Should Detroit suspect get military or civilian trial?

Originally published by NPR, 1/4/10

MICHELE NORRIS, host: The man who tried to blow up a plane on Christmas is at the center of another debate. Umar Farouk Abdulmutallab is being held in federal prison in Michigan and is due to appear in court on Friday. The Obama administration has decided to pursue the case in federal criminal court, not through a military commission, and that decision has both supporters and detractors. We’re going to hear now from both sides on that question.

MELISSA BLOCK, host: David Laufman is a former assistant U.S. attorney in the Eastern District of Virginia, who prosecuted several terrorism cases there. He also worked in the Justice Department helping to coordinate the department’s response after 9/11. Welcome to the program.

Mr. DAVID LAUFMAN (Former Assistant U.S. Attorney, Eastern District of Virginia): Thank you.

BLOCK: And we’re also joined by David Rivkin, co-chair of the Center for Law and Counterterrorism at the nonprofit Foundation for Defense of Democracies. He worked in the Justice Department under President George H.W. Bush focusing on legal policy and intelligence oversight. Welcome to you.

Mr. DAVID RIVKIN (Co-Chair, Center for Law and Counterterrorism, Foundation for Defense of Democracies): Good to be with you.

BLOCK: And David Laufman, let’s start with you first. You prosecuted terrorism cases yourself, as I mentioned, and you say federal criminal court is the proper venue for this case. Why is that?

LAUFMAN: Well, prosecution of this individual in a criminal justice system is consistent with a vast bulk of experience of how individuals accused of committing terrorism offences has been handled, going back far beyond the Obama administration into the first George Bush administration and before that. It is by far the norm for the government to proceed by way of criminal prosecution rather than in the more recent military commission system.

BLOCK: So you say president is that that would be how this is handled.

LAUFMAN: Correct.

BLOCK: David Rivkin, you disagree. You say that Abdulmutallab should have been charged as an enemy combatant, should’ve been pursued through military courts.

RIVKIN: Right, not because of lack of precedent. My colleague is absolutely right. That’s the way things have been done most of the time. But let’s consider several factors. First of all, this is a poster child for a military commission. This is an individual who immediately upon being detained indicated he was a member of al-Qaida. This is an individual who possesses, if at all, valuable operation intelligence – not strategic intelligence. He’s not Osama bin Laden.

His intelligence is of vanishing value, it’s essential to interrogate him immediately, interrogate him properly. He was never subjected to gruesome(ph) interrogation. He was never held on any black site. If that is not the right person for military commission, which combines the benefits of being able to obtain (unintelligible) intelligence quickly before he gets (unintelligible) up, then I don’t know who is.

BLOCK: I want to hear from both of you on one other argument that’s raised -and that’s this, that when terrorism cases are channeled through the federal criminal system, it can foster cooperation around the world with foreign intelligence, foreign law enforcement. Is that, do you think, plausible or relevant? David Rivkin, you first.

RIVKIN: Well, actually, there is some truth, unfortunately, to this argument because much of the rest of world certainly (unintelligible) allies are not serious about all things military. Military commissions and the whole military justice system has gotten a very bad rap. But there’s also one other point – the symbolic benefits, democracy – words in a democracy matter. How you portray a given offense matters a great deal to your citizens, to the community at large. This is not just an act of terrorism. I’ve been living with terrorism for decades, unfortunately. This is an act of war. It is a different animal.

So, on one the hand we have a commander-in-chief who tells us we’re at war, but every time, here’s somebody who carries out an act of war against the United States, we treat as an act of terrorism. This is more than an act of terrorism.

BLOCK: David Laufman, what do you make of that point? That this, according to David Rivkin, was an act of war, should be treated as such in the courts?

LAUFMAN: I don’t debate the point that there may be parallel jurisdiction appropriate to try him in the military commission system. My point is simply is that the American criminal justice system has worked very effectively to deal with precisely these kinds of offenses. The Richard Reid case, which arose, I believe around Christmas of 2001, when we were at the highest level of crisis management in the post 9/11 moment, is precisely on all fours with his case. He was tried criminally. There was no great hue and cry. Richard Reid was successfully prosecuted. He got a life sentence. This guy, if he’s convicted, is going to get a very, very heavy sentence.

BLOCK: We’re talking about Richard Reid, the so-called shoe bomber.

LAUFMAN: Correct.

BLOCK: Richard Reid pleaded guilty in federal court and, as you say, serving a life sentence at Supermax in Colorado. David Rivkin, why shouldn’t that be the closest parallel to what we’re talking about here? It was also an attempted attack on an airliner.

RIVKIN: Well, first of all, at the time Mr. Reid was apprehended, the military commission system was not stood up. Second of all, I frankly find the whole argument puzzling – the argument by reference to tradition. Tradition is a good thing, but following tradition blindly – let’s stipulate, even if Mr. Reid was apprehended at the time military commission was stood up and the Bush administration did it, it’s not bipartisan(ph). It was a mistake. Okay? Just because you made one mistake does not mean you have to keep repeating that mistake. New president comes in, tremendous more authority. He says, and I take him at face value, but military commissions are important. Well, give them some exercise.

BLOCK: David Laufman, what do you think?

LAUFMAN: It’s not a choice of more process, less security. We’ve had eight years to get the commission system right, and we still haven’t gotten it right. I don’t think the commission system should be a Petri dish now for bringing terrorism cases into a system that is not able to adjudicate them effectively.

BLOCK: Thanks very much to both of you for coming in.

LAUFMAN: Thank you.

RIVKIN: Thank you.

BLOCK: David Laufman is the former assistant U.S. attorney in the Eastern District of Virginia. And David Rivkin is with the Center for Law and Counterterrorism at the Foundation for Defense of Democracies. Both have worked in the Justice Department.


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