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A Case for Presidential Power

Posted on Jan 6, 2010

By Ruth Marcus

Much of the criticism of the Obama administration’s decision to bring criminal charges against the failed Christmas Day bomber is ill-informed, ill-intentioned or both. The move to file a criminal case does not reveal the administration’s supposed law enforcement-only mindset. It does not show President Barack Obama “trying to pretend we are not at war,” as former Vice President Dick Cheney alleged.

The clamor to have Umar Farouk Abdulmutallab declared an enemy combatant and hauled before a military tribunal ignores several inconvenient facts. Only two individuals seized on American soil—Jose Padilla and Ali Saleh Kahlah al-Marri—have been declared enemy combatants, and both ended up having that status dropped and their cases tried in federal court. Even enemy combatants, the Supreme Court has said, have the right to have a federal judge decide whether their detention is lawful. 

A military tribunal would provide many of the same protections about which critics complain: the presumption of innocence, proof beyond a reasonable doubt, access to counsel. The string-’em-up itch is understandable, but a military tribunal won’t soothe it. Indeed, the biggest difference between a federal trial and a military tribunal is that the court trial would probably take place sooner. And with less legal risk: In federal court there would be no argument about whether the court had jurisdiction over Abdulmutallab. 

All that said, I’m left with one nagging worry about the criminal charges—and an even bigger fear about the adequacy of the existing legal architecture for preventing terrorism.

The case first: Did the administration’s quick pivot to criminal charges—they were filed the next day—interfere with investigators’ ability to obtain maximum information from Abdulmutallab? What if other operatives had been deployed with similar devices? Wouldn’t it have been better to thoroughly interrogate Abdulmutallab—without offering Miranda warnings against self-incrimination, and without providing a lawyer whose first instruction was, no doubt, to stop talking?

Such questioning would not pre-empt criminal charges from being filed later. It would simply prevent prosecutors from using such statements, and information derived from them, in the criminal proceedings. If prosecutors can safely pursue a criminal case against alleged 9/11 mastermind Khalid Sheik Mohammed after 183 waterboardings, there’s not much risk in questioning Abdulmutallab. Given the available proof—the explosives he was carrying and the planeload of eyewitnesses—any first-year law student could win this case. 

Administration officials argue that this approach was not necessary because Abdulmutallab was already yakking away. “He proceeded to talk for quite some time and provided useful intelligence long before he obtained an attorney,” a senior administration official assured me. But the criminal charges were filed a scant 24 hours after the incident. Was that really enough time to exhaust Abdulmutallab’s informational value, no matter how small a fish he is?

Administration officials also argue they can continue to lean on Abdulmutallab to tell what he knows as part of a bargain for a shorter sentence or better treatment. Yes, but what’s called for here is not a leisurely conversation. The scripted minuet between prosecutor and defense counsel takes time. The value of terrorist information declines along with its freshness.

Which raises my larger concern: the flimsiness of the existing legal regime to hold and interrogate the Abdulmutallabs of the world. The problem is not whether the ultimate trial is conducted before a federal court or a military tribunal; Monday’s decision by a federal appeals court upholding the conviction of Zacarias Moussaoui offers another indication that federal courts can handle these cases.

The difficulty lies in how to deal with suspected terrorists at the outset. The Obama administration no doubt would recoil at the back-to-the-Bush-administration atmospherics of indefinitely detaining an enemy combatant on American soil. But what to do in cases like that of Padilla, where the evidence is still sketchy but the suspect too dangerous to remain loose? How to treat a suspect who, like Abdulmutallab, may be in possession of urgently needed information?

Benjamin Wittes and Colleen Peppard, in a paper for the Brookings Institution, propose giving the president power to detain noncitizens deemed to be an imperative threat for up to 14 days before seeking judicial authorization. After that, detention would be subject to court approval, renewed every six months. 

Obama once envisioned legislation outlining his authority to detain terrorists. He’s since backed away. That’s too bad, because a clearer legal regime might have helped the administration avoid just the kind of soft-on-terror heat it’s now taking.
Ruth Marcus’ e-mail address is marcusr(at symbol)
© 2010, Washington Post Writers Group


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By Paul J. Theis, January 9, 2010 at 10:21 am Link to this comment

gerard: I can’t be the only one who has wondered if the suicide bomber in Afghanistan (who killed seven CIA agents) was a double-agent all along (which is certainly possible), or if he was turned back into an Al Qaeda agent in response to recent US drone attacks in Pakistan.

