Where the U.S. went wrong on the Christmas Day bomber

washingtonpost.com

By Michael B. Mukasey

Friday, February 12, 2010

It seems to me unlikely that Umar Farouk Abdulmutallab will be known to future generations of lawyers for generating any groundbreaking legal principle or issue. But when it comes to illuminating our public discourse about the "global war on terror," he is right up there with Clarence Earl Gideon, Ernesto Miranda or even Jose Padilla. His case presents in one tidy package virtually all the issues that arise from the role intelligence plays in this struggle and compels us to examine what the law requires and what it doesn't.

When Abdulmutallab tried to detonate a bomb concealed in his undershorts, he committed a crime; no doubt about that. He could not have acted alone; no doubt about that either. The bomb was not the sort of infernal device readily produced by someone of his background, and he quickly confirmed that he had been trained and sent by al-Qaeda in Yemen.

What to do and who should do it? It was entirely reasonable for the FBI to be contacted and for that agency to take him into custody. But contrary to what some in government have suggested, that Abdulmutallab was taken into custody by the FBI did not mean, legally or as a matter of policy, that he had to be treated as a criminal defendant at any point. Consider: In 1942, German saboteurs landed on Long Island and in Florida. That they were eventually captured by the FBI did not stop President Franklin Roosevelt from directing that they be treated as unlawful enemy combatants. They were ultimately tried before a military commission in Washington and executed. Their status had nothing to do with who held them, and their treatment was upheld in all respects by the Supreme Court.

If possible, FBI custody is even less relevant today in determining someone's status. In 1942 the FBI was exclusively a crime-fighting organization. After Sept. 11, 2001, the agency's mission was expanded beyond detection of crime and apprehension of criminals to include gathering intelligence, helping to prevent and combat threats to national security, and furthering U.S. foreign policy goals. Guidelines put in place in 2003 and revised in September 2008 "do not require that the FBI's information gathering activities be differentially labeled as 'criminal investigations,' 'national security investigations,' or 'foreign intelligence collections,' or that the categories of FBI personnel who carry out investigations be segregated from each other based on the subject areas in which they operate. Rather, all of the FBI's legal authorities are available for deployment in all cases to which they apply to protect the public from crimes and threats to the national security and to further the United States' foreign intelligence objectives.

"As with criminal investigations generally, detecting and solving the crimes, and eventually arresting and prosecuting the perpetrators, are likely to be among the objectives of investigations relating to threats to the national security. But . . . other measures needed to protect the national security . . . may include . . . providing threat information and warnings to other federal . . . agencies and entities; diplomatic or military actions; and actions by other intelligence agencies to counter international terrorism or other national security threats."

Contrary to what the White House homeland security adviser and the attorney general have suggested, if not said outright, not only was there no authority or policy in place under the Bush administration requiring that all those detained in the United States be treated as criminal defendants, but relevant authority was and is the opposite. that "indefinite detention for the purpose of interrogation is not authorized" but also said in the same case that detention for the purpose of neutralizing an unlawful enemy combatant is permissible and that the only right of such a combatant -- even if he is a citizen, and Abdulmutallab is not -- is to challenge his classification as such a combatant in a habeas corpus proceeding. This does not include the right to remain silent or the right to a lawyer, but only such legal assistance as may be necessary to file a habeas corpus petition within a reasonable time. That was the basis for my ruling in Padilla v. Rumsfeld that, as a convenience to the court and not for any constitutionally based reason, he had to consult with a lawyer for the limited purpose of filing a habeas petition, but that interrogation need not stop.

What of Richard Reid, the "shoe bomber," who was warned of his Miranda rights and prosecuted in a civilian court? He was arrested in December 2001, before procedures were put in place that would have allowed for an outcome that might have included not only conviction but also exploitation of his intelligence value, if possible. His case does not recommend the same procedure in Abdulmutallab's.

