Homeland Security Watch

News and analysis of critical issues in homeland security

February 11, 2010

Pundit Amnesia: Why take low-hanging fruit and plant it further up the tree?

Filed under: General Homeland Security — by Christopher Bellavita on February 11, 2010

Stephanie Cooper Blum wrote today’s post.  Ms. Blum is an attorney for the Department of Homeland Security where she advises on civil rights and civil liberties issues.

Please note: The views in this essay are the author’s and do not necessarily represent views of the Department of Homeland Security, the Department of Justice, or any other government agency.

Ms. Blum previously served as a member of the Department of Justice’s Task Force on Detention Policy, worked as an employment litigator for the Transportation Security Administration, and served as a law clerk to three federal judges.  Additional information about Ms. Blum is included at the end of this post.

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As the nation grapples with real problems, like aviation security, the economy, and healthcare, I am amazed by how many pundits are bashing the administration for what is a no-brainer decision:  trying “underwear bomber” Umar Farouk Abdulmutallab in federal court.  Critics would sooner label him an “enemy combatant” and whisk him away to Guantanamo Bay, which the administration is trying to empty.    And I say this having authored a book conceding that sometimes detention outside the criminal justice system is a necessary evil.  But this situation in no way represents one of those cases and, with all due respect, it is not even a close call.

We have been here before (it was not even that long ago) and it did not go so well for legal clarity, our international standing, or justice. In 2002, the FBI arrested Jose Padilla at O’Hare airport for plotting to detonate a dirty bomb.  The Bush administration transferred him to military custody as an enemy combatant where he remained for 3.5 years, largely incommunicado, until they transferred him back to the criminal justice system, most likely to avoid a show-down with the Supreme Court over the legality of its approach.  In August 2007, Padilla was subsequently convicted on terrorism conspiracy charges in the criminal justice system where he is serving a 17-year sentence.

Accused sleeper-cell terrorist Ali Saleh al-Marri met a similar fate after his arrest in Peoria, Illinois. Detained by the military as an enemy combatant in 2003, he would eventually be transferred to the criminal justice system by the newly-elected Obama administration in February 2009, again as his enemy combatant case was pending before the Supreme Court.  Al-Marri then pled guilty to conspiracy to provide material support to a foreign terrorist organization and was sentenced to 8 years.

The upshot from both Padilla and al-Marri is that the legality of capturing terrorists in the United States and labeling them as enemy combatants remains unclear.  Meanwhile, the criminal justice system successfully handled Richard Reid and Zacarias Moussaoui (both received life sentences), just to name a prominent few.  Therefore, pundits who demand that we treat Abdulmutallab as an enemy combatant advocate an uncertain course rather than the proven legality and effectiveness of the criminal justice system.  What are the reasons for diving into such murky waters?

Granted, there are a couple reasons to at least argue for a law-of-war detention scheme.  The most compelling one is that trying terrorists in federal court could disclose sensitive intelligence sources and methods, especially because of the Sixth Amendment’s confrontation clause.  Another arguable reason is where a majority of the evidence comes from un-Mirandized statements, or worse, coercive interrogation.  We can assume that such reasons motivated the Department of Justice’s task force on Guantanamo Bay to recommend to the administration that approximately 50 detainees at GTMO be neither tried in a military tribunal nor federal court but instead be held indefinitely under Congress’s Authorization to Use Military Force.   We can assume, even if we do not agree with the recommendation, that those 50 cases represent the most complex.  I say this based on a purely political observation: the Obama administration wants to close GTMO, it made a promise to that effect, and it does not look good to have to modify promises.  If the President ultimately agrees to detain 50 individuals (and that number appears to be going down) indefinitely under law-of-war authority, then I think it is fair to say that those cases truly are complex.

But this brings me back to the question before us:  is there any principled reason to argue that Abdulmutallab should have been labeled an enemy combatant and transferred to GTMO? Is his situation complex?

There really is no credible way to argue that prosecuting him in federal court would reveal sensitive sources and methods.  Not only do we have over 100 witnesses on the plane he tried to blow up, but he burned a significant part of his body while on the plane with explosives.  How would he explain that away?  He also appeared to make incriminating statements to government agents on the way to the hospital before the FBI provided him Miranda rights (and such statements would likely be admissible due to an emergency exception to Miranda.)    And while the FBI did ultimately provide him Miranda rights – a decision that Attorney General Holder has clarified was made after consultation with the intelligence community – Abdulmutallab has still provided actionable intelligence, mainly, if we believe media reports, because the administration has brought family members over to convince him that he would be treated fairly by the U.S. justice system.    I doubt that strategy would work if he was whisked away to GTMO.  Whether true or not (and that is a separate post altogether) we can all agree that, at least in the international community, GTMO does not represent fairness or U.S. justice at its best.

