Commentary Magazine


The Obama Team’s Criminal-Justice Model Fails

The Obama administration came into office convinced that the Bush approach to fighting terrorism was flawed and that instead we could apply criminal-justice rules in the war against Islamic terrorism. It proved unworkable. Now the administration is in a muddle — trying to alter a criminal-justice model that plainly doesn’t work but misunderstanding the legal landscape and the alternatives they have.

Bill Burck and Dana Perino explain that by suggesting that Miranda rules need to be altered, Eric Holder has in essence confessed to error:

The administration is making a number of admissions here: Mirandizing Umar Farouk Abdulmutallab, aka the underwear bomber, after only 50 minutes of questioning was a mistake; terrorists are enemies of America, not ordinary criminals; and the law-enforcement approach to combatting terrorism, which is designed to obtain evidence admissible at trial after a crime has already been committed, is not the most effective way to obtain intelligence to prevent future attacks.

This is an important step forward and a sign that, after the Manhattan subway plot, Fort Hood, Detroit, and now Times Square, the administration has become more adaptable to the realities of the war on terror. Yet the jury is out on whether the administration has a real plan or is merely improvising. Times Square bomber Faisal Shahzad remains in the criminal justice system and has not been designated as an enemy combatant, though he is still eligible for such designation.

Burck and Perino make a key point: we can designate even U.S. citizens to be enemy combatants. (“No less an authority than the U.S. Supreme Court, in Hamdi v. Rumsfeld (2004), resolved this question: The president has the authority to hold even U.S. citizens as enemy combatants if he believes they are working with the Taliban, al Qaeda or associated terrorist groups.”) This is probably true even if the U.S. citizen is on U.S. soil (“the federal Court of Appeals for the Fourth Circuit answered in the affirmative in Padilla v. Hanft).

So we have an administration that in all its condescension and criticism of the prior administration came up with a flawed alternative but that still lacks a full grasp of the alternatives. How could this be? Perhaps they are getting terrible advice from the Justice Department. One wonders what Elena Kagan thinks of all this. She, of course, is part of that brain trust. Maybe she should answer some tough questions at her confirmation hearing, starting with her views on what existing law says about terror suspects. Her colleagues might find it enlightening — provided she knows the law better than Holder.