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.
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.
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.