If a former Bush speechwriter like Marc Thiessen can pretend to be an intelligence expert in order to cover for his former boss and attack the new administration, why not a former press flack like Dana Perino? The Obama administration has responded to groundless criticism from Republicans over their handling of failed underwear bomber Umar Abdulmutallab by pointing out that they followed the same standard procedure that the Bush administration would have. Perino, along with Bush's former Deputy Counsel Bill Burck, tries to argue otherwise:
First, it would have gathered its entire national-security team, not just the Justice Department, to come to a consensus on whether Abdulmutallab might have significant intelligence and whether that could be better obtained by designating him as an enemy combatant or a criminal defendant. If they needed time to figure this out, they could have held him as a material witness without charging him with a crime. If the consensus was that Abdulmutallab would be more open to divulging information if he were treated as a criminal defendant, then he would have been charged in the civilian system, just as has happened now. If the consensus instead was that his interrogation as an enemy combatant, without a right to remain silent and without the presence of a lawyer, would be more fruitful, he would have been designated as an enemy combatant.
This is reportedly what the administration did. None of the other members of the national security team objected. It was kind of like on Dec. 27, 2001, when Donald Rumsfeld was asked about how shoe bomber Richard Reid was being handled and he said, "That's a matter that's in the hands of the law enforcement people and not the Department of Defense. And I don't have anything I would want to add."
Second, assuming Abdulmutallab had been designated as an enemy combatant, the interrogators would have thoroughly interrogated him to learn if he had information that could prevent a future attack.
Abdulmutallab wasn't designated an enemy combatant, and they interrogated him anyway. Imagine that!
Third, once they were satisfied that he had no additional intelligence to provide, he would have been transferred for prosecution to either the civilian or the military system. The Bush administration would have proved his guilt using the 200 witnesses on the plane and the bomb in his underwear, not his un-Mirandized statements to interrogators (which would have been inadmissible).
On the issue of shoe bomber Richard Reid being read his Miranda rights, Perino and Burck argue that the military commissions weren't ready yet, and that's why he was tried in civilian court:
Richard Reid’s failed attack occurred on Dec. 22, 2001, and he was arrested the same day. Reid was charged in a criminal complaint a few days later. Richard Reid is not a U.S. citizen (he’s a citizen of the U.K.). As such, he could have been subject to President Bush’s military order. In late December 2001, however, there were no military commissions in operation, Guantanamo was not yet open to hold detainees, and no one was being held in the U.S. as an enemy combatant. By contrast, there was a well-established civilian system to handle Reid, and that system had clear rules mandated by the Supreme Court on how to treat criminal defendants, including reading them their Miranda rights shortly after arrest and respecting their right to remain silent.
This argument is incoherent. If the Bush administration really believed that holding Reid in military detention would have been more useful, they could have held him indefinitely until the commissions were ready. But because issuing someone their Miranda rights has no bearing on intelligence collection whatsoever, and because the criminal justice system is perfectly capable of handling terrorists, they tried him in civilian court.
Perino and Burck provide two examples of terrorist suspects, Jose Padilla, and Ali Saleh al-Marri, who were captured on American soil and held as enemy combatants in military detention and then transferred to the criminal justice system. The only problem is that neither of these men provided any intelligence while under military detention, according Jane Mayer, whose reporting is confirmed today in an op-ed by former FBI interrogator Ali Soufan. In fact, in al-Marri's case, he didn't start talking until after he was released from military detention, which just goes to show how useless this option is in the first place. It's also not clear that it's legal for the government to do this, and both the Obama and Bush administrations dodged Supreme Court cases on the issue.
At any rate, what Perino and Burck are essentially arguing is that Bush either would have done things exactly the way Obama did them, except if they had chosen to do something dumb and possibly illegal that might have prevented the FBI from getting intelligence from Abdulmutallab in a timely fashion.
You gotta love this conclusion:
The suspected terrorist does have a limited right to have a lawyer assist him in challenging his detention as an enemy combatant, but there is no right to have a lawyer during interrogation, and there is no right to remain silent.
And what would they do if Abdulmutallab just decided not to talk, as al-Marri did for nearly eight years? Nothing, and all that "actionable intelligence" conservatives shrieked about the government losing could have actually been lost. Personally, I prefer the option where the government obtains useful information reasonably quickly, but that's just me.
-- A. Serwer