Originally published by The Washington Examiner, 1-26-10
A bipartisan revolt is brewing in the Senate over the Obama administration’s handling of accused Detroit bomber Umar Farouk Abdulmutallab. A small but growing number of lawmakers is asking the president to undo what many regard as the disastrously wrong-headed decision to grant Abdulmutallab full American constitutional rights. Once he was told he had the right to remain silent, the accused terrorist stopped talking to U.S. investigators, possibly denying them valuable intelligence about the threat from al Qaeda.
The revolt started last week when top administration counterterrorism officials testified they had not been consulted about the decision to read Abdulmutallab the Miranda warning and give him a court-appointed lawyer. Several senators were aghast, including Homeland Security Committee Chairman Joseph Lieberman, the committee’s ranking Republican Susan Collins, and the Judiciary Committee’s ranking Republican Jeff Sessions. How could the Justice Department have done something so consequential without even consulting the administration’s own experts on terrorism and intelligence?
The anger on Capitol Hill grew over the weekend, when the Associated Press reported that local FBI agents in Detroit were allowed to question Abdulmutallab for just 50 minutes before he went into surgery for several hours. During that time, Justice Department lawyers in Washington intervened and Abdulmutallab was later read his Miranda rights.
That was bad enough, but what really made lawmakers angry was when White House press secretary Robert Gibbs, appearing on “Fox News Sunday,” insisted the 50-minute interrogation had been entirely sufficient for investigators to learn everything they needed to know about the al Qaeda plot to bomb Northwest Airlines Flight 253.
“You really don’t think that if you’d interrogated him longer that you might have gotten more information?” asked Fox’s Chris Wallace.
“Well, FBI interrogators believe they got valuable intelligence and were able to get all that they could out of him,” Gibbs said.
“All they could?” Wallace asked.
“Yeah,” Gibbs said.
That was it for some lawmakers. “It is now clear beyond doubt that the administration squandered an invaluable opportunity to gather intelligence from a captured terrorist fresh from al Qaeda’s operation in Yemen,” Sessions said. “But this weekend, the president’s spokesman actually argued that the right call was made and that fifty minutes of interrogation was sufficient.”
On Monday, Lieberman and Collins wrote to Attorney General Eric Holder, as well as top White House terrorism official John Brennan, saying the decision to give Abdulmutallab full American constitutional rights had been a serious mistake, but that “the administration can reverse this error, at least to some degree, by immediately transferring Abdulmuttalab to the Department of Defense … [which has] the authority and capability to hold and interrogate Abdulmuttalab and try him before a military commission.”
Sessions agrees, and it’s a suggestion more lawmakers are likely to support in coming days. But it raises a critical question: Once Abdulmutallab has been given the Miranda warning, can the administration take it back?
“Of course,” says David Rivkin, a lawyer who served in the Reagan and Bush I administrations. “To the extent that the facts justifying his designation as an enemy combatant are there, you can always designate him as such. Miranda rights are relevant only to interrogations in the criminal justice system. If he were transferred to the military justice system, it wouldn’t be taking those rights back — it would be just irrelevant.”
Others worry that it wouldn’t be so easy. “The problem is, once you get them into the civilian system, the federal courts have made very clear that they’re not going to let go easily,” says Lee Casey, another veteran of the Reagan and Bush I administrations who has co-authored several articles with Rivkin. “While I think it would be a great idea, given how solicitous the courts have been of these detainees, I doubt the federal courts would cede jurisdiction.”
Whatever the degree of difficulty, it is a fact that Abdulmutallab was recruited by al Qaeda, trained by al Qaeda, and sent to the United States by al Qaeda. It’s reasonable to assume he could be an important source of information about the terrorist organization. For Lieberman, Collins and Sessions, that makes it worth the effort.
You might think the president would agree. After all, he has said specifically that the United States is “at war against al Qaeda.” But changing Abdulmutallab’s status would be an admission that his administration got it wrong when confronted by an al Qaeda terrorist determined to kill Americans. And it’s not at all clear that that is something the president is prepared to do.