Detroit, Michigan airport, really so shocking?
In fact, as these critics surely know, every single terrorism suspect arrested in the United States during the eight years of the Bush administration after September 11 was initially interrogated by the FBI, as was Abdulmutallab. Ultimately, every one that was tried had their trial in a civilian federal court. Only two individuals arrested in the United States were ever transferred to military custody - Jose Padilla and Ali Saleh Kahlah al-Marri. And in both cases, after years in military detention, the men were charged as ordinary criminals and accorded a civilian trial.
More than 200 terror suspects have been interrogated and tried this way since Sept. 11, including Richard Reid, the "shoe bomber," in the case most comparable to Abdulmutallab's.
So as Senator Claire McCaskill pointed out a hearing last week, to start turning all terror investigations in the United States over to the CIA or the military would be a drastic departure from longstanding precedent.
The critics' mantra since Christmas that offering terror suspects Miranda rights after an initial intelligence interrogation by the FBI dooms the chances of obtaining useful intelligence is also wholly unsubstantiated. Last week Senator Jeff Sessions (R-Ala.) chastised FBI Director Robert Mueller for allowing FBI agents to read Abdulmutallab his Miranda rights. But as Senator Sheldon Whitehouse (D-RI), a former U.S. Attorney, pointed out, an actual review of real-life terrorism prosecutions reveals that "very successful interrogations have been conducted and very significant intelligence information has been obtained from suspects who have been Mirandized." In fact, sometimes giving Miranda warnings "is actually a part of an interrogation plan for that particular subject," he said.
Cooperation of suspects arrested in the U.S. criminal justice system has led to invaluable intelligence about the existence of al-Qaida sleeper cells within the United States, training camps in Afghanistan, how to safely dismantle the device used by Richard Reid (the shoe bomber) and details regarding some of the most high-level terrorism suspects, such as Khalid Sheik Mohammed and Hambali, the mastermind of Jemaah Islamiah, a terrorism network in Southeast Asia.
Previous Senate Judiciary Committee hearings have also revealed that FBI-led interrogations have actually been more effective than the far more aggressive ones conducted by the CIA and Defense Department.
In any event, a detainee arrested in the United States and held in military custody is still entitled to a legal representation.
Meanwhile, civilian trials have been far more successful than military commissions, which have won only three convictions in eight years, as compared to 195 in civilian criminal court.
None of this is to suggest that the Bush administration was 'soft on terror.' But it wasn't very smart on terror, either. Not only haven't most military detainees been convicted, but the detention of hundreds of suspects for years without charge or trial created a national security nightmare for the United States. Hundreds of Muslims were subjected to unlawful and ineffective "enhanced" interrogation techniques devised by inexperienced and unprofessional psychologists with no background in intelligence gathering. The use of those techniques fomented so much anger in the Muslim world against the United States that even President Bush and former presidential candidate John McCain eventually acknowledged that the Guantanamo Bay detention facility had become a liability for the United States and should be closed.
FBI Director Mueller made clear last week that the FBI brought in high-level interrogators who first questioned Abdulmutallab for intelligence purposes, and obtained valuable information, before reading him his Miranda rights. That's part of FBI protocol for handling terror suspects. But to forbid the United States from trying terrorists as criminals is to force the US government to continue down the same reckless course that's landed us in our current national security quagmire.
If there was one thing Senators agreed on at their hearings last week, it was that the government needs a rational way of deciding where and how to interrogate and try terror suspects, based on input from top terrorism specialists and interrogators. Administration officials have promised to create just that. But if the administration bows to political pressure and starts subjecting every terror suspect to CIA interrogation and indefinite military detention, it's only going to exacerbate the current conundrum.
The U.S. Supreme Court has said the government can detain "enemy combatants" - now called "unprivileged enemy belligerents" -- captured on a battlefield for the duration of a military conflict. But the court in the Hamdi case was talking about the battlefield in Afghanistan; it did not suggest that the airport in Detroit could be a battlefield. To expand the definition that broadly would allow the government to get around the Constitution in almost any criminal investigation by simply declaring the target a potential terrorist. And what would prevent the government from throwing a U.S. teenager surfing Jihadi web sites at home in New Jersey into coercive interrogation and years of indefinite detention? Could that possibly comport with the U.S. Constitution, let alone international law?
Members of Congress pressing for legislation that would require the government to respond to all potential terror cases militarily are stepping onto a slippery slope they'll likely regret if they can convince their colleagues to join them.
In his State of the Union speech, President Obama called on Congress to "put aside the schoolyard taunts about who is tough" and "reject the false choice between protecting our people and upholding our values."
He could have gone further and said that rejecting our values actually increases the danger to Americans. Guantanamo Bay was bad enough; hundreds of jihadi suspects subjected to secret interrogations and indefinite detention on U.S. soil is hardly an intelligent way to enhance national security.