The struggle against Islamist extremists is unlike any other war we have fought. Osama bin Laden and those like-minded intend to make plain that our government cannot keep us safe, and have sought our retreat from the Islamic world and our relinquishment of the idea that human rather than their version of divine law must control our activities. This movement is not driven by finite grievances or by poverty. The enemy does not occupy a particular location or have an infrastructure that can be identified and attacked but, rather, lives in many places and purposely hides among civilian populations. The only way to prevail is to gather intelligence on who is doing what where and to take the initiative to stop it.

There was thus no legal or policy compulsion to treat Abdulmutallab as a criminal defendant, at least initially, and every reason to treat him as an intelligence asset to be exploited promptly. The way to do that was not simply to have locally available field agents question him but, rather, to get in the room people who knew about al-Qaeda in Yemen, people who could obtain information, check that information against other available data and perhaps get feedback from others in the field before going back to Abdulmutallab to follow up where necessary, all the while keeping secret the fact of his cooperation. Once his former cohorts know he is providing information, they can act to make that information useless.

Nor is it an answer to say that Abdulmutallab resumed his cooperation even after he was warned of his rights. He did that after five weeks, when his family was flown here from Nigeria. The time was lost, and with it possibly useful information. Disclosing that he had resumed talking only compounded the problem by letting his former cohorts know that they had better cover their tracks.

The writer was U.S. attorney general from 2007 to 2009 and the presiding judge at initial proceedings against Jose Padilla in 2002.

Protected by the justice system, a would-be bomber still talks

The Boston Globe
Globe Editoral

THE NEWS that the would-be airplane bomber, Umar Farouk Abdulmutallab, has resumed cooperation with the FBI validates the Justice Department’s decision to charge him in federal court rather than a military commission. And the creative methods employed by the FBI to obtain his cooperation refute the notion - advanced with much tub-thumping anger on talk radio - that a defendant in the criminal justice system is somehow off limits to interrogators seeking information about terrorist plots.

The FBI shrewdly sought out relatives of Abdulmutallab in Nigeria who were willing to come to the United States and prevail on him to tell what he knows about Al Qaeda in the Arabian Peninsula. Using family members to turn the defendant into a cooperative informant highlighted a crucial element of the interrogator’s craft: the need to establish trust between a questioner and a prisoner. The flipping of Abdulmutallab proved what intelligence professionals know well: that psychological methods of interrogation are almost always more effective than the rough stuff seen in the movies.

Senator Scott Brown and some other Republicans have castigated the Obama administration, originally, because Abdulmutallab was read his Miranda rights and allowed to “lawyer up’’ after an initial 50-minute interrogation. But if he had been turned over to a military commission, he would have had to receive the very same protections. The 50 minutes of FBI questioning without an attorney present were legally permissible only under a public safety exemption, which allowed agents to ask about such things as other explosives on Abdulmutallab’s flight or terrorists on other incoming flights.

Under the Bush administration, more than 300 terrorists were convicted in the criminal justice system, and shoe-bomber Richard Reid was granted his Miranda rights in the first five minutes of his capture. Politicians who tried to raise a ruckus about the Justice Department’s handling of the Abdulmutallab case either didn’t know that history, ignored the questionable legal status of military commissions, or failed to appreciate how effective FBI investigators really are.

© Copyright 2010 Globe Newspaper Company.

'Bin Laden' claims Christmas Day bomb plot

From Times Online
January 24, 2010
Adam Fresco

A new audio tape said to be from Osama Bin Laden that claims responsibility for the Christmas Day airline bombing attempt in Detroit has warned of further attacks against America.

The short recording purporting to be from the al-Qaeda leader, which was aired on Al Jazeera television, said: “The message delivered to you through the plane of the heroic warrior Umar Farouk Abdulmutallab was a confirmation of the previous messages sent by the heroes of the September 11.”

On Christmas Day, Mr Abdulmutallab, a Nigerian national, allegedly attempted to blow up the Northwest Airlines flight he was sitting on as it approached Detroit Metro Airport. But the bomb he was said to have been hiding in his underwear failed to explode.

