Gitmo

Abdulmutallab, Barack Obama, Binyam Mohamed, Congress, Eric Holder, Flight 253, Gitmo, John Brennan

Obama administration misleads and repeats intelligence failures of the past

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The Obama administration apparently never made or discovered a mistake not worth repeating.

Counter-terror chief John Brennan incredibly states the four Members of Congress he briefed on Christmas Day should have assumed Flight 253 bomber Umar Farouk Abdulmuttalab was read Miranda warnings. Yet the administration has given mixed signals on if and when terrorists will be provided a right to remain silent and a lawyer. For example, during his Senate Judiciary Committee hearing on November 18, 2009, in response to a question by Senator Amy Klobuchar, AG Eric Holder said:

“The people in the field have been making determinations about giving Miranda warnings or not for some time now. They have had thousands of people come into their custody; only a small number of them have been given Miranda warnings.”

Minutes before that, Holder refused to offer a clear opinion to Senator Lindsay Graham on whether custody begins (for the purpose of civilian trials and Miranda warnings) at the same time a terrorist is captured.

Congressman Pete Hoekstra is disputing John Brennan on both the facts and his presumptions:

Brennan told NBC’s “Meet the Press” that Hoekstra and other top Congressional Republicans were told on Christmas Day that the Detroit bomber was in FBI custody, and should have known that he would therefore be read his rights according to Miranda.

But Hoekstra tells National Review Online that it would have been unreasonable to infer any such thing from his phone call with Brennan, which was brief and carried over an unsecured line.

“He never brought this stuff up,” Hoekstra says, adding that the FBI was the natural choice to hold Abdulmutallab until a detainment and interrogation strategy could be settled. “No, I wouldn’t expect the military to be at Detroit Airport waiting to arrest somebody,” Hoekstra adds, but he thought the administration would carefully investigate alternatives and consult with national security principals before moving forward with Miranda rights and other criminal procedures.

Abdulmuttalab was not read Miranda warnings until approximately 11 PM Eastern time and it is likely Brennan briefed the four well before that time. While it is not clear Brennan then told them whether Abdulmuttalab had provided intelligence during his initial interrogation, we now know that he was not initially read the warnings. President Barack Obama has acknowledged that some number of agencies and personnel failed in their responsibilities prior to the Christmas Day attack and Abdulmuttalab stopped providing intelligence when read “his” rights. (AG Holder directed that he be Mirandized prior to the FBI’s clean team attempting to question him further.)

In addition, we know that on Tuesday, February 2, 2010, the White House Press Secretary’s Office intentionally leaked “on background” sensitive information to the media that Abdulmuttalab was now cooperating:

Gibbs explained that the White House felt the need to provide background briefings about what Abdulmutallab was now saying in order to “contextualize” the information after receiving inquiries from reporters.

In other words, the Obama administration was getting pounded for providing a foreign terrorist Constitution rights not afforded them in that document. The White House felt the need to push back politically. They leaked secrets, made the intelligence we are now getting from Abdulmuttalab less valuable, and then falsely implied that Senator Kit Bond had disclosed the information.

Stupid is as stupid does, that Richard Reid was read “his” rights was a poor example to follow; that too was an intelligence failure.

Reid was arrested not three months into our invasion of Afghanistan, while the hunt was still under way in Tora Bora, and several months before Jose Padilla, Binyam Mohammed, Abu Zubaydah, and Ramzi Binalshibh were captured. Bush 43 could have ordered Reid turned over for military detention as his November 13, 2001 Military Order proscribed and yet he at least seemed to learn from his mistake; he ordered Padilla turned over for military detention and the rest eventually ended up at Gitmo.

After leaving Afghanistan, Reid traveled separately through several countries in the Middle East. His interrogation would likely have provided valuable intelligence on both al Qaeda in Afghanistan and the contacts he made during those travels. Only through the interrogations of other detainees was Reid’s accomplice, Saajid Badat, discovered and arrested, in England in November 2003. Ten months after Reid pled guilty, British police found Badat’s still armed shoe-bomb when they searched the home of his parents. Badat did not use his bomb for he had had a change of heart, immediately confessed to police, told them how to disarm the device, and pled guilty. Richard Reid was (and is) a committed jihadist who we should have interrogated.

Update, February 9, 2010: Ed Morrissey of HotAir.com reports that John Brennan is at it some more, in USA Today:

Politically motivated criticism and unfounded fear-mongering only serve the goals of al-Qaeda. Terrorists are not 100-feet tall. Nor do they deserve the abject fear they seek to instill. They will, however, be dismantled and destroyed, by our military, our intelligence services and our law enforcement community. And the notion that America’s counterterrorism professionals and America’s system of justice are unable to handle these murderous miscreants is absurd.

Ed also has a link there to Byron York’s deconstruction of Brennan’s op-ed.

