Earlier this morning, I discussed the GOP's concern-trolling over the failed underwear bombing and how it's helped al-Qaeda achieve a propaganda victory, all despite an embarrassing operational failure. But it's also worth looking at how the GOP's insistence on say, holding Umar Abdulmutallab as an enemy combatant under the mistaken belief that he would be denied an attorney (or in some cases, insisting that he be tortured) has affected our public discourse.
Here's the Washington Post weighing in on Saturday on the "controversy" surrounding the administration's decision to follow the law and treat Abdulmutallab like a criminal:
The Obama administration had three options: It could charge him in federal court. It could detain him as an enemy belligerent. Or it could hold him for prolonged questioning and later indict him, ensuring that nothing Mr. Abdulmutallab said during questioning was used against him in court.
It is now clear that the administration did not give serious thought to anything but Door No. 1. This was myopic, irresponsible and potentially dangerous.
Whether to charge terrorism suspects or hold and interrogate them is a judgment call. We originally supported the administration's decision in the Abdulmutallab case, assuming that it had been made after due consideration. But the decision to try Mr. Abdulmutallab turns out to have resulted not from a deliberative process but as a knee-jerk default to a crime-and-punishment model.
The Post is essentially demanding a Committee to Follow The Fifth Amendment, rendering the government's obligation to the law meaningless and arbitrary. Simply deciding that Abdulmutallab was an "enemy combatant" wouldn't have denied him a lawyer, and it would reinforce the idea that the entire world is a "battlefield" because indefinite detention is only legally appropriate in a battlefield context. Essentially, it would be endorsing the notion that the U.S. government can deprive anyone, anywhere of their liberty indefinitely if it simply suspects them of being guilty of a particular crime. It may not seem so threatening in a context where the evidence is so heavily weighted against the suspect in question -- but that doesn't make it any less lawless.
Abdulmutallab was captured on American soil after attempting to commit a crime against civilians. To say he was on a "battlefield" and could be detained like a fighter is to say that the Fifth Amendment, which says that you cannot be deprived of liberty without due process of law, is entirely optional.
Meanwhile, this op-ed completely contradicts the one they published on December 31:
So why not bundle the Nigerian suspect to a secure location for intensive questioning by the CIA? First, because he already has been talking to authorities about his affiliation with al-Qaeda and the possibility of other attacks. Second, because he is no Khalid Sheik Mohammed -- he is not a seasoned al-Qaeda operator but a disturbed young man whom the group tried to use as cannon fodder.
Most important, the Bush administration's own experience has showed that holding suspects as enemy combatants creates more problems than it solves, because of the lack of due process and legal accountability. We have called for the creation of a national security court to govern presidential decisions to detain those who are too dangerous to release but against whom there is insufficient evidence to hold under federal criminal statutes. This authority could be valuable in interrogating those high up in a terrorist organization who are believed to possess significant operational information. It would be wasted on Mr. Abdulmutallab.
There's been nothing that's happened to suggest that Abdulmutallab is any less "cannon fodder" than he was on December 31. According to the AP, the FBI interrogated Abdulmutallab at length before mirandizing him -- mirandizing the suspect was only necessary if they wanted to use the information they were getting in court, not for intelligence purposes. The Bush administration's selective approach to the law, repeated in some cases by the current administration, hasn't stopped "creating more problems" than it solves.
Rather, the public discourse has shifted right given the GOP's ability to turn a non-issue into a scandal, and in its mindless fetish for positioning itself between two perceived extremes (in this case waterboarding Abdulmutallab or charging him in court) the Washington Post editorial board has decided to reposition itself more comfortably in the "center," which means arguing that the national security higher-ups should convene on any given day and decide whether or not the law should be followed.
-- A. Serwer
