Commentary Magazine


Topic: law enforcement approach

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.

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.

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The Least Transparent Administration

Among the Obama administration’s wildly inaccurate self-descriptors is that it is the most “transparent administration in history.” That is — as we have repeatedly seen in the national security  and civil rights realms– nonsense. We see it again in the Times Square jihadist attack. Even the Washington Post editors have had enough of the administration’s aversion to disclosure:

But much is still not known about the administration’s handling of this case. For example, how long was Mr. Shahzad questioned before he was read his Miranda rights? And what triggered the Justice Department’s decision to suspend the “ticking time bomb” exception in case law that gives law enforcement officers an opportunity to gather information before advising a suspect of his right to remain silent? The administration has also not publicly addressed whether it consulted with intelligence officials on the best way to deal with Mr. Shahzad. Nor has it said whether its High Value Interrogation Group (HIG) — a group of law enforcement and intelligence experts specially trained for terrorism cases — was up and running and deployed in the Shahzad case.

The administration rightly came under fire for its handling of the case of Umar Farouk Abdulmutallab, a Nigerian citizen who tried to ignite explosives on a Detroit-bound plane on Christmas Day. In that case, the Justice Department failed to adequately consult its intelligence partners and rashly embraced a law enforcement approach without fully considering other options, including holding Mr. Abdulmutallab as an enemy combatant.

As in the Fort Hood massacre, the administration resists scrutiny here. It’s odd indeed that the Obama brain trust is willing — anxious even — to give KSM a public forum to spout his jihadist propaganda (we’re not afraid, pronounces Holder) but can’t discuss its own approach to jihadist terrorists in open hearings and press conferences. Is this the usual thin-skinned irritation with critics at work? Or does the administration at some level understand how out of sync with the public is its approach to terrorists?

House and Senate Democrats have shirked their responsibility to conduct meaningful oversight. We may have to wait until one or both houses flip to Republican control before we have chairmen willing to demand documents and grill Obama officials. We hope that the lessons learned from such investigations do not come too late to prevent yet another attack on the homeland.

Among the Obama administration’s wildly inaccurate self-descriptors is that it is the most “transparent administration in history.” That is — as we have repeatedly seen in the national security  and civil rights realms– nonsense. We see it again in the Times Square jihadist attack. Even the Washington Post editors have had enough of the administration’s aversion to disclosure:

But much is still not known about the administration’s handling of this case. For example, how long was Mr. Shahzad questioned before he was read his Miranda rights? And what triggered the Justice Department’s decision to suspend the “ticking time bomb” exception in case law that gives law enforcement officers an opportunity to gather information before advising a suspect of his right to remain silent? The administration has also not publicly addressed whether it consulted with intelligence officials on the best way to deal with Mr. Shahzad. Nor has it said whether its High Value Interrogation Group (HIG) — a group of law enforcement and intelligence experts specially trained for terrorism cases — was up and running and deployed in the Shahzad case.

The administration rightly came under fire for its handling of the case of Umar Farouk Abdulmutallab, a Nigerian citizen who tried to ignite explosives on a Detroit-bound plane on Christmas Day. In that case, the Justice Department failed to adequately consult its intelligence partners and rashly embraced a law enforcement approach without fully considering other options, including holding Mr. Abdulmutallab as an enemy combatant.

As in the Fort Hood massacre, the administration resists scrutiny here. It’s odd indeed that the Obama brain trust is willing — anxious even — to give KSM a public forum to spout his jihadist propaganda (we’re not afraid, pronounces Holder) but can’t discuss its own approach to jihadist terrorists in open hearings and press conferences. Is this the usual thin-skinned irritation with critics at work? Or does the administration at some level understand how out of sync with the public is its approach to terrorists?

House and Senate Democrats have shirked their responsibility to conduct meaningful oversight. We may have to wait until one or both houses flip to Republican control before we have chairmen willing to demand documents and grill Obama officials. We hope that the lessons learned from such investigations do not come too late to prevent yet another attack on the homeland.

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Hunting Heads

If Christmas Day airline bomber Umar Abdulmutallab had been identified by Special Forces in Yemen, rather than being detained in Detroit, he could well have been summarily killed in a drone strike instead of being read his rights. Such are the features of the Obama approach to the war on terror.

