Obama’s folly, part 2

We wrote about Attorney General Eric Holder’s five-page letter to Senate Minority Leader Mitch McConnell in “Obama’s folly.” Holder’s letter is a key document in the Obama administration’s defense of its behavior in the case of the Nigerian Christmas day bomber Umar Abdulmutallab.
The administration is in a deep hole in the Abdulmutallab case. In the letter Holder keeps digging furiously. Attention must be paid.
The FBI provided Abdulmutallab with a Miranda warning after his initial 50-minute interview with him. Abdulmutallab got himself a lawyer and promptly clammed up. In the letter’s opening, however, Holder discloses that Abdulmutallab has subsequently provided additional intelligence to the FBI. Steve Hayes discusses this administration’s disclosure in this week’s Weekly Standard editorial.
Is the information being provided under some standard arrangement under federal criminal law in which the defendant is to be provided something in exchange for information? Holder doesn’t say. If Abdulmutallab waived his rights, however, one can assume Holder would have said so, but he doesn’t say that either.
Holder suggests that the additional information obviates Abdulmutallab’s invocation of his “rights” upon the agents’ provision of the Miranda warning. Both the lapse of time and the public disclosure of his cooperation, whatever it is, undercut the implicit claim that no harm has been done by cloaking Abdulmutallab with the constitutional rights of a common criminal.
Holder portrays the administration’s treatment of Abdulmutallab as standard practice that is conducive to intelligence gathering. He also argues that Abdulmutallab’s treatment as a criminal was compelled by applicable law. Andrew McCarthy unpacks and dispatches these arguments in an excellent NRO column. Here is the crux:

What is at issue is the subset of terrorism cases that involve actual terrorists carrying out actual terror attacks — the operatives our military kills or detains as war prisoners if it encounters them on the battlefield overseas. It is perverse to give such jihadists more generous rights if they are fortunate enough to get into the United States, where they stand to do the greatest harm to civilians. Protecting civilians is the goal of humanitarian law; in effect, the policy Holder recommends gives the worst offenders the best privileges.
Yes, as Holder recounts, shoe-bomber Richard Reid was Mirandized and given civilian due process. That happened in December 2001, three months before the military-commission system was established. But even if you give the attorney general that one, it was a mistake, not a precedent — and the legal landscape is dramatically different now. Throughout the 2008 campaign, Holder and Obama derided Bush-era counterterrorism policies: Who knew Holder would be citing Bush as an authority by the end of his first year in office?
But President Bush is not in charge anymore. President Obama is. When an al-Qaeda operative, fresh out of the training camps in Yemen, comes into our country trying to commit a massacre — and almost certainly aware of similar, ongoing plots — it’s up to President Obama to decide what to do. It doesn’t matter what Bush did. It doesn’t matter what the FBI’s procedures are. It doesn’t matter that his attorney general wants to use the hamstringing protocols of the civilian system or that other relevant agencies appear not to object. And it doesn’t matter that some judges, academics, and leftists have an aversion to military processes. How to treat that terrorist is the president’s call. Commanders-in-chief don’t get to lay low in the tall grass while their attorneys general dilate on points of procedure.

Abdulmutallab was charged in federal court on December 27. Yet the administration could still have designated Abdulmutallab an enemy combatant and subjected him to additional interrogation. Holder’s letter reveals that the administration’s national security apparatus deliberated over Abdulmutallab’s status on January 5:

In the days following December 25 — including during a meeting with the President and other senior members of his national security team on January 5 — high-level discussions ensued within the Administration in which the possibility of detaining Mr. Abdulmutallab under the law of war was explicitly discussed. No agency supported the use of law of war detention for Abdulmutallab, and no agency has since advised the Department of Justice that an alternative course of action should have been, or should now be, pursued.

Administration officials (Leiter, Blair and Napolitano) have of course testified they were not consulted about Abdulmutallab’s treatment as a criminal rather than an enemy combatant prior to the filing of charges against him. Holder’s letter asserts that they have not dissented from the treatment of Abdulmutallab since that time.
Holder only expressly adduces the concurrence of other agencies. One is left to infer that Obama is on board with the decision to treat Abdulmutallab as a common criminal. Obama is, after all the president. If he disagrees with Holder, as McCarthy suggests, he has a majority of one to support him. Although Eric Holder is the administration’s lightning rod in the case of Abdulmutallab, it represents Obama’s folly.
FOOTNOTE: Dana Perino and Bill Burck also comment on Holder’s letter. They link to McCarthy’s column addressing Holder’s claim that 300 terrorists were convicted in the criminal justice system during the Bush administration. Burck’s NRO column preceding the release of Holder’s letter is also helpful. Finally, Shannen Coffin’s discussion of Holder’s treatment of the case law cited in the letter is must reading.

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