Commentary Magazine


Topic: defense attorney

What the Criminal-Justice Model Gets Us

Buried deep in the Washington Post account of the Obama administration’s  intelligence failures regarding the Christmas Day terror attack is this nugget:

Abdulmutallab remains in a Detroit area prison and, after initial debriefings by the FBI, has restricted his cooperation since securing a defense attorney, according to federal officials.

And why has he clammed up, sitting uncooperatively while the Obami scramble around trying to put the pieces together surrounding the not-at-all isolated extremist? Because Obama has declared we will treat these incidents as criminal-justice matters. He is arrested, Mirandized, lawyered up, and now mute. This is, of course, madness. Rather than subject Abdulmutallab to serious and, if need be, enhanced interrogation that might uncover the extent of the plot, other plotters, the identities of those assisting him, the extent of the Yemen operation that supplied him with the explosive, and other life-saving information, we have defaulted to the pre-9/11 criminal-justice mode. We are reduced to “hoping” he will co-operate. This is what our anti-terror policies have brought us. And when the next attack or the attack after that occurs and we wonder why we didn’t have better intelligence, someone might recall that intelligence is gathered by more than hope.

Buried deep in the Washington Post account of the Obama administration’s  intelligence failures regarding the Christmas Day terror attack is this nugget:

Abdulmutallab remains in a Detroit area prison and, after initial debriefings by the FBI, has restricted his cooperation since securing a defense attorney, according to federal officials.

And why has he clammed up, sitting uncooperatively while the Obami scramble around trying to put the pieces together surrounding the not-at-all isolated extremist? Because Obama has declared we will treat these incidents as criminal-justice matters. He is arrested, Mirandized, lawyered up, and now mute. This is, of course, madness. Rather than subject Abdulmutallab to serious and, if need be, enhanced interrogation that might uncover the extent of the plot, other plotters, the identities of those assisting him, the extent of the Yemen operation that supplied him with the explosive, and other life-saving information, we have defaulted to the pre-9/11 criminal-justice mode. We are reduced to “hoping” he will co-operate. This is what our anti-terror policies have brought us. And when the next attack or the attack after that occurs and we wonder why we didn’t have better intelligence, someone might recall that intelligence is gathered by more than hope.

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RE: No Risk, They Say?

I seldom find myself in disagreement with my colleague Jen Rubin. This is one of those rare occasions. I am not as alarmed as she is by the prospect of moving detainees from Guantanamo to a super-max prison in Illinois. She cites an ABC News report to highlight the dangers but, in fact, I think the ABC report makes the case for the transfer. It notes that ultra-dangerous al-Qaeda prisoners are already being held at the supermax prison in Florence, Colordao, including the so-called “20th hijacker” Zacharias Moussaoui, the shoe bomber Richard Reid, the first World Trade Center bomber Ramzi Yousef, and dirty bomber Jose Padilla. All of them “ have essentially disappeared inside the Colorado facility.” One of their defense attorneys is quoted complaining, “ It’s a bleak and brutal existence that’s defined by, essentially an 8 x 10 rectangle in which they live. There is no socialization whatsoever and the isolation itself is extremely damaging.”

While it may not make a defense attorney happy, that’s exactly the fate that I would like to see befall more terrorists. What about the risks that Jen mentions? It’s true that the “blind sheikh,” Omar Abdel Rahman, was able to communicate with his followers via his lawyer but that’s also possible in Guantanamo where the detainees now have access to attorneys. And it’s true that another al-Qaeda terrorist, Mamdouh Salim, who was being held temporarily at the Metropolitan Correctional Center in New York, was able to stab a guard with a sharpened comb in an unsuccessful attempt to escape. But that could happen at Gitmo too. In any case, security is tighter at supermax facilities. No one, as far as I know, has ever escaped from such a facility.

The most compelling argument against transferring the Gitmo detainees isn’t the worry that they will break out or convey forbidden information through their lawyers. Rather, it is that they may gain new legal rights by being brought to U.S. soil. I am not a lawyer, and stand ready to be corrected on this score, but my understanding is that they have already gained a lot of rights even while in Gitmo thanks to Supreme Court rulings. Only if they gain significant new legal protections that make their release more likely should a transfer to the mainland be banned. If they can be held securely in a supermax facility without having to be brought before a civilian court for trial, it makes sense to do so because, essentially, that would be a cosmetic change that would undo some of the public-relations damage wrought to America’s reputation by the Gitmo facility while not compromising our security.

I seldom find myself in disagreement with my colleague Jen Rubin. This is one of those rare occasions. I am not as alarmed as she is by the prospect of moving detainees from Guantanamo to a super-max prison in Illinois. She cites an ABC News report to highlight the dangers but, in fact, I think the ABC report makes the case for the transfer. It notes that ultra-dangerous al-Qaeda prisoners are already being held at the supermax prison in Florence, Colordao, including the so-called “20th hijacker” Zacharias Moussaoui, the shoe bomber Richard Reid, the first World Trade Center bomber Ramzi Yousef, and dirty bomber Jose Padilla. All of them “ have essentially disappeared inside the Colorado facility.” One of their defense attorneys is quoted complaining, “ It’s a bleak and brutal existence that’s defined by, essentially an 8 x 10 rectangle in which they live. There is no socialization whatsoever and the isolation itself is extremely damaging.”

