April 28, 2011

Over the past two years, America has come alarmingly close to multiple large-scale attacks by terrorists linked to al-Qaeda. For President Obama to effectively secure this country against attacks, he must stop weakening the capabilities of the CIA and diminishing our intelligence-gathering efforts.

On April 10, for instance, it was publicly reported that Umar Patek had been apprehended by Pakistani officials. Patek is described by foreign and domestic intelligence officials as a central figure among Islamic extremists in Southeast Asia and is said to possess a “gold mine” of information about al-Qaeda sympathizers across the region. The Bush administration had offered a $1 million bounty for his capture in 2005.

Yet the CIA, it was reported this month, had taken no steps to detain or interrogate Patek. The CIA’s deeply diminished role in interrogating newly captured terrorists is one of several dangerous roadblocks that this administration has thrown up, constraining our ability to gather crucial intelligence and, ultimately, putting this country at grave risk.

The CIA’s reluctance to act is hardly surprising, given the second-guessing and retroactive inquiries to which it has been subjected in recent years. In April 2009 the president ordered the release of highly classified memos detailing the legal authority the CIA relied upon to guide its interrogation efforts after the Sept. 11, 2001, attacks. He also forced the CIA to limit its interrogation methods to those contained in the Army Field Manual, much of which is publicly available to the very terrorists who would be the subject of such interrogations.

In August 2009, Attorney General Eric Holder took the extraordinary step of appointing a special prosecutor to launch a criminal probe of the CIA’s interrogation efforts, an investigation that is ongoing. These actions are counterproductive and ignore the lessons of recent history. The 9/11 Commission had already concluded that the CIA was “institutionally risk-averse” because of precisely these types of threats of prosecution, which it said caused the CIA to fail to act in ways that might have prevented the Sept. 11 attacks. Instead of subjecting the CIA to a criminal probe of its response to the last major terrorist attack, the administration should be providing the agency with all the resources and encouragement necessary to stop the next terrorist attack.

This administration has lost sight of the reality that actionable intelligence — not criminal prosecution — is the only way our country can detect and foil the next al-Qaeda plot. Despite repeated terrorism attempts on our soil, and several close calls, there still does not appear to be a coherent protocol in place for acquiring such intelligence when high-value terrorists are apprehended. While testifying before the Senate Judiciary Committee in November 2009, Holder said there would be no need to interrogate Osama bin Laden if he were captured because there was already overwhelming evidence to convict him in a court of law.

Yet in February this year, Director of National Intelligence James Clapper told the Senate Select Committee on Intelligence that the administration still has not resolved how it would handle the detention or interrogation of bin Laden or other high-value targets such as Ayman al-Zawahiri if they were captured tomorrow. And last month, FBI Director Robert Mueller said that it continues to be the attorney general’s position that the FBI will administer Miranda warnings to high-level terrorists captured on American soil. As a consequence of this misguided approach, the would-be Christmas Day bomber was Mirandized shortly after his capture in 2009, costing us an opportunity to gain potentially invaluable timely intelligence from a foreign terrorist dispatched by al-Qaeda in the Arabian Peninsula.

These actions and policy statements demonstrate a dangerous return to the pre-Sept. 11 focus on a criminal-law solution to terrorism — an approach that the Sept. 11 commission found “contributed to widespread underestimation of the threat” posed by terrorism. The intelligence community should not be hampered in this way but instead allowed the crucial flexibility to pursue intelligence that will lead to the capture of those who are at war with the United States and committed to its destruction. Our intelligence officers need affirmation and support — not more constraints and second-guessing.

The writer, a senator from Alabama, is the former ranking Republican on the Judiciary Committee.