The AP has a story today outlining something that has been apparent for months: that President Obama is relying to a much greater degree than Bush did on standoff drone attacks against terrorists in Asia and the Middle East. The AP piece presents this as a fresh, successful strategy, one applauded by Pakistani officials and made possible by the drawdown in Iraq, which is freeing up drones and intelligence assets for use elsewhere. In the AP analysis, moreover, Obama’s choice to leave behind terms such as “radical Islam” and “Islamo-fascism” is amplifying his effectiveness by abetting a policy of reaching out to Islamic allies.

This is one way of looking at it – but it’s a narrative that omits important context. Obama’s strategy isn’t a matter of increasing our reliance on drone strikes while at the same time maintaining the politically comprehensive Bush approach to combating Islamist terrorism. It involves instead shifting our approach away from Bush’s indispensable political element – fostering liberalization, consensual government, and civil security in the Islamic world – toward an emphasis on simply killing individual terrorists. But Obama has also adopted this strategy in the context of a kid-gloves policy toward foreign terrorists who happen to fall, still alive, into the clutches of the U.S. justice system.

We might certainly call the latter factor an ethical paradox, or perhaps simply a double standard. In neither guise does the Obama policy come off as principled from any universalist ethical sense. A policy of what amounts to assassination overseas, coupled with legalist zealotry for the rights of the accused at home, can’t help looking like a cynical combination tinged with domestic-constituency tending and rank hypocrisy.

Terrible things are done in war, of course; and the terrorists being targeted in standoff attacks are known to be ringleaders, most with ghastly bombings on their rap sheets. But the “big picture” justification for this tactic, the mitigating strategic objective of promoting a “better peace” in the Islamic societies, is something Obama has been at pains to shed. This policy trend must at some point call into question the purpose of our campaign of force. I’ve written here and here about Obama’s turn away from the core Bush tenet of fighting terrorism by means of promoting civil outcomes abroad. Whether by excising the promotion of freedom and democracy from our national objectives, or by envisioning for Afghanistan a “less-capable national government and a greater tolerance of insurgent violence” than in Iraq, the Obama administration has backed off significantly from Bush’s policy of shaping conditions for the better overseas.

It bears repeating that Bush chose to go all-in on that policy – with the surge decision in late 2006 – because the lighter-footprint approach favored by Donald Rumsfeld wasn’t working. There is a real risk with the light-footprint strategy that using head-hunting tactics against terrorists will begin to look more and more like taking the worst kind of law-enforcement approach: one that dispenses with the inconvenient constraints of law. Indeed, a diligent UN official has already made this point about our drone strike campaign.

Minimizing our own “skin in the game” may seem like a prudent policy in the short run. But it will not be to our advantage over the long run if Afghans, Pakistanis, or Yemenis come to see us as having arrived not to foster a better future for them, but rather to use their territory as a sniper perch.

If Christmas Day airline bomber Umar Abdulmutallab had been identified by Special Forces in Yemen, rather than being detained in Detroit, he could well have been summarily killed in a drone strike instead of being read his rights. Such are the features of the Obama approach to the war on terror.

The AP has a story today outlining something that has been apparent for months: that President Obama is relying to a much greater degree than Bush did on standoff drone attacks against terrorists in Asia and the Middle East. The AP piece presents this as a fresh, successful strategy, one applauded by Pakistani officials and made possible by the drawdown in Iraq, which is freeing up drones and intelligence assets for use elsewhere. In the AP analysis, moreover, Obama’s choice to leave behind terms such as “radical Islam” and “Islamo-fascism” is amplifying his effectiveness by abetting a policy of reaching out to Islamic allies.

This is one way of looking at it – but it’s a narrative that omits important context. Obama’s strategy isn’t a matter of increasing our reliance on drone strikes while at the same time maintaining the politically comprehensive Bush approach to combating Islamist terrorism. It involves instead shifting our approach away from Bush’s indispensable political element – fostering liberalization, consensual government, and civil security in the Islamic world – toward an emphasis on simply killing individual terrorists. But Obama has also adopted this strategy in the context of a kid-gloves policy toward foreign terrorists who happen to fall, still alive, into the clutches of the U.S. justice system.

