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But Isn’t There a Downside?

This is an instructive exchange on Fox News Sunday between Obama’s counterterrorism advisor, John Brennan, and Chris Wallace, on the subject of treating the Christmas Day bomber as a criminal defendant. Why do this?

BRENNAN: Well, we have an array of tools that we will use, and we want to make sure we maintain flexibility as far as how we deal with these individuals.

Now, let’s get the facts on the table. He was arrested on U.S. soil on a plane on — in the Detroit airplane. He was, in fact, talking to people who were detaining him.

There were people who were arrested during the previous administration — Richard Reid, the shoe bomber; Zacarias Moussaoui; Padilla; Iyman Faris; others — all were charged and tried in criminal court and sentenced, some cases to life imprisonment.

Just because somebody is going to be put into the criminal legal process does not mean that they’re — we don’t have other opportunities to get information from them.

WALLACE: But wait, wait. Let me ask you specifically. After Abdulmutallab got lawyered up, did he stop cooperating with authorities? Did he stop talking?

BRENNAN: I’m not going to address exactly what he did before or after he was — talked with his lawyer. We got information. We continue to have opportunities to do that.

As you talk with the lawyers and you talk with the individuals, as they recognize what they’re facing as far as the charges, conviction and possible sentence, there are opportunities to continue to talk about it.

FBI has some of the best interrogators and debriefers in the world, and so I’m confident that we’re going to continue to be able to work this system and see whether or not…

WALLACE: But once he gets his Miranda rights, he doesn’t have to speak at all.

BRENNAN: He doesn’t have to, but he knows that there are certain things that are on the table, and if he wants to, in fact, engage with us in a productive manner, there are ways that he can do that.

WALLACE: But why not treat him — you certainly had the right — have — had — still have the right to treat him as an enemy combatant. Why not do that?

If he has more actionable intelligence about future attacks, and you say there’s a real possibility of that, doesn’t the president have a responsibility to do everything legal he can to get that information?

BRENNAN: And the president has that responsibility, and the Department of Justice makes these determinations about what’s the best tool to use. And in this instance, we felt as though it was the best way to address Mr. Abdulmutallab’s case.

We’ll continue to look at each of the cases individually and proceed accordingly.

WALLACE: Just briefly, what’s the downside of treating him as an enemy combatant?

BRENNAN: There’s — there are no downsides or upsides in particular cases. What we’re trying to do is to make sure we apply the right tool in the right instance. In this case, we made a determination that he should be tried in U.S. criminal court.

If you missed the coherent explanation for why they are doing this — other than the fact that the lefty lawyers in the Justice Department told them to — you are not alone. The lack of thoughtful analysis as to the national-security implications of treating Abdulmutallab as a criminal rather than as an enemy combatant is somewhat stunning. Yes, the terrorist doesn’t have to talk to us, but we have “certain things on the table.” What — we are already plea bargaining with an al-Qaeda trained terrorist? It is startling, but it is also the natural result of what comes from putting the criminal-justice model into place. Oh, he’s arrested here? So Mirandize him, call the FBI, and yes, I suppose, permit him to take the 5th. And when Brennan says that there is “no downsides or upsides in particular cases,” one has to wonder what in the world he is talking about. Of course there is a downside to allowing Abdulmutallab to clam up. Just as there would have been a downside had we allowed KSM to clam up. We lose potentially life-saving information when we stand quietly by.

The difference is that the Bush administration wasn’t willing to play Russian roulette with Americans lives or hope that detainees would eventually change their minds and co-operate. The Obama administration is. And that should be deeply disturbing to all of us.



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