9/11, Abdulmutallab, Barack Obama, DOJ, Eric Holder, Flight 253, Ghailani, Gitmo, Guantanamo, Khalid Sheikh Mohammed, War on Terror

David Rivkin and Marc Thiessen: A Tale of Two Terrorists (AG Holder sends a WOT canary in to destroy the Bush doctrine)

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Fn 12 on page 59 of the DOJ’s December 18, 2009 rebuttal to Ghailani’s Speedy Trial Motion to dismiss his case in federal court. Click to enlarge

In their Wall Street Journal op-ed today, David B. Rivkin and Marc Thiessen understated the significance of the Bush doctrine arguments filed on December 18, 2009 by the Department of Justice and used to rebut the Speedy Trial Motion to dismiss the federal case against Ahmed Ghailani. Surely U.S. Attorney Preet Bharara did not file contrary to the direction of Attorney General Eric Holder.

Mr. Bharara is no doubt a dedicated public servant. I have great personal faith in his abilities, loyalty to our Nation, and willingness to do all that he can to successfully prosecute Ahmed Ghailani to the fullest extent of the law. That said, Ghailani is President Barack Obama’s canary for the federal prosecution of Khalid Sheikh Mohammed, his 9/11 co-conspirators, and perhaps 40 more detainees currently being held at Guantanamo Bay. For the criminalization of the war against terror to succeed, Ghailani’s motion must fail. It is ironic and insidious that Obama and Holder must first defend what they seek to destroy:

On Dec. 18, 2009, days before the Christmas attack, the U.S. attorney for the Southern District of New York, Preet Bharara, made a secret filing in federal district court that was aimed at saving the prosecution of Ahmed Ghailani, another al Qaeda terrorist. Ghailani is facing charges for helping al Qaeda bomb U.S. embassies in Kenya and Tanzania in 1998. Ghailani argues that those charges should be dropped because lengthy CIA interrogations have denied him his constitutional right to a speedy trial.

Mr. Bharara, on behalf of the Justice Department, filed a memorandum with the court stating that Ghailani’s claims are dangerous and off the mark. Interrogating terrorists must come before criminal prosecution, he wrote in language so strong that even a redacted version of his filing (which we have obtained) serves as a searing indictment of the administration’s mishandling of Abdulmutallab.

“The United States was, and still is, at war with al Qaeda,” Mr. Bharara argued. “And because the group does not control territory as a sovereign nation does, the war effort relies less on deterrence than on disruption—on preventing attacks before they can occur. At the core of such disruption efforts is obtaining accurate intelligence about al Qaeda’s plans, leaders and capabilities.” … READ THE REST

Review again the image above and think about Flight 253 bomber Umar Farouk Abdulmuttalab. Then read this fuller excerpt from the DOJ’s rebuttal. It begins with the last paragraph on page 46 (B. Discussion) and runs through the partially transcribed paragraph on page 50. (Except where clarification was needed, citations and footnote numbering were omitted from this transcription):

First, the Government’s interest in protecting national security justified the delay in this case. The Supreme Court has stated that is “‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” If vindicating the Government’s interest in, for example, presenting a more effective case by seeking to persuade a co-defendant to testify against the defendant is a “valid” reason for delay, it follows that this most compelling of interests is “valid” as well.

Indeed, delay is more justifiable in this case than when the Government delays a trial to persuade a co-defendant to testify against the defendant (an in Vassell). In both cases, the defendant’s trial is intentionally delayed by the Government. But it is only in the Vassell-type situation that the Government delays the proceedings in order to put the defendant himself in a worse position at trial. The possibility that the delay will harm an individual’s defense at trial is the core concern of the Speedy Trial Clause, and the Vassell-type situation skirts close to this concern in that situation, then surely it may be put off in a case such as this — when the purpose for the delay was not to enhance the chances of convicting the defendant, but rather to obtain information that could be used to prevent future terrorist attacks against the nation by incapacitating others…

The defendant attempts to discredit the importance and relevance of national security in this case by calling it “an intentionally amorphous concept that can fluctuate depending on the specific aims that the Government seeks to protect.” But, however vague or overstated the invocation of national security could conceivably be in other contexts, there is nothing “amorphous” about the concept as applied here, and no question that the strength of the Government’s interest was at its zenith in this case. The defendant was a longstanding al Qaeda terrorist, and al Qaeda is the group responsible for the brutal murder of thousands of American citizens here and abroad. The United States was, and still is, at war with al Qaeda. And because the group does not control territory as a sovereign nation does, the war effort relies less on deterrence than on disruption — on preventing attacks before they occur. At the core of such disruption efforts is obtaining accurate intelligence about al Qaeda’s plans, leaders, and capabilities. [emphasis added mine]

In these circumstances, the Executive Branch’s decision initially to treat the defendant, a foreign national captured abroad in an al Qaeda safe house after a 14-hour gun battle, as an intelligence asset — to detain him abroad in order to detain vital, real-time intelligence about al Qaeda — warrants considerable deference. As the Supreme Court explained only last year:

In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches. Unlike the President and some designated Members of Congress, neither the Members of the Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security.

Boumediene; see also e.g. United States v. Moussaoui … cf. Central Intelligence Agency v. Sims.

The pdf of the DOJ’s rebuttal is in two parts, here and here, if you wish to download it.