A Case for Presidential Power

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)washpost.com.
   
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