He told police shortly afterwards that he had been trained and instructed in the plot by al-Qaeda operatives in Yemen.

More than 60 messages have been broadcast by bin Laden, Ayman al-Zawahri, al-Qaeda’s number two, and their allies since the September 11 attacks in 2001.

The tape was aired after MI5 raised the terrorist threat level in Britain from "substantial" to "severe" — meaning that counter-terrorism agencies believe that an attack is "highly likely".

It is believed that intelligence whispers from America that an al-Qaeda affiliated group is close to finalising another atrocity coupled with a conference on Yemen and Afghanistan in London this week led to the decision.

The measure was approved by the Government's Cobra emergency committee and announced by Alan Johnson, the Home Secretary, who said he wanted to emphasise that “there is no intelligence to suggest than an attack is imminent”.

David Miliband, the Foreign Secretary, said today that it would be “very stupid” of him to comment on the intelligence behind the change in threat level.

“The fact is though that these people will stop at nothing; they will try every trick in the book, they will use advanced technology, they will use all the mechanisms of open society that we depend on for their own terrible purposes.

“And they will try to strike Christians, Muslims, Jews randomly.”

The Government had a responsibility to keep the terrorist threat to the UK “under very careful scrutiny”, he added.

“We think it’s right to keep the public informed about the general threat level.”

Mr Miliband said that the Christmas Day attack demonstrated “the links that can exist between different terrorist groups”.

But he told BBC One’s Andrew Marr Show that he would wait to see whether the tape was authentic.

“Let’s wait to see what he actually says; we know that the al-Qaeda senior leadership are in the badlands of the Afghan-Pakistan border, probably on the Pakistan side,” he said. “We know too that the Detroit attack was the first time that al-Qaeda of the Arabian Peninsula, which is a sub-group of the al-Qaeda franchise ... represents an attack on the West rather than an attack within the Middle East.

“Let’s see what he says but it obviously demonstrates both the dangers that exist but also the links that can exist between different terrorist groups.”

Mr Miliband said that there was an important meeting about Yemen on Wednesday. The meeting in London, called by Gordon Brown, will be attended by representatives of the Yemeni Government, regional powers and Britain’s allies, probably including US Secretary of State Hillary Clinton.

It will come one day before a key conference in London on the future strategy of allied forces in Afghanistan, to be attended by President Hamid Karzai of Afghanistan.

Federal agents did not read Umar Farouk Abdulmutallab his legal rights until nearly ten hours after he was arrested, it was reported today.

He is said to have freely admitted his role in trying to blow up the aircraft but then refused to answer any questions when finally given his Miranda warning providing his right to remain silent.

In an interview with the Associated Press unnamed officials said that the suspect spoke openly and in detail about what he had allegedly done and the planning that went into the attack.

Other counterterrorism officials speaking on condition of anonymity said that it was during this questioning that he allegedly admitted he had been trained and instructed in the plot by al-Qaeda operatives in Yemen.

Investigators are said to be allowed to question a suspect without providing a Miranda warning if they are trying to end a threat to public safety.

In a future trial in a federal court, AP reported, prosecutors would likely justify Mr Abdulmutallab's questioning without a Miranda warning by arguing that the FBI agents needed to know quickly if there were other aircrafts with other bombs headed for the United States.

System Failure The Christmas Day bomber was never asked specific questions based on the intelligence the U.S. government had already collected on him

WeeklyStandard.com
January 21, 2010 - 1:00 AM
BY Stephen F. Hayes

There is one reason that White House should be thrilled about the Massachusetts Senate race. It crowded out news that came out of the stunning testimony of Obama administration officials Wednesday on the Christmas Day terrorist attack. Four top counterterrorism officials testified before a congressional committee that they were not consulted about how to handle the interrogation of Umar Farouk Abdulmutallab, the al Qaeda operative who attempted to blow up Flight 253 on December 25, 2008. That group included all three senior Obama administration officials who testified before the Senate Homeland Security Committee on Wednesday: Janet Napolitano, Secretary of Homeland Security; Michael Leiter, chairman of the National Counterterrorism Center; and Dennis Blair, the Director of National Intelligence. It also included FBI Director Robert Mueller.

