Originally published in the New York Daily News
By James Kirchick
There, he readily admits to his membership in the League of Extraordinarily Evil Men and taunts his captors with the news that, while he might have failed in murdering some 300 civilians, more such attacks are on the way. Told, however, that he has the right to remain silent and is under no compunction to divulge any information that might incriminate him in a court of law, this wanna-be mass murder quickly secures the services of a top-notch lawyer from a white shoe firm and, under the advice of his attorney, clams up.
This scenario, of course, is far from hypothetical, the stuff of college philosophy classrooms and speculative magazine articles. It is, rather, a fairly accurate description of the events that have transpired since last week, when the Nigerian-born Umar Farouk Abdulmutallab was subdued in his attempt to bring down a Delta flight headed for the Motor City. While the Al Qaeda-linked 23-year-old gave his interrogators a grim preview of what may soon come from the hive of Islamist terrorism that is the state of Yemen, he has, according to federal officials who spoke with the Washington Post, “restricted his cooperation since securing a defense attorney.”
We are thus presented with a version of the proverbial “ticking time bomb” scenario. Sure, the threat may not be as immediate as those regularly defused by Jack Bauer on “24.” The impending attacks may still be in the early planning stages, weeks or even months from execution. But now we have a real, live Al Qaeda operative – fresh from a foiled terrorist plot hatched in a country fast becoming the center point in the war on terror – in our hands.
Surely we ought to be using the tools at our disposal to find out the who, what, where, when and how of the next potential mass casualty attack.
Would it be inappropriate or immoral to pour water over the face and into the nose and mouth of Abdulmutallab, thus generating a drowning sensation (but not actually drowning him) to obtain this information? What about putting him in a small box with a caterpillar, a technique approved in a 2002 Justice Department memo for use against Al Qaeda mastermind Abu Zubaydah, who harbored a known fear of insects? Do you think slapping him across the face a few times – hard – is acceptable, if it might mean saving the lives of hundreds?
Some, including the President and senior members of his administration, believe these techniques amount to torture, and insist that their use should be proscribed in all situations, lest they besmirch American honor. But the question of whether or not to use these methods is now moot, given that Abdulmutallab has been bestowed constitutional rights afforded to American citizens – including the right to remain silent and the right to legal counsel.
The strongest arrow in the quiver of those who argue against the use of enhanced interrogation techniques is that those being questioned oftentimes do not possess reliable information regarding future terrorist attacks. But that stipulation does not apply to Abdulmutallab, who, even if his knowledge of ongoing terrorist operations is spotty and incomplete, has bragged that he knows what’s coming. The foreign minister of Yemen has confirmed Abdulmutallab’s warnings, expressing his concern that “hundreds” of Al Qaeda militants are planning attacks from his country.
In light of this information, how can the United States government, the highest duty of which is to protect American citizens, allow this vessel of valuable information to sit silent?
We wouldn’t be faced with this problem had the President decided to label Abdulmutallab an enemy combatant, thus depriving him of most of the rights enumerated in the Constitution. But in March of last year, the Justice Department announced that it would do away with the term and its legal implications, all in its quest to shut down the detention center at Guantanamo Bay. By placing Abdulmutallab under the purview of our criminal justice system, we no longer treat him as an intelligence asset in a broader war against a declared enemy, but rather as a defendant presumed innocent, whose heretofore-unavailable “rights” to due process and a fair and speedy trial take precedence over all else.
We never gave these rights to Nazi saboteurs captured during World War II; after extracting what useful information they possessed, President Franklin Roosevelt ordered them hanged. It’s difficult to see why today’s enemy combatants are not treated the same way.
Those who advocate treating foreign terrorists as civilian defendants point to the cases of Richard Reid, the British “shoe-bomber” arrested on a Miami-bound plane in December 2001, and Zacarias Moussaoui, the “20th hijacker” and French citizen taken into custody a month before the 9/11 atrocities on an immigration violation. Both men were processed in the early stages of the just-declared “War on Terror,” when the government was still in the preliminary stages of setting up the military commissions system. In hindsight, they ought to have been tried as enemy combatants, as it would have spared the United States a great deal of money and resources, not to mention made their interrogations more effective. Had Moussaoui and Reid not pled guilty, their trials would have inevitably turned into the circus that Khaled Sheikh Mohammed’s is bound to become.
The question of what type of legal status we ought to grant Umar Farouk Abdulmutallab remains a live question with serious implications for the national security of the United States. As the situation now stands, with an untold number of plots in the works, treating this man as a criminal defendant requires us to count upon the discretion and good will of a would-be mass murderer.
Originally published in the New York Daily News