Following weeks of strong bipartisan criticism of their handling of terror trials and detainees, Attorney General Eric Holder released a letter yesterday defending the Obama administration's criminal justice system approach to prosecuting the war against al-Qaeda. Defending his administration's handling of the Flight 253 terrorist, Holder wrote: "I made the decision to charge Mr. Abdulmutallab with federal crimes, and to seek his detention in connection with those charges, the knowledge of, and with no objection from, all other relevant departments of the government."
First, this statement directly contradicts the sworn Congressional testimony of Director of National Intelligence Adm. Dennis Blair who, when asked by Sen. Susan Collins (R-ME) under oath if he had been consulted about how Abdulmutallab should have been interrogated, responded: "I was not consulted." Under intense political pressure from the White House, Blair has since said his remarks were "misconstrued." But his politically-pressured retraction was not made under oath. His initial statement was. At the very minimum, Congress must demand that both Holder and Blair testify under oath to settle this contradiction.
But more importantly, both the personal pronouns and the underlying substance of Holder's letter speaks volumes about this administration's approach to protecting the American people. Holder wrote yesterday: "Neither advising Abdulmutallab of his Miranda rights nor granting him access to counsel prevents us from obtaining intelligence from him. On the contrary, history shows that the federal justice system is an extremely effective tool for gathering intelligence." Holder appears to be arguing that reading suspects their Miranda rights is a great way to get them to talk. But as American University law professor Kenneth Anderson notes: "The point of offering suspects the Miranda warning and associated rights is not in order to persuade them to talk, but in order to make sure they know they don’t have to and, if they have much in the way of brains, won’t."
And, in the past, Holder himself has even acknowledged this. The Weekly Standard's Stephen F. Hayes flags this exchange between CNN's Paula Zahn and Holder about American Taliban John Walker Lindh from January 28, 2002. Zahn: "How much pressure should they put on this man to get information out of him as they interrogate him?" Holder replied: "Well, I mean, it's hard to interrogate him at this point now that he has a lawyer and now that he is here in the United States. But to the extent that we can get information from him, I think we should."
Holder asserts throughout his letter, and in contradiction to his 2002 statement, that absolutely no intelligence was lost by treating Abdulmutallab like a common criminal. That is just not plausible. In a speech at The Heritage Foundation yesterday, Sen. Mitch McConnell (R-KY) said: "The fact remains that all the intelligence he possessed concerning the locations, training techniques, and communications methods of Al Qaeda in Yemen is perishable. Yemeni forces needed that information on December 25th, not six weeks later. Meanwhile, the American people are left to wonder whether, in place of interrogations, their safety depends on terrorists having families who can persuade them to talk."
The criminal justice system can and should play a role in our nation's fight against al Qaeda. But it should not dictate war-time policy for the entire Executive Branch. Again, from McConnell yesterday: "No one denies that a balance must be struck between preserving civil liberties and protecting the homeland. No one wants to sacrifice one for the other. But in many cases, all that’s involved is a simple question of judgment. And when a judgment call has to be made, our priorities should be clear: keeping Americans safe should always win out, within the law."
And who should be making those judgment calls? The American people did not elect Eric Holder to balance the interests of national security and civil liberties. They elected Barack Obama to do that.