On the subject of Obama administration critics, the most vocal perhaps being former VP Cheney, fortunately Dick (183 waterboardings!) Cheney doesn’t enjoy much credibilty with the American public these days. Apparently, most of us long ago learned to dismiss his authoritative-sounding voice.

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By gerard, January 8, 2010 at 9:47 pm Link to this comment

If we paid attention to why Al Qaeda is fighting the US—and in fact, its entire belief system —we would need to look at our record against the Muslim states in the Middle East.  Starting with Palestine, we are not only permitting, we are sending financial support to Israel and not even blinking when they overwhelm the much weaker, poorer Palestinians.    Furthermore, we have never blinked for sixty years while we tolerate the abuses. 
  Then there’s Iraq, with its total lack of WMDs, now laid waste and left in civil confusion and material destruction.
  Now Afghanistan with its poverty, lack of settled government, poor education and the grip of fundamentalist Islam holding it back from intellectual liberation. 
  Then there’s what appears to Iran as our basically unfair denial of the right to have nuclear weapons which both US and Israel as well as other states in the area possess in profusion.
  And there’s the more subtle “attitude thing”—the pervasive idea of American superiority and the automatic lack of regard for people who are different from the US concept of good/bad etc.  Plus the dark history of the Crusades still hanging over the heads of both Christians and Muslims, never faced, never talked about, never cleared, but hatred and suspicion piled up over centuries and allowed to fester with the outbreak of renewed “Christian fundamentalism” in the US—the mirror image of the hated “Muslim fundamentalism.”
  Until the roots are understood and eradicated, there is little hope for peace, especially since the US economy has become so dependent on war industries and expenditures. Will it be Yemen next?  Or Pakistan? How much of this killing can we stand before we ourselves are ruined? And how much of it could be helped by just a moderate amount of common sense and empathy?

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By NABNYC, January 8, 2010 at 4:46 pm Link to this comment

The way people throw around this term—enemy combatant—reminds me of a bad B movie from the 1950s, in which everybody who did anything out of the ordinary was called a communist. 

This Nigerian nut-bucket is not an enemy combatant.  He did not start a war against the U.S.  Neither did Nigeria.  Neither did the 18 hijackers from 9/11, for that matter, who hijacked four airplanes.  Which is a crime.  But it’s not a war. 

The goal of the right-wing is to eliminate all constitutional rights, all freedoms, everything that is decent about our legal system, and replace it with one largest fascist international torture and detention policy.  The 5 year old who won’t salute the flag?  Send them to a secret “black ops” prison in one of the stan countries.  People convicted on phony trumped-up charges mostly because they are associated with liberal causes?  Throw them in prison without charges.  Leave them there to rot.

This guy committed a crime.  He should be criminally charged and prosecuted.  We have no “war on terror.”  We instead have a “war on countries with oil or gas.”  No wonder they hate us.  If we got the hell out of where we don’t belong, I’ll bet the underpants-bombers would leave us alone, as would the hijackers.

Why is there so much coverage of this one loony?  An “attempted” terrorist act.  Why doesn’t the media cover every single attack by the U.S. as being terrorist acts?  Ask the people in the villages that are being bombed by the U.S. whether they consider the resulting slaughter of civilians to be a terrorist act?  How can we say we are against terrorism when we use it ourselves?  If we want to end the killing and maiming and bombing and burning, isn’t the correct way to do that to sit down at a peace table, have negotiations, end the wars, leave where we don’t belong? 

All this coverage for the underwear guy.  Little mention of the hundreds killed during the same time by U.s.l “drones” meaning bombs that blow up little children, destroy homes, kill people, tear off limbs.  Little mention of that.

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By Ed Harges, January 7, 2010 at 5:09 pm Link to this comment

American support for Israel is the primary source of the extreme hatred and
suicidal terrorism directed against the US. Our Zionist-muzzled mainstream
“news” media ignore the overwhelming evidence for this.

For example, we know that the suicide bomber who killed those CIA agents in
Afghanistan was radicalized specifically by the bloodthirsty 2008 Israeli assault on
Gaza, which was enthusiastically endorsed by US politicians, including Obama,
who are slavishly obedient to Israel:

The alleged bomber’s brother told AFP that he had been radicalised by the
devastating offensive which Israel launched on Gaza in December 2008.
“The Israeli military operation in Gaza affected Humam and he wanted to join
doctors of the Jordan Medical Association as a volunteer and go to Gaza,” said his

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By Hammond Eggs, January 7, 2010 at 3:28 pm Link to this comment

A military tribunal would provide many of the same protections about which critics complain

Are you kidding?  You’re kidding, right?  Or is Ruth Marcus just another Obama apologist?

