Stephanie Cooper Blum wrote today’s post
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.
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.”
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 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.
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.