Thursday, December 31, 2009;
FORMER VICE president Richard B. Cheney on Wednesday joined a Republican chorus criticizing the Obama administration's decision to charge alleged bomber Umar Farouk Abdulmutallab in federal court. Mr. Cheney and others argue that Mr. Abdulmutallab, who is accused of trying to down Northwest Flight 253 over Detroit on Christmas, should have been held as an enemy combatant and pumped for information, rather than read his Miranda rights and provided a lawyer. They further argue that the decision to shuttle him to federal court shows that President Obama is in denial about the dangers of terrorism.
This last claim has no merit. Just as it would be a mistake to approach all terrorist acts as a law enforcement challenge, so would it be imprudent to dispense with strong and available law enforcement tools, and to deal with all such incidents as acts of war. Recall that the Bush administration prosecuted shoe bomber Richard Reid in federal court for attempting to down a transatlantic flight using the same type of explosives allegedly found on Mr. Abdulmutallab. No one then questioned the Bush-Cheney administration's judgment or its resolve -- and rightly so.
The prospects for Mr. Abdulmutallab's prosecution are good. Multiple eyewitnesses can testify to the incident on the plane, and physical evidence, including the failed explosive device, has been recovered. If the case goes to trial, there is probably little danger that secret sources or methods will be exposed.
Yet part of the critics' argument is worthy of discussion. Mr. Abdulmutallab could have been detained without charge and interrogated outside of the constraints of federal rules to give the administration an opportunity to gather information in hopes of thwarting a future attack. The Supreme Court has acknowledged this authority, and the Obama administration has gone so far as to argue that Congress, through the 2001 Authorization for the Use of Military Force, gave the president the right to hold combatants indefinitely as long as a court of law rules that the initial detention was justified.
So why not bundle the Nigerian suspect to a secure location for intensive questioning by the CIA? First, because he already has been talking to authorities about his affiliation with al-Qaeda and the possibility of other attacks. Second, because he is no Khalid Sheik Mohammed -- he is not a seasoned al-Qaeda operator but a disturbed young man whom the group tried to use as cannon fodder.
Most important, the Bush administration's own experience has showed that holding suspects as enemy combatants creates more problems than it solves, because of the lack of due process and legal accountability. We have called for the creation of a national security court to govern presidential decisions to detain those who are too dangerous to release but against whom there is insufficient evidence to hold under federal criminal statutes. This authority could be valuable in interrogating those high up in a terrorist organization who are believed to possess significant operational information. It would be wasted on Mr. Abdulmutallab.