With surprising candor, Blair, the nation's top intelligence official, explained that these officials were not deliberately excluded from the decisionmaking process in the immediate aftermath of the attack. Rather, he told the Senate Homeland Security Committee, there was no process at all.

"I've been a part of the discussions which established this high-value interrogation unit, [HIG] which we started as part of the executive order after the decision to close Guantanamo. That unit was created for exactly this purpose -- to make a decision on whether a certain person who's detained should be treated as a case for federal prosecution or for some of the other means. We did not invoke the HIG in this case," he said. "We should have."

That's quite an admission. Blair wasn't finished (see the 51:00 mark of this video). "Frankly, we were thinking more of overseas people and, duh!, we didn't put it then. That's what we will do now. And so we need to make those decisions more carefully. I was not consulted and the decision was made on the scene. It seemed logical to the people there but it should have been taken using this HIG format at a higher level."

When Blair said "Duh," he literally gave himself a slap on the forehead, as if to say I-cannot-believe-we-were-that-stupid. It was an appropriate gesture.

Blair admitted that Abdulmutallab was not interrogated for intelligence purposes because the Obama administration had not considered using the newly-created elite interrogation unit on terrorist in the United States.

If Blair considered the handling of Abdulmutallab a mistake, FBI Director Robert Mueller, testifying at the same time before the Senate Judiciary Committee, did not. Mueller, like Blair, acknowledged that the crucial decision about how to treat Abdulmutallab was made by local FBI agents. But unlike Blair, he vigorously defended it."The decision to arrest [Abdulmutallab] and put him in criminal courts, the decision was made by the agents on the ground, the ones that took him from the plane and then followed up on the arrest in the hospital," Mueller told the committee. He also said: "In this particular case, in fast-moving events, decisions were made-appropriately, I believe, very appropriately-given the situation."

Again, stunning. The FBI Director believes it is appropriate -- very appropriate -- that four of the nation's top counterterrorism officials were never consulted about how to handle an al Qaeda terrorist who very nearly blew up an airplane with almost 300 passengers aboard.Mueller testified that those FBI agents interviewed Abdulmutallab about "ongoing and other threats." What the FBI director did not mention was that his agents interviewed the terrorist without any input from the National Counterterrorism Center -- the institution we now know was sitting on top of a small mountain of not-yet-correlated information about the bomber. So whatever information Abdulmutallab provided, he gave up in response to general questions about his activities, not in response to specific questions based on the intelligence the U.S. government had already collected on him. And within 24 hours -- according to Senator Jeff Sessions, whose tough questioning left Mueller stuttering -- Abdulmutallab was Mirandized and he stopped talking. (It would be nice to learn, from Mueller or someone else in a position to know, precisely when Abdulmutallab was read his rights.)

The administration's embarrassing performance continued even after the hearings had been adjourned. Blair's office released a statement intended to clarify his earlier remarks about the high-value detainee interrogation group -- HIG.

"My remarks today before the Senate Committee on Homeland Security and Governmental Affairs have been misconstrued. The FBI interrogated Umar Farouk Abdulmutallab when they took him into custody. They received important intelligence at that time, drawing on the FBI's expertise in interrogation that will be available in the HIG once it is fully operational."

The problem was so much that Blair had not contemplated using the HIG on terrorists captured on U.S. soil -- Duh! -- but that it is not yet fully operational. And this is better? As Blair testified himself, the HIG was "started as part of the executive order after the decision to close Guantanamo." That was a year ago tomorrow. So the elite interrogation unit that was to have been keeping us safe after the administration banned enhanced interrogation and vowed to shut down Guantanamo Bay -- it doesn't actually exist yet.

Barack Obama should call Scott Brown again -- not to congratulate him, but to thank him for guaranteeing that this extraordinary incompetence does not get the coverage it deserves.