Homeland Security Watch

News and analysis of critical issues in homeland security

February 14, 2010

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

Filed under: General Homeland Security — by Christopher Bellavita on February 14, 2010

Stephanie Cooper Blum wrote today’s post

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I cannot believe it is Valentine’s Day and we are still talking about what transpired on Christmas.

In former Attorney General Michael Mukasey’s Feb. 12, 2010 editorial in the Washington Post, he argues that the FBI should have transferred the Christmas day bomber, Umar Farouk Abdulmutallab, into military custody as an enemy combatant because

(1) there is legal authority and precedent to do so and

(2) the administration has endangered our nation by letting the enemy know that he is cooperating.

At first blush, perhaps, these arguments have an appeal (they certainly seem to be gaining support), but I respectfully would like to question both assertions.

FIRST, Mukasey argues that the Supreme Court case Hamdi v. Rumsfeld provides authority to treat Abdulmutallab as an enemy combatant. While the plurality in that decision did hold that Hamdi could be detained as an enemy combatant as long as the government provided a chance for him to challenge that designation in a neutral forum, Mukasey omits a critical fact:

Hamdi was captured on an actual battlefield in Afghanistan.

In fact, when arguing the case before the Supreme Court, the government defined an “enemy combatant” for purposes of the litigation as someone who was “part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States.” (internal quotations omitted; emphasis added).

The plurality then stated: “We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.” (Emphasis added).

Therefore, while Hamdi provides support that individuals caught in combat zones can be labeled “enemy combatants,” it does not provide such authority for individuals caught in peaceful civilian areas in the United States.

Furthermore, as I explained in my February 11 post , two cases are more applicable than Hamdi: Padilla and al-Marri, like Abdulmutallab, were captured by the FBI in the United States and not in a zone of combat. In both of these cases, the Bush administration transferred these individuals into military custody as enemy combatants, and in both of these cases, the Supreme Court was ultimately in a position to rule on the legality of the matter. And in both of these cases, the respective administration transferred them to the criminal justice system before a ruling.

If Hamdi (which occurred in 2004 and before Padilla and al-Marri were to reach the Supreme Court) provided legal clarity on the matter for individuals captured in peaceful civilian areas, then there would not have been legal uncertainty surrounding the underlying authority to hold Padilla and al-Marri as “enemy combatants.”

SECOND, many pundits in addition to Mukasey criticize the administration for not obtaining actionable intelligence by its decision to treat Abdulmutallab as a criminal defendant.

Then, when the administration defends itself by explaining that it has, indeed, been obtaining actionable intelligence, the administration is lambasted for revealing to the enemy that Abdulmutallab has been cooperating.  If national security was the real concern – instead of politics – critics would not be placing the administration in the untenable position of being damned if it does, and damned if it doesn’t.  

Mukasey states: “Once his former cohorts know he is providing information, they can act to make that information useless.”

In this respect, I truly wonder whether Al-Qaeda is out there pondering in some strategy session whether to change tactics based on the fact the administration says Abdulmutallab has been cooperating.   If he was held incommunicado as an enemy combatant – as Mukasey seems to advocate — would the enemy assume that he was withstanding whatever interrogation methods were being used and therefore not change tactics?  Would Al-Qaeda assume that no news is good news?

This is not some case where we secretly capture an Al-Qaeda operative and can feel confident that the enemy is not aware we are interrogating him.  Abdulmutallab tried to blow up a plane over Detroit.  It was a pretty public event.   While I hate to speak for Al-Qaeda, I think we can safely assume that Al Qaeda realized he was compromised as soon he burned half his body without taking down the plane.

I am not trying to make light of complicated legal issues or the fact that 200 people almost lost their lives.   The issues are complex and the consequences are dire, which is all the more reason I think this conversation would be more productive if it was based on facts and not half-truths.

My bet is that Al-Qaeda wished Abdulmutallab were treated as an enemy combatant, held incommunicado, subjected to coercive interrogation, and even held indefinitely because that would fuel the narrative in its favor allowing it to gain more recruits. After all, this is also a war of ideas.

If the criminal justice system can result in Abdulmutallab’s detention for life and actionable intelligence, then we get the added bonus of doing the right thing in the eyes of the international community.  And that bet just may pay off in the long run.

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The views in this article are the author’s and do not necessarily represent views from the Department of Homeland Security or the Department of Justice.

Stephanie Cooper Blum is an attorney for the Department of Homeland Security (DHS) where she advises on civil rights and civil liberties issues. She previously served as a member to 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. Ms. 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 14, 2010 @ 12:14 pm

This is a brilliant post. What is clear and obviously many would disagree is that the Administration is in a mood to see what final answers to the threat of non-state terrorism can be provided by the intelligence and understanding of the Judicial Branch. It does seem to be show not just an abandonment of responsiblity by the Executive Branch but a fundamental trust that the Judicial Branch of the Federal government does under both the threats and needs of this new form of risk to the United States. What is interesting to me of course is that the federal judiciary at this point is largely a Republican creation as to the confirmed judges at all three levels of the judiciary. Thanks again for the effort and knowledge reflected in your posts. DISCLOSURE– I agree with Ms. Blum in almost all of her analysis.

Comment by Federale

February 16, 2010 @ 2:39 pm

You Obamabots seem to always forget about Ex Parte Quirin where the Supreme Court held that enemy aliens, and in this case illegal combatants, can be held by the military and tried in a military commission. No enemy combatant, whether terrorist, spy, sabateur, or war criminal has any rights to access to a Article III court.

Our enemies are not impressed with the Obama/ACLU policy of trials in Article III courts and are attacking us because they are motivated by an ideology of Islamist expansion and supremacy, not because terrorists are not being given access to Article III courts.

Comment by Joe

February 20, 2010 @ 5:34 pm

Very well written, however I do not agree with you. Individuals that wish to do us harm do not care about how great our Criminal Justice System is. A jury in NY couldn’t convict John Gotti Jr., do you really trust them with KSM?

Comment by Lavonne Guzman

June 15, 2010 @ 5:11 pm

Hah am I literally the first comment to your awesome writing?!

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