Former AG Mukasey...Administration Screwed Up Christmas Day Bomber Case

Consider this a bit of a serious follow up to Crazy Uncle Larry's rant below.

Mukasey takes apart, piece by piece, what the administration is trying to pass off as it's legal and political (at least the "Bush did it too!" bits) justifications for how they dealt with Umar Farouk Abdulmutallab.

Now excerpt can do it justice so read the whole thing but here's the former AG on John Brennan's contention that eveyone should have known that "In FBI custody" meant "read his full rights". After running through the history of detaining enemies on our shores in WWII and Bush era policies and concludes...

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.

...There was thus no legal or policy compulsion to treat Abdulmutallab as a criminal defendant, at least initially, and every reason to treat him as an intelligence asset to be exploited promptly. The way to do that was not simply to have locally available field agents question him but, rather, to get in the room people who knew about al-Qaeda in Yemen, people who could obtain information, check that information against other available data and perhaps get feedback from others in the field before going back to Abdulmutallab to follow up where necessary, all the while keeping secret the fact of his cooperation. Once his former cohorts know he is providing information, they can act to make that information useless.

Nor is it an answer to say that Abdulmutallab resumed his cooperation even after he was warned of his rights. He did that after five weeks, when his family was flown here from Nigeria. The time was lost, and with it possibly useful information. Disclosing that he had resumed talking only compounded the problem by letting his former cohorts know that they had better cover their tracks.

No doubt Homeland Security Adviser John Brennan thinks Mukasey is serving the goals of al-Qaeda with this op-ed but that's because Brennan is an ass.

The constantly changing and often conflicting stories (Abdulmutallab was 'a lone extremist', they got all the intelligence they needed in the first 50 minutes, now they are are getting intelligence 6 weeks later with the help of his family, Bush did it too!, etc) from this administration shows they simply have no clue what to do.

It seems they know exactly what they want to do...treat a man sent by an international terrorist organization to kill hundreds of Americans exactly as they would treat an American citizen who stole a car. The problem is, it's politically untenable and so they have to fashion all of these stories in an effort to look tough and effective in order to hide their true views.

This is a fight Dick Cheney started almost the day after he and Bush left office and he along with others have had this administration on the run since then. It's funny what you can do when the facts and the American people are on your side.

posted by DrewM. at 01:00 PM

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