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HOLMES: Response to airliner attack is legal theater of the absurd

- - Thursday, January 7, 2010

ANALYSIS/OPINION:

Rarely is the absurdity of a policy completely unmasked in a single statement. But it happened last Sunday when John O. Brennan, President Obama's homeland security and counterterrorism adviser, announced that Nigerian terrorist Umar Farouk Abdulmutallab had been "talking to people who detained him," but now "doesn't have to" because he has a public defender and will be tried in a civilian court.

Say what? Imagine if Mohammed Atta, who piloted one of the 9/11 planes into the World Trade Center, had somehow survived. Now suppose the authorities treated him as though he had merely broken into a liquor store … no interrogation, just charged him with a crime, given him a public defender and taken him to the county courthouse. Odds are the case would have ended with a plea bargain, Atta giving up information in return for a light jail sentence.

The public would have been outraged. They would have demanded that Atta be treated as what he was — an enemy combatant. Authorities would have been expected to do everything possible to learn what he knew, so as to prevent another attack.

So what's changed? Despite what the president has said, this administration acts as though terrorist attacks on U.S. soil are criminal matters, not acts of war. That policy means that a terrorist planning to attack Americans is best off trying to kill as many people as possible on U.S. soil. That way he can not only get a civilian trial and public defenders paid for by American taxpayers. He can keep his secrets safe. And he won't have to face U.S. soldiers trying to kill him in firefights in Afghanistan or Iraq.

Talk about perverse incentives. The law is supposed to protect Americans, not make them easy targets for terrorists.

You have to wonder what a terrorist attacking inside the U.S. would have to do to warrant interrogation. Would he have to kill hundreds or thousands of Americans? If so, what legal difference does it make for where he's tried? The jurisdiction question doesn't hinge on whether people die, but on the nature of the action and the type of person perpetrating it. A terrorist who succeeds in killing hundreds of Americans is just as much an enemy combatant as one who tries but fails.

You also have to wonder why the administration went to all the trouble of establishing a "high value interrogation group," or HIG, in the national security staff. Is an al Qaeda operation trying to kill 300 Americans not "high value" enough? What about all those other terrorists-in-training who reportedly want to follow in Abdulmutallab's footsteps? Don't the lives they threaten make the Nigerian terrorist a valuable enough person to interrogate?

Yes, President George W. Bush put British-born terrorist Richard Reid in a civilian court. For whatever reason, that set an unfortunate political precedent; but it did not establish any binding precedents in law. There is no legal requirement to try foreign nationals like Reid or Abdulmutallab in a U.S. civilian court. The most definitive Supreme Court case on the matter, Ex parte Quirin, ruled that enemy combatants (in that case German saboteurs) caught in the U.S. can be tried by a military tribunal.

Mr. Obama is fond of distinguishing himself from Mr. Bush. So he is perfectly free to set himself apart from Mr. Bush by being "really" tough on terrorism.

But he didn't. Despite all his protestations to the contrary, it appears that he does not believe people like Abdulmutallab are engaging in acts of war against the United States. The president's positions on detainees and Guantanamo Bay have so tied him up in legal knots that he can't see something that is otherwise so obvious — namely, that there is a huge legal difference between a U.S. citizen trying to commit murder for private reasons and a foreign-born (i.e. non-U.S. citizen) terrorist doing so for political reasons on behalf of an organization engaged in war against the United States.

Abdulmutallab should have been handed over to military intelligence experts for interrogation and detention. After that he should have been sent to a military commission for trial. In addition to doing justice properly, and adhering to the Constitution, this would have sent would-be terrorists the message that they won't be treated with kid gloves if they are caught inside the U.S. trying to kill Americans.

Unfortunately, other terrorists must be shaking their heads in wonder. They can scarcely believe their good fortune that attacking civilians in the U.S. rather than soldiers on a foreign battlefield can get them a better deal if they are caught.

Nothing in the Constitution or the law requires us to expose Americans to this kind of legal nonsense. The law is intended to protect Americans. We do our constitutional rights no favor by pretending that enemy combatants have the same rights as ordinary criminals.

Kim R. Holmes, a former assistant secretary of state, is a vice president at the Heritage Foundation (Heritage.org) and author of "Liberty's Best Hope: American Leadership for the 21st Century."