Some argue that Abdulmutallab needed to be labeled an enemy combatant so that he could be interrogated using “methods” outside the criminal justice system – not to obtain evidence for a conviction but to gain intelligence to prevent future attacks.   This rationale is a laudable goal.  Assuming such “methods” even work, or more accurately, work better than the alternative, (again, another post), we all know that Obama banned most of the coercive interrogation methods from the Bush administration by executive order when he took office.   So it is not even clear to me what “methods” such pundits are referring to.  Of course, if he was labeled an enemy combatant, he would not have been provided Miranda rights.    But is that what this is about: providing him Miranda rights?   It is pure speculation that withholding Miranda rights and labeling him an enemy combatant would have produced more actionable intelligence than the status quo. Furthermore, as journalist Jane Mayer eloquently explains in The Trial , the criminal justice system has worked more effectively producing longer sentences than the few enemy combatants handled by military commissions.

And then there are those who argue that the American public wants Abdulmutallab treated as an enemy combatant; that they want GTMO to remain open; and they want coercive interrogation.  And, assuming this poll is true (apparently such people helped Scott Brown get elected to the Senate), it does not move me (although it is distressing). In 1967, 70 percent of the population opposed interracial marriage.  Meanwhile, the Supreme Court ruled unanimously (9-0) that such a prohibition violated civil rights.  This is a democracy; the public’s views matter, but only to a point.  The rule of law often protects the minority point of view.

Let me be clear:  I am not saying that, when it comes to terrorists, there should never be a case for a law-of-war detention scheme.  (It would be nice, however, as Benjamin Wittes and Robert Chesney point out, if Congress created some framework instead of relying on federal judges’ ad hoc approach.)

What I am saying is law-of-war detention should be reserved for the truly complex cases where there is a real – or at least – arguable necessity. Why take low-hanging fruit and plant it further up the tree?  Let’s recognize the complicated cases for what they are without co-opting the easy ones into that mold.  And let’s get back to the real substantive issues that are plaguing this nation.

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Stephanie Cooper Blum is the author of The Necessary Evil of Preventive Detention in the War on Terror: A Plan for a More Moderate and Sustainable Solution, published in 2008. She holds a master’s degree in security studies from the Naval Postgraduate School, a J.D. from University of Chicago Law School and a bachelor’s degree in political science from Yale University. Ms. Blum has written various articles on homeland security issues and is an instructor at Michigan State University’s Criminal Justice School. She can be reached at scooper [at] aya.yale.edu.

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4 Comments »

Comment by William R. Cumming

February 11, 2010 @ 6:01 am

Thanks Ms. Blum for an excellent and informative post. Perhaps as background contributed in a minor way but encouraged in a big way the production of a National Security law case book now in its 5th edition by Professors Dycus and Raven-Hansen et al and understand that text and related materials have formed one of the most popular electives in American law schools. That was my hope since often bored but intelligent small town or medium town or large city lawyers tired of the practice of law get into politics and become Mayors, Governors, or even Presidents and at least they understand that the Constitution CANNOT BE WAIVED. In the so-called alien and sedition acts of 1798 actually four laws the Executive Branch and the Congress seem to have overreached in a related field. Although the four statutes involved expired on their own terms before court challenges were finalized. One in particular is of interest here IMO! The Alien Enemies Act of July 6, 1798, authorized the President in the event of war, to desiginate as alien enemies any citizen or subject of a hostile nation residing in the US and to make regulations for their apprehension, restraint, or removal. That statute and the others expired in 1801.
Part of the problem is that the grip of International Law much less the law of any particular nation state including the US has not yet fully come to grips with the rise of non-state or sub-state actors as credible technological threats to an specific nation state. We still have no final clarification on many of the legal issues arising out of 9/11 by the Judicial Branch of the Federal Government. This may still be a decade off but who knows. In the meantime the fact that evolution of the legal scheme for dealing with the terrorist threat is as Ms. Bloom suggests largely ad hoc by each federal judge faced with the issues and complexities of our democracy (Republic)defending itself against credible threats. As Ms. Bloom indicates by her post, the more intelligent and informed people with expertise can weigh in on these issues the better. As for me, I believe that persons arrested domestically in the US should in fact be given the Constitutional rights granted defendants, whether incarcerate persons such as from the Mariel Boatlift in 1980 or those who might otherwise be considered enemy combatants. What might be of interest to the readership is that during the 1st term of President Ronald Reagan extensive consideration was given to whether Article 3 of the Geneva Convention encompassed “terrorists” hoever defined. That research and deliberation has yet to be made public and should in my opinion whatever the merits of its logic, analysis, and conclusions. Again my personal belief is that the Article three provisions largely modified in the early 80s are in fact applicable to “terrorists” but I understand others may differ. Since the US is signatory to that treaty and various conventions including the one against torture there is no doubt under the Constitution that treaties are the law of the land and subject when a specific case or controversy arises to judicial review. See Article III, Section 2 providing in part-”The judicial Power shall extend to all Cases, in Law adn Equity, arising under this Constitution, the laws of the United States, and Treaties made, or which shall be maded, under their Authority- . . .”

