Posted by
Defend America on Friday, February 12, 2010 1:16:54 PM
Where the U.S. went wrong on the Christmas Day bomber
By Michael B. Mukasey
Friday, February 12, 2010
It seems to me unlikely that Umar Farouk Abdulmutallab will be known to
future generations of lawyers for generating any groundbreaking legal
principle or issue. But when it comes to illuminating our public
discourse about the "global war on terror," he is right up there with
Clarence Earl Gideon, Ernesto Miranda or even Jose Padilla. His case
presents in one tidy package virtually all the issues that arise from
the role intelligence plays in this struggle and compels us to examine
what the law requires and what it doesn't.
When Abdulmutallab tried to detonate a bomb concealed in his
undershorts, he committed a crime; no doubt about that. He could not
have acted alone; no doubt about that either. The bomb was not the sort
of infernal device readily produced by someone of his background, and
he quickly confirmed that he had been trained and sent by al-Qaeda in Yemen.
What to do and who should do it? It was entirely reasonable for the FBI
to be contacted and for that agency to take him into custody. But
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.
If possible, FBI custody is even less relevant today in determining
someone's status. In 1942 the FBI was exclusively a crime-fighting
organization. After Sept. 11, 2001, the agency's mission was expanded
beyond detection of crime and apprehension of criminals to include
gathering intelligence, helping to prevent and combat threats to
national security, and furthering U.S. foreign policy goals. Guidelines
put in place in 2003 and revised in September 2008 "do not require that
the FBI's information gathering activities be differentially labeled as
'criminal investigations,' 'national security investigations,' or
'foreign intelligence collections,' or that the categories of FBI
personnel who carry out investigations be segregated from each other
based on the subject areas in which they operate. Rather, all of the
FBI's legal authorities are available for deployment in all cases to
which they apply to protect the public from crimes and threats to the
national security and to further the United States' foreign
intelligence objectives."
http://www.washingtonpost.com/wp-dyn/content/article/2010/02/11/AR2010021103331.html