- The Washington Times - Thursday, February 4, 2010

The U.S. attorney general should read up on the history of terrorism. He might learn something.

On Wednesday, Attorney General Eric H. Holder Jr. sent a five-page letter to Sen. Mitch McConnell, Kentucky Republican, detailing his rationale for treating purported Christmas Day bomber Umar Farouk Abdulmutallab as a criminal suspect rather than a terrorist detainee. The attorney general’s defense betrays significant misreading of how the United States has dealt with terrorism in recent decades.

Mr. Holder incredibly claims that policies treating terrorists as criminals “were not criticized when employed by previous Administrations [and] have been and remain extremely effective in protecting national security.”

Mr. Holder must be new to this issue. The problem of granting terrorists criminal status was at the center of the debate among counterterrorism scholars and practitioners in the 1990s. The policies of the Clinton era, which the Obama administration generally has resurrected, were critiqued in detail. Many warned that the domestic legal framework was insufficient to protect the United States from the emerging threat of globally networked Islamic terrorism. The events of Sept. 11, 2001, vindicated this argument. The Bush administration, armed with the Patriot Act and other important reforms, charted a new and more effective course that the current administration is in the process of dismantling.

Mr. Holder cited Zacarias Moussaoui as an example of a successful terrorism prosecution, ironically choosing the worst possible example to make his case. Moussaoui could be the poster child for the perils of Mr. Holder’s preferred policies.

In 2001, FBI agents suspected that Moussaoui was involved in a terrorist plot but could not arrest him because they could not prove he had done anything illegal. He finally was detained in August 2001 on immigration charges. Over the next few weeks, FBI agent Harry Samit sent 70 messages to superiors warning that Moussaoui was a dangerous terrorist who probably was involved in a plot to violently take over an aircraft. French intelligence officials confirmed that Moussaoui was linked to Muslim radical groups connected to Osama bin Laden. Agents repeatedly sought permission to search Moussaoui’s laptop computer; their requests were denied for a variety of technical reasons based on narrow interpretations of the law. Moussaoui, meanwhile, gave nothing of substance to interrogators.

Had Moussaoui been dealt with as a terrorist under the post-Sept. 11 framework, there would have been no question that his computer and other effects could have been examined for intelligence exploitation. Many think that had this taken place, the Sept. 11 attacks could have been disrupted. Mr. Holder’s example of a successful prosecution is also the best example of a case in which using the techniques he advocates failed to stop one of America’s greatest national tragedies.

Mr. Holder rushed Mr. Abdulmutallab into the criminal justice system. He writes that the U.S. Intelligence Community was “informed” that Mr. Abdulmutallab “would be charged criminally” before the fact, but the tone of the letter suggests that this was not open to debate. He reveals that the case was discussed in detail over subsequent days and during an interagency meeting with President Obama on Jan. 5 and that “no agency supported the use of law of war detention.”

By then, however, it had been 10 days since Mr. Abdulmutallab had been charged criminally and Mirandized. The other agencies were presented with a fait accompli. Had they been consulted earlier, they might have raised some objections, but apparently they were not. Mr. Holder declines to discuss whether Mr. Obama explicitly gave the green light to pursue this as a criminal case.

Mr. Abdulmutallab was not a domestic criminal. He was a Nigerian jihadist on a combat mission, deployed to a foreign battlefield. He should be treated as such. Giving law enforcement the lead in this case shows that the Obama administration has not learned from the deadly failures of the past, which cannot bode well for the future.