A mistake that can be rectified, part 5

Jennifer Rubin notes that those of us urging the Obama administration to rectify the treatment of Umar Abdulmutallab as a criminal vested with the constitutional rights of an American citizen are now in good company:

Sens. Joe Lieberman and Susan Collins have written a letter today to Attorney General Eric Holder and counterterrorism adviser John Brennan urging them to designate Umar Farouk Abdulmutallab, the Christmas Day bomber, as an “unprivileged enemy belligerent” so he can be “questioned and charged accordingly.” The senators note that Obama himself has declared that “we are at war with al-Qaeda.” However, Abdulmutallab was read his Miranda rights and, as others have reported, provided only 50 minutes of conversation to FBI agents who lacked the needed detail to elicit all the helpful material he might possess. The senators note that last week, Dennis Blair and other officials conceded in congressional testimony that the Justice Department “did not consult with leadership in the intelligence community and the Department of Defense for their input on whether or not to treat Abdulmutallab as a criminal and read him his Miranda rights.” Senators also learned that the “High Value Detainee Interrogation Group, which the Department of Justice announced last August — more than four months ago — is not yet operational.”
The senators conclude that the president’s repeated admonitions that we are at war do not appear to “be reflected in the actions of some in the Executive branch.” But they note that the president can “reverse this error” and transfer the Christmas Day bomber to the Department of Defense.

Rubin comments:

This is a superb suggestion, which many conservative commentators have urged. There really isn’t reason not to do so — unless of course the criminalization of our national intelligence system and the self-imposed limits on our anti-terrorism efforts are in keeping with what the president wants. In that case, the actions of the executive branch have been in tune with Obama’s wishes, and we are all in a great deal of trouble. Let’s hope not.

The Obama administration’s treatment of Abdulmuttalab as a criminal with constitutional rights is farcical. It cannot be defended on the merits and the Obama administration hasn’t tried, though the relevant questions haven’t been put to it either. Obama administration officials have largely been content to pass the buck to FBI agents on the ground in Detroit. Will anyone think to ask President Obama if the buck stops with him? Senators Lieberman and Collins are performing a genuine public service in pressing the issue.
I haven’t understood why Obama persists in this error. The Weekly Standard’s Richard Starr posits a possible explanation. If the administration were to rectify its error in the case of Abdulmutallab, it would raise the question why it refuses to rectify the same or similar error in the case of KSM et al. in New York. Indeed, it would in a sense be conceding the error.
I am afraid that there is an underlying source of the error in the erroneous principles that are guiding the Obama administration. As to acts of terorrorism committed in the United States, the Obama administration seems to have established a presumption that criminal treatment is appropriate.
Referring to the Abdulmutallab case over the weekend, the Washington Post wrote of the administration’s “knee-jerk default to a crime-and-punishment model.” But the crime-and-punishment model is not knee-jerk. It is the end result of a deliberative process under which Atttorney General Holder promulgated his inscrutable protocol.
Under the protocol, KSM was assigned for trial in federal court rather than before a military commission in Guantanamo. The trial of Abdulmutallab in federal court as a criminal rather than in a military commission as an enemy combatant appears to comport with the protocol. If the protocol is wrong in principle, decisions that comport with it will frequently err as well. Michael Isikoff provides some evidence of the Obama administration operating in a deliberative process under an erroneous principle in Abdulmutallab’s case.
The question remains: where does Obama stand on the case of Abdulmutallab? Does the buck stop with him, with Eric Holder or with the local FBI agents on the ground in New York. Stephen Hayes elaborates on the manifold absurdities at play in the administration’s pronouncements on theAbdulmutallab case. As Hayes rightly notes, these pronouncements call into question the administration’s understanding that we are engaged in a war.

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