Thursday, February 04, 2010

Eric Holder's post hoc terrorism policies

Jan Crawford of CBS News asks the question of whether Eric Holder's five-page single-spaced letter explaining why he chose not to detain Abdulmutallab as an enemy combatant was motivated by politics or policy. For weeks the administration has been telling us that they got enough information from the aspiring bomber in that 50-minute interview. Now suddenly they tell us that Abdulmutallab started talking last week and so that justifies the choices they made. They glide over what information was lost in the five weeks between the bombing attempt and his change of heart on talking to authorities. And they seem to think that making this very public announcement that they have received "actionable" intelligence is not how intelligence-gathering should be conducted.

But Holder's defense is not convincing. As Crawford writes,
Aware of needed damage control, the White House and Attorney General are now taking the position that, legally, it was “highly questionable” whether they could have detained the terror suspect and continued to question him without a lawyer, even if they wanted to. Holder, in his letter to the Senators, said that legal authority “is far from clear.”

Many legal experts, however, agree the law is, in fact, pretty clear: It’s not that highly questionable at all. Under existing law, the Obama Administration had the authority to detain and question Abdulmutallab more extensively. And it chose not to.

If the Obama Administration wants to make a policy decision to treat al Qaeda operatives as common criminals and not as enemy combatants, that’s a position it could take—and some advocate they should. They’ve argued that giving rights to these terrorists, for example, will enhance our standing in the world and deter future terrorist acts.

But those are policy arguments and policy decisions, and they have consequences. They should stand or fall on the merits. They aren’t required by law.

To argue, instead, that the law essentially tied has their hands—that the law all but required this course of action in Detroit--ignores the cases that have been decided.
And what it also does, as Crawford warns, is set a precedent that will become the model if we should be so lucky to catch another terrorist before he is successful at killing Americans.
And there’s a danger in that. Whether or not the Obama Administration made the right call on Christmas Day, it’s a problem to see top officials now make incomplete or misleading legal arguments to justify their decision after the fact.

Insisting it was “highly questionable” under the law to detain suspects like Abdulmutallab reminds me of the economic theory of path dependence. Decisions in the future could well be limited by what’s decided today. You get on a path, and you can’t change course.

Today’s legal argument that it was “far from clear” they could continue interrogating Abudulmutallab, even if they wanted to, could set this administration down a fixed path on the most pressing issues facing this nation, based in no small measure on old-fashioned damage control.

There is clear legal basis to detain al Qaeda combatants. Congress expressly authorized force against “nations, organizations, or persons” who carried out the 9/11 attacks, and two Presidents have made it clear this is a war. Federal courts have either endorsed or not questioned the government’s authority to detain al Qaeda members and actual combatants in wartime.

As Gregory Katsas, an assistant attorney general in the Bush Administration pointed out to me, Abdulmutallab is an actual combatant. He’s not some money guy or a facilitator. He tried to blow up a plane with nearly 300 people on board. And he’s not a U.S. citizen. Sure, he’s being held in this country, Katsas notes, but so were three enemy combatants during the Bush Administration—Yaser Esam Hamdi, Jose Padilla and Ali Salah Al Marri--and courts have said those detentions were lawful.

And while it’s true that a New York-based federal appeals court said the government had no authority to detain Padilla, a U.S. citizen arrested in the United States, the Supreme Court specifically rejected that rationale in another case involving Hamdi. A separate, Richmond-based federal appeals court later upheld his detention in the military process.

Bottom line: the government prevailed in every case involving enemy combatants being held in this country.

And while it’s true, as Holder points out, that a federal judge could someday say that a non-U.S. citizen like Abdulmutallab had a right to a lawyer, even in the military process, the Supreme Court has never ruled those rights kick in immediately or at the same time as in the criminal process. At a minimum, they could have gotten days longer to question him by putting him on the military track.
And, as Crawford points out, it's downright funny to see the Obama administration which loves to differentiate itself from the Bush administration defend itself by saying that Richard Reid was Mirandized. Of course, that was in the early days before military tribunals for terrorists were set up. And many conservatives weren't pleased with how Reid was treated. And Reid was a different sort of terrorist than Abdulmutallab. No one alleges that Reid was anything more than a lone actor, but Abdulmutallab admitted straight up that he was trained in an Al Qaeda camp. He had information right then about where and how and with whom he trained. Now, we're supposed to be happy that five weeks later he's giving us some information that we can act on?

Thomas Joscelyn points to this prevarication in Holder's letter where Holder says that no agency objected to his decision to Mirandize Abdulmutallab.
While those other departments were informed, according to Holder, this evidently doesn't include the senior-most members of those departments -- per their congressional testimony. Senior officials including DHS Secretary Janet Napolitano have testified that they were not informed of the decision. If they were informed, which is unlikely, then they lied before Congress. If they weren't informed, which is likely, then this means those departments have serious communication problems because such an important decision was never communicated up the chain. In other words, assuming Holder is right, then why weren’t the senior-most officials in those departments informed?
And lots of people are finding places where Obama and Holder both denied that they believed in Mirandizing terrorists.

Stephen Hayes points to more lunacy from Holder.
"Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government's legal authority to do so is far from clear," according to Holder. He also writes that the law and FBI policy require providing "Miranda warnings prior to any custodial interrogation conducted inside the United States," unless a "public safety" exception is permitted. (To make his point on a public safety exception, Holder uses the example of someone who has committed an armed offense that compels authorities to ask about the location of the gun.) Holder further argues that "there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney."

Follow that logic. If Holder is correct, the FBI could pick up al Qaeda's chief of operations in, say, Tampa, Florida, and unless he met the criteria for a public safety exception (i.e. had a gun), the FBI would be required to Mirandize him immediately and give him a lawyer. So someone with detailed and intimate knowledge of al Qaeda -- its leaders, its finances, its recruitment, its training and, yes, its future operations -- would be told he has the right to remain silent and provided counsel.

Holder seems to understand that this is a problem. So his letter seeks to reassure: "While in some cases defense counsel may advise their clients to remain silent, there are situations in which they properly and wisely encourage cooperation because it is in their client's best interest, given the substantial sentences they might face."

Thank goodness.

It's no wonder that Holder couldn't answer Lindsey Graham's question at a hearing last fall about whether the U.S. government would be required to Mirandize Osama bin Laden if he were captured. Holder's answer: "That all depends." Because if bin Laden were apprehended in the United States -- to take the logic to absurd lengths -- the FBI would read him his rights and get him a lawyer.

So what about Obama's words to 60 Minutes last spring. "Do these folks deserve Miranda rights? Do they deserve to be treated like a shoplifter-- down the block?"
The president said: "Of course not." His attorney general says: "Yes."
Does having Eric Holder direct our efforts to protect our nation from terrorism give you any confidence at all?