Chris Wallace interviewed Deputy National Security Adviser John Brennan on FOX News Sunday this morning. The interview transcript will be posted on RealClearPolitics this afternoon. At the moment I’m writing from memory.
In the middle of the interview Wallace asked Brennan why the administration was treating Nigerian terrorist bomber Umar Abdulmutallab as a criminal defendant rather than an enemy combatant. Wallace referred to the fact that Abdulmuttalab had reportedly been cooperating with authorities until he obtained a lawyer.
Brennan declined to challenge the premise of the question, but he talked a bit around the question. He stated that Abdulmutallab was apprehended in Detroit. He referred to the treatment of Richard Reid and others by the Bush administration as criminal defendants. He asserted that Abdulmutallab might start talking at a later date when it may serve his interest in the criminal process. He emphasized that the determination regarding Abdulmutallab’s treatment was made by the Department of Justice.
Eureka! The DoJ determination takes us back to the administration’s treatment of Khalid Sheik Mohammed as a criminal defendant. No reason of law or justice, history or tradition, supports the trial of Khalid Sheikh Mohammed et al. in federal court. Indeed, as Thomas Sowell observed, it is something of an obscenity.
Cloaking Khalid Sheikh Mohammed et al. with the constitutional protections afforded American citizens comes at a steep price. In the case of Omar Abdulmutallab the cost is foregone intelligence regarding the planning of future attacks on American citizens.
Why is the Obama administration paying the price? In his interview with Wallace, Brennan simply stated and reiterated the conclusion. Missing is any statement of the rationale that supports the conclusion. The Obama administration is stalwart in its refusal to articulate the rationale supporting the treatment of particular perpetrators as criminal defendants rather than enemy combatants.
Attorney General Holder’s announcement of the “forum decisions for 10 Guantanamo Bay detainees” likewise lacked the statement of a rationale. Addressing KSM et al., here is what Holder said:
I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years. The alleged 9/11 conspirators will stand trial in our justice system before an impartial jury under long-established rules and procedures….
[M]y decision as to whether to proceed in federal courts or military commissions was based on a protocol that the Departments of Justice and Defense developed and that was announced in July. Because many cases could be prosecuted in either federal courts or military commissions, that protocol sets forth a number of factors – including the nature of the offense, the location in which the offense occurred, the identity of the victims, and the manner in which the case was investigated – that must be considered. In consultation with the Secretary of Defense, I looked at all the relevant factors and made case by case decisions for each detainee.
In his announcement Holder never got around to articulating the rationale or applying it to the cases. He left the rationale unstated. It is, you might say, the dove that dare not speak its name.
At the conclusion of his announcement Holder stated: “For over two hundred years, our nation has relied on a faithful adherence to the rule of law to bring criminals to justice and provide accountability to victims.”
But the United States has never tried enemy leaders responsible for acts of war in civilian courts. Never before in American history has the United States brought its martial enemies to trial in a civilian court and cloaked them with the protections of the United States Constitution. Someone in a position to do so really ought to question responsible administration officials such as Holder and Brennan in a forum designed to secure a full statement of reasons accounting for the administration’s actions.
UPDATE: Byron York reports on Brennan’s FNS interview here. RCP has posted the transcript of the Brennan interview here.
JOHN adds: Here is the full transcript of the relevant portion of this morning’s interview:
WALLACE: Perhaps the most controversial step that President Obama took after the Christmas day terror attack was to charge Abdulmutallab as a criminal defendant.
He was cooperating with authorities. He was giving information about his links to Al Qaida. But after he got a criminal lawyer, he reportedly stopped cooperating, stopped talking.
Why not treat him as an enemy combatant, put him in a secret prison, use the interrogation techniques that President Obama has specifically approved, and try to get more information out of him?
BRENNAN: Well, we have an array of tools that we will use, and we want to make sure we maintain flexibility as far as how we deal with these individuals.
Now, let’s get the facts on the table. He was arrested on U.S. soil on a plane on — in the Detroit airplane. He was, in fact, talking to people who were detaining him.
There were people who were arrested during the previous administration — Richard Reid, the shoe bomber; Zacarias Moussaoui; Padilla; Iyman Faris; others — all were charged and tried in criminal court and sentenced, some cases to life imprisonment.
Just because somebody is going to be put into the criminal legal process does not mean that they’re — we don’t have other opportunities to get information from them.
WALLACE: But wait, wait. Let me ask you specifically. After Abdulmutallab got lawyered up, did he stop cooperating with authorities? Did he stop talking?
BRENNAN: I’m not going to address exactly what he did before or after he was — talked with his lawyer. We got information. We continue to have opportunities to do that.
As you talk with the lawyers and you talk with the individuals, as they recognize what they’re facing as far as the charges, conviction and possible sentence, there are opportunities to continue to talk about it.
FBI has some of the best interrogators and debriefers in the world, and so I’m confident that we’re going to continue to be able to work this system and see whether or not…
WALLACE: But once he gets his Miranda rights, he doesn’t have to speak at all.
BRENNAN: He doesn’t have to, but he knows that there are certain things that are on the table, and if he wants to, in fact, engage with us in a productive manner, there are ways that he can do that.
WALLACE: But why not treat him — you certainly had the right — have — had — still have the right to treat him as an enemy combatant. Why not do that?
If he has more actionable intelligence about future attacks, and you say there’s a real possibility of that, doesn’t the president have a responsibility to do everything legal he can to get that information?
BRENNAN: And the president has that responsibility, and the Department of Justice makes these determinations about what’s the best tool to use. And in this instance, we felt as though it was the best way to address Mr. Abdulmutallab’s case.
We’ll continue to look at each of the cases individually and proceed accordingly.
WALLACE: Just briefly, what’s the downside of treating him as an enemy combatant?
BRENNAN: There’s — there are no downsides or upsides in particular cases. What we’re trying to do is to make sure we apply the right tool in the right instance. In this case, we made a determination that he should be tried in U.S. criminal court.
SCOTT adds: The reason Brennan dances around Wallace’s questions is that there is no good answer to them. “There’s — there are no downsides or upsides in particular cases.” Absolutely, unbelievably pathetic.