We might certainly call the latter factor an ethical paradox, or perhaps simply a double standard. In neither guise does the Obama policy come off as principled from any universalist ethical sense. A policy of what amounts to assassination overseas, coupled with legalist zealotry for the rights of the accused at home, can’t help looking like a cynical combination tinged with domestic-constituency tending and rank hypocrisy.

Terrible things are done in war, of course; and the terrorists being targeted in standoff attacks are known to be ringleaders, most with ghastly bombings on their rap sheets. But the “big picture” justification for this tactic, the mitigating strategic objective of promoting a “better peace” in the Islamic societies, is something Obama has been at pains to shed. This policy trend must at some point call into question the purpose of our campaign of force. I’ve written here and here about Obama’s turn away from the core Bush tenet of fighting terrorism by means of promoting civil outcomes abroad. Whether by excising the promotion of freedom and democracy from our national objectives, or by envisioning for Afghanistan a “less-capable national government and a greater tolerance of insurgent violence” than in Iraq, the Obama administration has backed off significantly from Bush’s policy of shaping conditions for the better overseas.

It bears repeating that Bush chose to go all-in on that policy – with the surge decision in late 2006 – because the lighter-footprint approach favored by Donald Rumsfeld wasn’t working. There is a real risk with the light-footprint strategy that using head-hunting tactics against terrorists will begin to look more and more like taking the worst kind of law-enforcement approach: one that dispenses with the inconvenient constraints of law. Indeed, a diligent UN official has already made this point about our drone strike campaign.

Minimizing our own “skin in the game” may seem like a prudent policy in the short run. But it will not be to our advantage over the long run if Afghans, Pakistanis, or Yemenis come to see us as having arrived not to foster a better future for them, but rather to use their territory as a sniper perch.

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9/11 Commissioners to Obama: What Were You Thinking?!

Eli Lake reports:

Former Gov. Thomas H. Kean, New Jersey Republican, and former Rep. Lee Hamilton, Indiana Democrat, said U.S. intelligence agencies should have been consulted before the bombing suspect, Nigerian national Umar Farouk Abdulmutallab, was granted constitutional protections under U.S. law, known as Miranda rights, and initially stopped talking to investigators.

The criticism from two of Washington’s respected former government officials comes as a bipartisan panel on Tuesday gave the Obama administration a failing grade for its efforts to date to prepare for and respond to biological-weapon terrorist attacks.

Echoing  conservative critics and members of Congress, Kean (“I was shocked, and I was upset”) and Hamilton (“There did not seem to be a policy of the government as to how to handle these people”) can’t fathom why the Obami did not properly interrogate the bomber (with the requisite intelligence data in hand) to elicit potentially valuable information. Kean observes that “here is a man who may have trained with other people who are trying to get into this country in one way or another, who may have worked with some of the top leadership in Yemen and al Qaeda generally — and we don’t know the details of that — who may know about other plots that are pending, and we haven’t found out about them.”

The White House is nevertheless wedded to its law enforcement approach and after-the-fact clean-up preparations rather than the ferreting out of information potentially within our grasp. As Lake notes, on the same day the 9/11 commissions raised their complaints, the “Commission on the Prevention of Weapons of Mass Destruction, Proliferation and Terrorism said the Obama administration is not addressing urgent threats, including bioterrorism.” The Obami assured us they are coming up with a ”new plan for a better and quicker response to bioterrorism threats and attacks.” How about simply questioning a terrorist we’ve apprehended? (That’d be new.) The best “response” is not more emergency vehicles to tend to the sick and dying, but a no-nonsense approach that seeks to gather information to prevent the attacks from occurring. That is precisely the tactic of the Bush team, which was not on some bizarre lark when it determined that it was going to employ enhanced interrogation techniques on those who were seeking to kill Americans (in large numbers). Putting aside the techniques to be employed, the Obami, to the shock of the 9/11 commissioners and most of the country, have essentially thrown in the towel on eliciting information from any terrorist we capture on U.S. soil. We certainly do need a “new plan.”

