By Matt Apuzzo
Associated Press Writer
WASHINGTON (AP) — When Umar Farouk Abdulmutallab stopped talking to FBI agents after a failed attempt to blow up a plane on Christmas Day, it was not a failure of the U.S. criminal justice system or the president, regardless of what Republican critics say.
And when Abdulmutallab started talking again, thanks to some clever FBI field work, it wasn’t a validation of the system or the president, regardless of what the Obama administration says.
Nearly a half century after the Supreme Court ushered “You have the right to remain silent” into the American lexicon, a Nigerian man with a poorly designed bomb failed to take down an airplane but managed to ignite a dispute over whether that right extends to terrorism suspects.
The suddenly fierce debate over how to investigate suspected terrorists allows politicians to ignore history, mischaracterize the Constitution and add new uncertainty to a system that two administrations and countless intelligence officials from both parties have spent a decade trying to clarify.
It was a somewhat unexpected controversy. Abdulmutallab, after all, was not the first terrorism suspect captured in the U.S. since 2001.
The Bush administration sent many terrorists to prison, including U.S. sleeper cell members, a 9/11 co-conspirator and a man who tried to bring down an airplane with a bomb in his shoe.
All were read their rights. All got lawyers. All appeared in court.
Abdulmutallab wasn’t even the first terrorism case on President Barack Obama’s watch. Najibullah Zazi is under indictment in New York in an alleged al-Qaida bombing plot. Before he was charged, he and his lawyer spent days talking to the FBI.
That’s hardly unusual. A 1996 study by University of California, Irvine, criminologist Richard Leo found that 78 percent of defendants in cases he reviewed waived their right to remain silent and cooperated with investigators.
After the Christmas plot, however, the president’s critics say the administration should have treated Abdulmutalab as an enemy combatant. The right to a lawyer, Sen. Susan Collins, R-Maine, alleged last week, is reserved for American citizens, not foreign terrorists.
Collins is wrong. Immigrants, even those who entered the country illegally, are guaranteed lawyers in the U.S. when they commit a crime. But the danger of the argument is not in its legal weakness. It’s in its consequences.
It’s not exactly clear where Collins or other critics suggest Abdulmuttallab should have been sent.
To a military brig?
The Supreme Court has never weighed in on whether that’s lawful. Twice, President George W. Bush had the chance to test the question, but both times he dropped the issue and brought the cases in criminal court.
Had Obama sent Abdulmutallab to a military prison, there’s no guarantee he would have talked. But it’s certain there would have been a yearslong court challenge like the ones that stalled Bush’s anti-terrorism policies.
And it would have jeopardized the chances of ever bringing a criminal case. Which means that, years later, Obama, like Bush, would face the question of what to do with dangerous prisoners who can neither be prosecuted nor set free.
Critics of the Abdulmutallab case also raise questions they don’t even try to answer. Like what role the nation’s lead domestic counterterrorism agency, the FBI, will have if not to question terrorists? Or how the agents are supposed to sort out domestic terrorism cases, such as the Oklahoma City bombing, from foreign terrorism cases before they even conduct interviews?
The Obama administration quietly seethed while taking this recent criticism, knowing that the FBI had persuaded Abdulmutallab to start talking again, providing intelligence about his contacts with al-Qaida in Yemen. And when that fact surfaced Tuesday, a senior administration official said it vindicated the strategy they’d held all along.
The problem with that? If Abdulmutallab’s silence wasn’t proof the president was wrong, then his new cooperation is not proof the president was right.
Otherwise, this is a debate the country is going to have again and again.
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