Comment by Philip J. Palin

February 11, 2010 @ 7:37 am

While I am posting this here, it could as easily have been posted to Mark’s immediately prior post.

Saturday my long-lost cousin Sarah Palin criticized the arrest of the would-be Christmas Day bomber. She told her Nashville audience, “Treating this like a mere law enforcement matter places our country at grave risk. Because that’s not how radical Islamic extremists are looking at this. They know we’re at war. And to win that war, we need a Commander-in-Chief, not a professor of law standing at the lectern.”

Criticism of the Obama administration’s lawerly approach to counter-terrorism is emerging as a key element in the Republican strategy for 2010 and beyond. It will, I expect, be a successful political strategy. The more dramatic any future terrorist attack, the more successful the political results.

It is a shameful strategy for anyone who claims to be a conservative.

If the American conservative tradition means anything, it is to be vigilant regarding our liberties and suspicious of the central government’s innate tendency to subvert those liberties. As a conservative, the last thing I want is a Commander-in-Chief declaring domestic war against anything.

As a conservative concerned with the preservation of liberty, I want an elected executive, two houses of an elected legislature, and an appointed judiciary in constant tension with one another. I want the power of government restrained. I want a system that is predisposed to protect the rights of the most obnoxious individuals. These are the fire-walls that protect my liberties.

Great nations seldom lose their freedom to external attack, but freedom is often self-sacrificed to false idols of security. Conservatives seek to conserve liberty. Don’t we?

Terrorists present a clear and present danger to the United States. They will, almost certainly, succeed in killing thousands more of us. But these particular enemies, no matter how successful, do not represent an existential threat to the United States. There is no terrorist leader, no matter how successful, who is in a position to overturn the Constitution.

A half-century of nuclear-armed Cold War significantly challenged the balance of powers on which our liberties largely depend. The struggle against terrorists will be at least as long. If my fellow Republicans have truly pledged allegiance to the Republic, they will stop calling for Presidential war-powers to be applied inside the United States.

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Full Disclosure: I originally drafted what’s above on Monday, February 8. A major publication has telephoned and emailed claiming it plans to use as an Op-Ed, but asking that I not otherwise publish. I am absolutely in favor of taking time to reflect, but in the meantime the discussion proceeds. I appreciate Mark and Ms. Blum provoking me post. Sic semper mora (or something like that, “thus always with delay”).

Comment by William R. Cumming

February 11, 2010 @ 8:07 am

AS always would be of great interest who advises the various prospective candidates for 2012 and what are their beliefs. It does look like at least two more SCOTUS appointments for President Obama and hoping they are diligently searching. I note that two outstanding Chief Justices of SCOTUS, John Marshall and Earl Warren did certainly have judicial temperament but lacked judicial experience. Perhaps ignoring the former SCOTUS law clerks and looking for people with a broader experience might be worthwhile. If he does get a total of three (3) appointments to SCOTUS and they actually are confirmed as of this point would be President Obama’s greatest legacy to the future. I have long advocated that the SCOTUS appointments look beyond the lawyers and perhaps another discipline such as a political science scholar of the Court, the Judiciary, and American political science and government. I would have to say that the SCOTUS stands condemned by its lack of output and the number of 5-4 and 6-3 opinions. The interested public has difficult making sense of the various SCOTUS rulings, even though “all” are presumed to “know” the law. One important category of decision law–federalism, pre-emption and supremacy of federal law– is breaking down over the failure of SCOTUS to articulate understandable standards. Could it be that SCOTUS law clerks might also be usefully expanded beyond the legal profession?

And of course “terrorism” the response to “Terrorism” and national security law generally already identified by this commentator as requiring the best and brightest and most thoughtful to analyize fully to allow our democracy (Republic)to at least last a few more generations. The use of secrecy and fear to manipulate the public by the political leadership and MSM does not seem to be leading to a democratic outcome for the nation.

Comment by George

July 19, 2010 @ 10:57 am

Une agréable sensation est plus abondant que le Viagra ™. Ceux qui ont utilisé le Viagra comprendre, la sensation de fatigue après une relation sexuelle est forte, et il est tout à coup se sentir faible et ennuyeux. Le principe hormone sexuelle des produits chimiques n'est pas contenue, et Satibo Capsule ajuste la fonction sexuelle d'un corps humain par la méthode de renforcer la capacité de sécrétion de l'hormone propres complètement propre pouvoir potentiel est pleinement démontrée, et un sentiment riche de rapports sexuels est produit . Cetteest un plus grand charme de Satibo Capsule.

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