Andy McCarthy tries to do a snow job on Jose Padilla and Ali Saleh al-Marri:
Jose Padilla (who, unlike Abdulmutallab, is an American citizen) was designated an enemy combatant and held without trial after being arrested inside the United States; so was Ali al-Marri. Ultimately, both were prosecuted in the civilian system — but only years later, after the intelligence community had ample opportunity to exhaust their capacity to provide useful information.
In fact, they were put back in the criminal justice system because the courts were about to wipe the floor with the Bush administration over Padilla, and as I've reported before, the Obama administration over al-Marri. They weren't put back in because their capacity to provide useful information had been "exhausted." What I love about this line of argument is that it directly contradicts the ones Republicans make in favor of detaining Umar Abdulmutallab in this manner. Republicans argue that military detention allows the government to get otherwise "perishable" intelligence quickly, but Padilla was held for three and a half years in military custody, al-Marri for nearly eight. That's some pretty non-perishable intelligence.
Moreover, putting people in the criminal justice system doesn't preclude further intelligence gathering. Law enforcement and intelligence can go back to those wells whenever they want. McCarthy simply believes that suspected terrorists require "more" punishment than the criminal justice system can mete out -- his opinion has nothing to do with intelligence or national security.
And on the specific point that Padilla and al-Marri were exhausted for intelligence while in military custody, Jane Mayer says otherwise:
Confusion on this point may derive from the Bush Administration’s controversial handling of two suspected terrorists, José Padilla and Ali Saleh Kahlah al-Marri. Both men were arrested in the U.S. by law-enforcement officials, and indicted on criminal charges. But Bush declared Padilla and Marri to be “enemy combatants,” which, he argued, meant that they could be transferred to military custody, for interrogation and detention without trial. (Neither suspect provided useful intelligence.) The cases provoked legal challenges, and in both instances appeals courts ruled that Bush had overstepped his power. The Administration, not willing to risk a Supreme Court defeat, returned the suspects to the civilian system.
It's not entirely true that al-Marri was useless as an intelligence source, however. Once al-Marri was taken out of complete isolation in a military brig, according to his attorney, he spent "hours" helping investigators correct errors in intelligence they had previously gathered.
So basically, we put two terrorists in military detention for several years and got scratch zero out of it before they were transferred to the civilian justice system -- at which point one of the detainees started talking. McCarthy would like us to repeat this process just for funsies.
-- A. Serwer