While it may not make a defense attorney happy, that’s exactly the fate that I would like to see befall more terrorists. What about the risks that Jen mentions? It’s true that the “blind sheikh,” Omar Abdel Rahman, was able to communicate with his followers via his lawyer but that’s also possible in Guantanamo where the detainees now have access to attorneys. And it’s true that another al-Qaeda terrorist, Mamdouh Salim, who was being held temporarily at the Metropolitan Correctional Center in New York, was able to stab a guard with a sharpened comb in an unsuccessful attempt to escape. But that could happen at Gitmo too. In any case, security is tighter at supermax facilities. No one, as far as I know, has ever escaped from such a facility.

The most compelling argument against transferring the Gitmo detainees isn’t the worry that they will break out or convey forbidden information through their lawyers. Rather, it is that they may gain new legal rights by being brought to U.S. soil. I am not a lawyer, and stand ready to be corrected on this score, but my understanding is that they have already gained a lot of rights even while in Gitmo thanks to Supreme Court rulings. Only if they gain significant new legal protections that make their release more likely should a transfer to the mainland be banned. If they can be held securely in a supermax facility without having to be brought before a civilian court for trial, it makes sense to do so because, essentially, that would be a cosmetic change that would undo some of the public-relations damage wrought to America’s reputation by the Gitmo facility while not compromising our security.

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No Risk, They Say?

ABC News has an informative report, making clear what conservative critics of Obama’s policy of moving the terrorists to U.S. prisons have long argued: that once here, they pose to Americans a risk that did not exist when they were housed at Guantanamo. The report explains that while the Obama team is assuring us that we “have nothing to fear” from the detainees, the result, in at least two situations, is quite different:

They are supposed to be cut off from the outside world, but the man called the blind Sheikh, Omar Abdel Rahman, convicted of inspiring attacks on the U.S., used his lawyer to pass messages back to his violent followers in Egypt. But even a warning from the FBI to officials at this New York prison wasn’t enough to stop one al Qaeda terrorist, Mamdouh Salim, from making a bloody escape attempt in the year 2000. His victim was prison guard Louis Pepe who Salim first blinded with hot sauce stored up in these empty honey bottles he somehow hid in his cell. Then Salim stabbed Pepe in the eye with a sharpened comb that went deep into Pepe’s brain, causing permanent damage.

It is no wonder that Republicans are seizing on the issue and intend to make it a top 2010 campaign issue. As Sen. John Cornyn said bluntly, the president and Congress’s job is to “prevent future attacks and not just punish people after there’s dead bodies lying around.” And again, one comes back to why all of this risk and expense. It is not as if we’re going to be scoring any brownie points with anyone. We can expect to hear more of this:

“It’s a bleak and brutal existence that’s defined by, essentially an 8 x 10 rectangle in which they live,” said defense attorney Joshua Dratel, who defended al-Qaeda terrorist Wadih El-Hage, now serving life in Florence. “There is no socialization whatsoever and the isolation itself is extremely damaging.”

Maybe Congress will go along with this scheme, as it has so far with the KSM trial. But at some point those running for office may hear from voters who wonder why they are being endangered and for what possible benefit.

ABC News has an informative report, making clear what conservative critics of Obama’s policy of moving the terrorists to U.S. prisons have long argued: that once here, they pose to Americans a risk that did not exist when they were housed at Guantanamo. The report explains that while the Obama team is assuring us that we “have nothing to fear” from the detainees, the result, in at least two situations, is quite different:

They are supposed to be cut off from the outside world, but the man called the blind Sheikh, Omar Abdel Rahman, convicted of inspiring attacks on the U.S., used his lawyer to pass messages back to his violent followers in Egypt. But even a warning from the FBI to officials at this New York prison wasn’t enough to stop one al Qaeda terrorist, Mamdouh Salim, from making a bloody escape attempt in the year 2000. His victim was prison guard Louis Pepe who Salim first blinded with hot sauce stored up in these empty honey bottles he somehow hid in his cell. Then Salim stabbed Pepe in the eye with a sharpened comb that went deep into Pepe’s brain, causing permanent damage.

It is no wonder that Republicans are seizing on the issue and intend to make it a top 2010 campaign issue. As Sen. John Cornyn said bluntly, the president and Congress’s job is to “prevent future attacks and not just punish people after there’s dead bodies lying around.” And again, one comes back to why all of this risk and expense. It is not as if we’re going to be scoring any brownie points with anyone. We can expect to hear more of this:

“It’s a bleak and brutal existence that’s defined by, essentially an 8 x 10 rectangle in which they live,” said defense attorney Joshua Dratel, who defended al-Qaeda terrorist Wadih El-Hage, now serving life in Florence. “There is no socialization whatsoever and the isolation itself is extremely damaging.”

Maybe Congress will go along with this scheme, as it has so far with the KSM trial. But at some point those running for office may hear from voters who wonder why they are being endangered and for what possible benefit.

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