Anyone who wants to understand the farcical falsehoods promulgated by the Obama administration to justify its treatment of Umar Abdulmutallab as a criminal defendant can’t do better than read former Attorney General Michael Mukasey’s Washington Post column “Where the U.S. went wrong on the Christmas day bomber.”
For starters, however, it seems unlikely to me this was the title Mr. Mukasey gave the column. I would guess that where the Post headline reads “U.S.,” Mukasey may have specified “Holder” or “Obama,” or “the Obama administration.” In any event, Mukasey’s column can best be read as Mukasey’s rebuttal of Attorney General Holder’s highly misleading five-page letter to Senate Minority Leader Mitch McConnell.
Mukasey concedes that it was entirely reasonable for the FBI to be contacted and for the FBI to take Abdulmutallab into custody. “But contrary to what some in government have suggested” — that would include Holder in his letter to McConnell — “that Abdulmutallab was taken into custody by the FBI did not mean, legally or as a matter of policy, that he had to be treated as a criminal defendant at any point.” Here Mukasey cites a relevant case that makes the point:
Consider: In 1942, German saboteurs landed on Long Island and in Florida. That they were eventually captured by the FBI did not stop President Franklin Roosevelt from directing that they be treated as unlawful enemy combatants. They were ultimately tried before a military commission in Washington and executed. Their status had nothing to do with who held them, and their treatment was upheld in all respects by the Supreme Court.
(The famous Supreme Court case to which Mukasey alludes is Ex Parte Quirin.) Mukasey then addresses the September 2008 FBI guidelines promulgated by Mukasey and cited in Holder’s letter. Under them, he explains, FBI custody is simply irrelevant to the determination of Abdulmutallab’s status as a criminal defendant rather than an enemy combatant. This is not a difficult point.
Holder’s letter also suggests that Abdulmutallab’s apprehension in the United States dictated his treatment as a criminal defendant, in part relying on a case decided by Mukasey when he was a federal district court judge. Here Mukasey seeks to instruct John Brennan as well as Holder:
Contrary to what the White House homeland security adviser and the attorney general have suggested, if not said outright, not only was there no authority or policy in place under the Bush administration requiring that all those detained in the United States be treated as criminal defendants, but relevant authority was and is the opposite. The Supreme Court held in Hamdi v. Rumsfeld that “indefinite detention for the purpose of interrogation is not authorized” but also said in the same case that detention for the purpose of neutralizing an unlawful enemy combatant is permissible and that the only right of such a combatant — even if he is a citizen, and Abdulmutallab is not — is to challenge his classification as such a combatant in a habeas corpus proceeding. This does not include the right to remain silent or the right to a lawyer, but only such legal assistance as may be necessary to file a habeas corpus petition within a reasonable time. That was the basis for my ruling in Padilla v. Rumsfeld that, as a convenience to the court and not for any constitutionally based reason, he had to consult with a lawyer for the limited purpose of filing a habeas petition, but that interrogation need not stop.
These too are not difficult points to grasp, and they are irrefutable. “There was thus no legal or policy compulsion to treat Abdulmutallab as a criminal defendant,” Mukasey concludes, “at least initially, and every reason to treat him as an intelligence asset to be exploited promptly.”
Mukasey’s column is entirely consistent with Stuart Taylor’s review of the relevant law in his biting National Journal column “More Miranda idiocy.” Even though Mukasey is far more tactful than Taylor, Mukasey’s colulmn should be a source of considerable embarrassment for those who take the public teachings of the Obama administration on the legal issues incident to the war on terrorism seriously.