Obama has insisted that in tossing aside Bush-era anti-terrorism policies, he was defending our “values” or that we somehow “lost our way” in the aftermath of 9/11. It is increasingly clear, as with so much other blather than comes from the White House, that it is this administration that’s lost. There is a bipartisan consensus emerging that the Obami have behaved irresponsibly and that there is no moral or constitutional imperative to Mirandize terrorists and allow them to clam up. It’s become obvious to all but the reality-insulated Left that the moral preening is no more than a smoke screen for an ill-conceived and poorly executed set of policies.

Given the lack of support for the current approach and the urging of figures like Kean and Hamilton to take a second look at the Obami’s assumption, it seems there is plenty for responsible lawmakers to do. Scott Brown seemed to have a handle on this when he said that “our Constitution and laws exist to protect this nation — they do not grant rights and privileges to enemies in wartime. In dealing with terrorists, our tax dollars should pay for weapons to stop them, not lawyers to defend them.” Perhaps he can reach across the aisle and induce some of his new colleagues, just as we are seeing on health care, to set aside the foolishness of Obama’s first year in favor of some responsible governance.

Eli Lake reports:

Former Gov. Thomas H. Kean, New Jersey Republican, and former Rep. Lee Hamilton, Indiana Democrat, said U.S. intelligence agencies should have been consulted before the bombing suspect, Nigerian national Umar Farouk Abdulmutallab, was granted constitutional protections under U.S. law, known as Miranda rights, and initially stopped talking to investigators.

The criticism from two of Washington’s respected former government officials comes as a bipartisan panel on Tuesday gave the Obama administration a failing grade for its efforts to date to prepare for and respond to biological-weapon terrorist attacks.

Echoing  conservative critics and members of Congress, Kean (“I was shocked, and I was upset”) and Hamilton (“There did not seem to be a policy of the government as to how to handle these people”) can’t fathom why the Obami did not properly interrogate the bomber (with the requisite intelligence data in hand) to elicit potentially valuable information. Kean observes that “here is a man who may have trained with other people who are trying to get into this country in one way or another, who may have worked with some of the top leadership in Yemen and al Qaeda generally — and we don’t know the details of that — who may know about other plots that are pending, and we haven’t found out about them.”

The White House is nevertheless wedded to its law enforcement approach and after-the-fact clean-up preparations rather than the ferreting out of information potentially within our grasp. As Lake notes, on the same day the 9/11 commissions raised their complaints, the “Commission on the Prevention of Weapons of Mass Destruction, Proliferation and Terrorism said the Obama administration is not addressing urgent threats, including bioterrorism.” The Obami assured us they are coming up with a ”new plan for a better and quicker response to bioterrorism threats and attacks.” How about simply questioning a terrorist we’ve apprehended? (That’d be new.) The best “response” is not more emergency vehicles to tend to the sick and dying, but a no-nonsense approach that seeks to gather information to prevent the attacks from occurring. That is precisely the tactic of the Bush team, which was not on some bizarre lark when it determined that it was going to employ enhanced interrogation techniques on those who were seeking to kill Americans (in large numbers). Putting aside the techniques to be employed, the Obami, to the shock of the 9/11 commissioners and most of the country, have essentially thrown in the towel on eliciting information from any terrorist we capture on U.S. soil. We certainly do need a “new plan.”

Obama has insisted that in tossing aside Bush-era anti-terrorism policies, he was defending our “values” or that we somehow “lost our way” in the aftermath of 9/11. It is increasingly clear, as with so much other blather than comes from the White House, that it is this administration that’s lost. There is a bipartisan consensus emerging that the Obami have behaved irresponsibly and that there is no moral or constitutional imperative to Mirandize terrorists and allow them to clam up. It’s become obvious to all but the reality-insulated Left that the moral preening is no more than a smoke screen for an ill-conceived and poorly executed set of policies.

Given the lack of support for the current approach and the urging of figures like Kean and Hamilton to take a second look at the Obami’s assumption, it seems there is plenty for responsible lawmakers to do. Scott Brown seemed to have a handle on this when he said that “our Constitution and laws exist to protect this nation — they do not grant rights and privileges to enemies in wartime. In dealing with terrorists, our tax dollars should pay for weapons to stop them, not lawyers to defend them.” Perhaps he can reach across the aisle and induce some of his new colleagues, just as we are seeing on health care, to set aside the foolishness of Obama’s first year in favor of some responsible governance.

Read Less