Mukasey Shreds Obama Administration's Legal Claims on Christmas Bomber [Andy McCarthy]
Every word of former AG Michael Mukasey's op-ed in the Washington Post this morning is required reading. But the direct comments on the Obama administration's legal claims are especially worthy:
Contrary to what some in government have suggested, 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. 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. . . .
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.
What of Richard Reid, the "shoe bomber," who was warned of his Miranda rights and prosecuted in a civilian court? He was arrested in December 2001, before procedures were put in place that would have allowed for an outcome that might have included not only conviction but also exploitation of his intelligence value, if possible. His case does not recommend the same procedure in Abdulmutallab's.
As I explained in a column last week, Attorney General Holder badly misstated the Padillacase in his letter to Senator McConnell. I discussed the Obama administration's misplaced reliance on the Reid case in a column yesterday — and had more thoughts on Padilla, here. Bill Burck and Dana Perino have a course in Bush counterterrorism, here. The former AG's observations should put the legal controversy to rest, though . . . not that it will.
Taylor's Knockout Punch on Miranda Idiocy [Bill Burck & Dana Perino]
The Obama administration's claim that criticism of its handling of Abdulmutallab is pure partisanship takes another big hit today. Stuart Taylor — formerly of the New York Timesand currently with the National Journal, neither of which is particularly noted for its right-wing zealotry — delivers a knockout punch in his column today. And Taylor himself is far from a Republican partisan. Here are some excerpts, but the whole thing is very much worth reading.
Reasonable people disagree about how much coercion interrogators should use to extract potentially lifesaving information from terrorists. (None at all, President Obama unwisely ordered soon after taking office.)
But no reasonable person could doubt that starting out with "you have the right to remain silent" is not the way to save lives.
Yet this is essentially the policy into which the Obama administration has locked itself by insisting that it did the right thing when it read Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, his Miranda rights after only 50 minutes of questioning and a hospital visit. . . .
This is not to deny that bypassing Miranda would leave unresolved how much evidence about a suspect should be required to justify incommunicado detention and interrogation; how harshly he should be interrogated; and for how long.
Those are hard questions. The easy one is whether Obama's policy of Mirandizing terrorist suspects can be squared with Obama's exhortation in his State of the Union address: "Let's try common sense." It cannot be.
And, on a related topic -- military commissions vs. civilian trials:
Obama Takes Over 9/11 Trials, Commissions Back on Table [Daniel Foster]
President Obama has trumped Attorney General Eric Holder and taken control of the decision on where to try 9/11 terrorists, according to the Washington Post. The move signals "a recognition that the administration had mishandled the process and triggered a political backlash."
The president seems to have realized that Holder, who was initially given wide latitude on the trials, has been politically tone-deaf in his handling of the case so far. Moreover, the attorney general, previously adamant about the need for a civilian trial, is now suggesting that military commissions are back on the table:
Administration officials acknowledge that Holder and Obama advisers were unable to build political support for the trial. And Holder, in an interview Thursday, left open the possibility that Mohammed's trial could be switched to a military commission, although he said that is not his personal and legal preference.
"At the end of the day, wherever this case is tried, in whatever forum, what we have to ensure is that it's done as transparently as possible and with adherence to all the rules," Holder said. "If we do that, I'm not sure the location or even the forum is as important as what the world sees in that proceeding."
Obama's entry into the decision-making process was spurred, as well, by bipartisan support in Congress for efforts to cut off funding for the trials unless a safe venue could be found. Sources in the White House said they are working on a potential deal with Congress that would include fixes on both the 9/11 trial and broader questions of detainee policy. They said the decision will be made soon.
Re: Obama Takes Over 9/11 Trials, Commissions Back on Table [Shannen Coffin]
The Post story that Daniel discusses below is gabberflasting. It is now "breaking news" in this town when the president of the United States inserts himself into the "process" of deciding one of the more important national-security issues that his administration faces — how to deal with the mastermind of September 11. The harmonizing of intelligence, national-security, and law-enforcement interests within his administration should have called on the president's ultimate executive decisionmaking authority from day one. The notion that an "independent" (where it's convenient) attorney general should be making these decisions without any guidance from the chief executive raises all the more questions about who is running the asylum.
One particular sentence in the report just tickled me: "Obama gave little clue about how the administration will proceed when he was asked Sunday about the trial." Shouldn't that read "had little clue"?
The President Takes Charge [Bill Burck & Dana Perino]
Well, well, well. What do we have here?
When Attorney General Eric Holder announced the Justice Department’s plans to try KSM in civilian court in Manhattan last November, we were skeptical — both that the trial would really take place in Manhattan, and that Holder had really made the decision, as the administration claimed, with no input from the White House. As we recommended he do back then (but were pessimistic would happen), the president has overruled the attorney general and taken over the process. According to the Washington Post, Obama is now going to get personally involved in finding a new venue for the KSM trial.
The ham-handed announcement of the trial’s coming to NYC was met with enthusiastic rejection across the board (even politicians who initially supported the idea, such as New York State senators Chuck Schumer and Kirsten Gillibrand and New York City mayor Michael Bloomberg, wisely flip-flopped). Plus, as we have discussed before, the administration has made, and the president’s chief spokesperson continues to make, extremely prejudicial comments about KSM’s guilt and supposedly inevitable execution, which undermine KSM’s right to a fair trial in civilian court.
Senate GOP: White House Misleading On Abdulmutallab [Daniel Foster]
Senate Republicans issued a memo today cataloging apparent contradictions between administration officials' accounts of the events leading up to the decision to Mirandize Umar Farouk Abdulmutallab.
The memo suggests that White House Press Secretary Robert Gibbs, in an MSNBC interview Thursday morning, contradicted the sworn Congressional testimony of national-security officials when he suggested that intelligence agencies "came to an agreement" with the Justice Department on the decision to process Abdulmutallab as a civilian criminal.
As I noted yesterday, Gibbs backed off that characterization as the interview progressed, and said only that the FBI "disseminated intelligence" to sister agencies. That was language consistent with Attorney General Eric Holder, who told Senate Republicans only that top national-security officials were "informed" of the decision to Mirandize the Christmas Day bomber.
Taylor's Knockout Punch on Miranda Idiocy [Bill Burck & Dana Perino]
The Obama administration's claim that criticism of its handling of Abdulmutallab is pure partisanship takes another big hit today. Stuart Taylor — formerly of the New York Timesand currently with the National Journal, neither of which is particularly noted for its right-wing zealotry — delivers a knockout punch in his column today. And Taylor himself is far from a Republican partisan. Here are some excerpts, but the whole thing is very much worth reading.
Reasonable people disagree about how much coercion interrogators should use to extract potentially lifesaving information from terrorists. (None at all, President Obama unwisely ordered soon after taking office.)
But no reasonable person could doubt that starting out with "you have the right to remain silent" is not the way to save lives.
Yet this is essentially the policy into which the Obama administration has locked itself by insisting that it did the right thing when it read Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, his Miranda rights after only 50 minutes of questioning and a hospital visit. . . .
This is not to deny that bypassing Miranda would leave unresolved how much evidence about a suspect should be required to justify incommunicado detention and interrogation; how harshly he should be interrogated; and for how long.
Those are hard questions. The easy one is whether Obama's policy of Mirandizing terrorist suspects can be squared with Obama's exhortation in his State of the Union address: "Let's try common sense." It cannot be.
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