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By kerryrose, January 7, 2010 at 2:55 am Link to this comment

I don’t know why Ruth Marcus continually blogs here.  Everything she writes deserves to be a grotesque right wing op ed in the Washington Post.

Every one of her blogs makes me sick with her shallow thought.

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DieDaily's avatar

By DieDaily, January 6, 2010 at 9:13 pm Link to this comment

The author is either a stooge or gullible beyond hope. Her statements are absurd and unfounded. She advocates torture, confinement without an attorney, and endorses Obama’s indefinite detainment and suspension of habeas corpus while pretending not to. She states that it’s OK to do this because it was OK to use the Khalid Sheik Mohammed “testimony” obtained prior to his 183 water-boardings. What a creepy Nazi Ruth is. Welcome to the New Left, where torture is good and patsies aren’t humans. To the new liberal, you are no longer human if you are accused of something.

Even Obama is having a pang of conscience about this bungled false-flag op?

On MSNBC? Wow! We must be winning! The truth may just bubble to the surface of the tarry intellect of our collective unconsciousness. More evidence that the shadow government is about to cash Obama in.

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By ghostrider67, January 6, 2010 at 5:08 pm Link to this comment

Same old same old.
If anyone believes that Abdulmuttalab was a free willed terrorist,then i REALLY feel sorry for the bigger part of the American people.The mishaps in the whole scenario is so bloody obvious that it insults one’s intelligence, i mean at this age and time (WAR against TERROR) era,how can anyone board a plane in any shitport airpot let alone an European one without a passport? believe me,i travel a lot in between African countries where security is so lax that you could smuggle an elephant in your carry all with no problem,but your documents are scrutinized so thoroughly like a full prostate exam and even one single missing fact like an airport tax receipt can strand you.
The fact is The Warmongers have been itching to open another front in Yemen but were still pondering if its worth it,but the sudden emergence of the Houthi(shia) fighters that are proven to be tougher than believed(anyone remember Hezbollah),kicking the collective asses of the yemeni and saudi soldiers are suddenly posing serious threat to the puppet regimes of both countries. So any excuse to validate the US intervention was needed.
After all,If they become(God forbid) as formidable as Hezbollah are in Lebanon right now,God knows it will spread to Egypt and the rest of the region which in turn makes Iran untouchable.

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By liecatcher, January 6, 2010 at 3:29 pm Link to this comment

A Case for Presidential Power
Posted on Jan 6, 2010
By Ruth Marcus

Nothing new here.
“The Shock Doctrine: The Rise of Disaster Capitalism
” by Naomi Klein
covers this type of mainstream media brainwashing to
keep the uneducated
& undereducated in a chronic state of fear which
allows the fascists pulling
the strings to usurp power, negate the constitution
& enslave the masses.

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By ofersince72, January 6, 2010 at 3:23 pm Link to this comment

Hey , once again Montanawildman, you beat me again,
you said it all, not need me repeatin

Still don’t know what you meant by giving OHnoBAMA
any respect though on your other post.

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By FRTothus, January 6, 2010 at 1:52 pm Link to this comment

Justice has, like everything else, become a commodity: one gets about as much as one’s wealth or power can afford.  The message is clear: prosecute those who are poor and weak, whose retail “crimes” involve things that “might have” happened, and ignore those with power who have actually committed wholesale crimes.

“We live in a nation hated abroad and frightened at home. A place in which we can reasonably refer to the American Republic in the past tense. A country that has moved into a post-constitutional era, no longer a nation of laws but an autotocracy run by law breakers, law evaders and law ignorers. A nation governed by a culture of impunity, a term from Latin America where they know it well - a culture in which corruption is no longer a form of deviance but the norm. We all live in a Mafia neighborhood now.”
(Sam Smith’s Progressive Review)

“Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
(Justice Louis Brandeis)

“Only corporate America enjoys representation by the Congresses and presidents that it pays for in an arrangement where no one is entirely accountable because those who have bought the government also own the media.”
(Gore Vidal, Perpetual War for Perpetual Peace)

“Today, as in the Gilded Age, we live in a world where a morality of personal responsibility rubs shoulders with a culture of greed and of flagrant social irresponsibility. Now as then, business has shed its collective responsibility for employees - just as government has for its citizens.”
(Charles Derber, Corporation Nation)

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By gerard, January 6, 2010 at 11:34 am Link to this comment

VERY IMPORTANT:  “Note the perspective
here; don’t pay attention to WHY people are fighting back against America, just deal with the consequences. Keep overthrowing foreign governments, stealing their resources, help Israel’s genocide against the Palestinians… and treat their
desperate, feeble attempts to fight back as “crimes”. We’re like a junkie whose
vein has collapsed and all we can think of is,” can I find another vein?” Not, “geez
a vein collapsed? I must be doing something wrong!”
  Couldn’t have said it as well myself. Congratulations, rudyspeaks!
  Next question?  Why are we addicted to such counter-productive behavior?

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By rudyspeaks1, January 6, 2010 at 9:27 am Link to this comment
(Unregistered commenter)

the flimsiness of the existing legal regime to hold and interrogate the
Abdulmutallabs of the world… Who IS this woman and why is she on (in fact, a
regular on) Truthdig? This “flimsy” legal system has held muslim scholar Saed
Hashmi in captivity for three years in conditions more grim and severe than any
mafioso has ever endured. And that’s not enough for her? Note the perspective
here; don’t pay attention to WHY people are fighting back against America, just
deal with the consequences. Keep overthrowing foreign governments, stealing
their resources, help Israel’s genocide against the Palestinians… and treat their
desperate, feeble attempts to fight back as “crimes”. We’re like a junkie whose
vein has collapsed and all we can think of is,” can I find another vein?” Not, “geez
a vein collapsed? I must be doing something wrong!” Yeah, like wasting one more
second reading Ruth Marcus.

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Samson's avatar

By Samson, January 6, 2010 at 7:59 am Link to this comment

Its obvious by now that in the long run, King George and the Torries won the American Revolution.  Everything that’s proclaimed today as ‘American’ is what the Torries and ol’ George believed in 1776.  Thomas Jefferson and his friends clearly lost over the long haul.

Or maybe as Franklin remarked, we had a decent enough government for the few years we were able to keep it.

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Samson's avatar

By Samson, January 6, 2010 at 7:54 am Link to this comment

More Democrat propaganda from the Washington Post.

Do you see how the logic progresses, no matter the supposed change in administration?  Now we are told that there’s no problem with a case against the crotch bomber because there’s no problem with a case against the guy who’s been waterboarded 180 times.

That’s what they used to call a ‘slippery slope’, back in the old days when America used to care about rights and liberty and such.

What’s so important about getting information right now?  Ms. Marcus doesn’t explain. Instead she just proclaims that this must happen.  But, its very unlikely that this guy knows of any other terrorist attacks that are being planned.  They’d keep that information away from anyone this dumb.

But, instead we get more WaPo propaganda that says we must turn America into a police state to protect us all.

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G.Anderson's avatar

By G.Anderson, January 6, 2010 at 7:53 am Link to this comment

There’s a fine line between love and hate…

There’s a fine line between love and hate….

The 2010 Elections can’t come soon enough for me..

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By bozhidar balkas, vancouver, January 6, 2010 at 7:52 am Link to this comment
(Unregistered commenter)

Doesn’t our dear RM know that callingnames people or even what they say dosn’t elucidate what these people r doing or what their endgoal is.

One cld get stung by a wasp and one get’s angry and calls it “enemy combattant”.
Is she tacitly positing the notion that nato soldier in afgh’n is a friendly combattant and benevolent occupier?

I am sorry Ruth if i sound rude. But even US soldiers r just as much innocent as their combattants r.
US soldiers enlisted, i assume, in good faith: to defend their country from an attck and if under attack to engage the attacking country in a war.

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By montanawildhack, January 6, 2010 at 3:44 am Link to this comment

Hey Ms. Marcus hows come you don’t write a column about the proper legal measures to take against the cats that got us in this shit-storm… I’m talken’ bout your buddies Wolfawitch, Pearle, Feith, Frum, and Kristol to name but a few..

The people fighting us are Freedom Fighters not Terrorists…  They only made one mistake as far as I’m concerned…. They should have spent a few days in July and penned a quick Declaration of Independence…  Ya know, like our Founding Terrorists did… Then everything they did from that point on would be nice and legal…

And I can think of another Christmas Day Terrorist Act that was successful by the way…. Remember George (bin Laden) Washington crossing the Delaware???  They caught the Hession (sp) troops with their pants down because it was Christmas Day… Imagine how happy you’d be on Christmas morning to get a musket ball through the brain or a bayonet through the gut….  The end….

god bless you and god bless america….

ps… And to all you losers out there that think the Revolution was necessary I give you exhibit One-Canada….
They never went to war and now they’ve got Univeral Health care and a kick-ass National Anthem…. And ain’t no one trying to blow them up….

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