A bipartisan revolt is brewing in the Senate over the Obama administration's handling of accused Detroit bomber Umar Farouk Abdulmutallab. A small but growing number of lawmakers is asking the president to undo what many regard as the disastrously wrong-headed decision to grant Abdulmutallab full American constitutional rights. Once he was told he had the right to remain silent, the accused terrorist stopped talking to U.S. investigators, possibly denying them valuable intelligence about the threat from al Qaeda.

 

The revolt started last week when top administration counterterrorism officials testified they had not been consulted about the decision to read Abdulmutallab the Miranda warning and give him a court-appointed lawyer. Several senators were aghast, including Homeland Security Committee Chairman Joseph Lieberman, the committee's ranking Republican Susan Collins, and the Judiciary Committee's ranking Republican Jeff Sessions. How could the Justice Department have done something so consequential without even consulting the administration's own experts on terrorism and intelligence?

 

The anger on Capitol Hill grew over the weekend, when the Associated Press reported that local FBI agents in Detroit were allowed to question Abdulmutallab for just 50 minutes before he went into surgery for several hours. During that time, Justice Department lawyers in Washington intervened and Abdulmutallab was later read his Miranda rights.

 

That was bad enough, but what really made lawmakers angry was when White House press secretary Robert Gibbs, appearing on "Fox News Sunday," insisted the 50-minute interrogation had been entirely sufficient for investigators to learn everything they needed to know about the al Qaeda plot to bomb Northwest Airlines Flight 253.

 

"You really don't think that if you'd interrogated him longer that you might have gotten more information?" asked Fox's Chris Wallace.

 

"Well, FBI interrogators believe they got valuable intelligence and were able to get all that they could out of him," Gibbs said.

 

"All they could?" Wallace asked.

 

"Yeah," Gibbs said.

 

That was it for some lawmakers. "It is now clear beyond doubt that the administration squandered an invaluable opportunity to gather intelligence from a captured terrorist fresh from al Qaeda's operation in Yemen," Sessions said. "But this weekend, the president's spokesman actually argued that the right call was made and that fifty minutes of interrogation was sufficient."

 

On Monday, Lieberman and Collins wrote to Attorney General Eric Holder, as well as top White House terrorism official John Brennan, saying the decision to give Abdulmutallab full American constitutional rights had been a serious mistake, but that "the administration can reverse this error, at least to some degree, by immediately transferring Abdulmuttalab to the Department of Defense ... [which has] the authority and capability to hold and interrogate Abdulmuttalab and try him before a military commission."

 

Sessions agrees, and it's a suggestion more lawmakers are likely to support in coming days. But it raises a critical question: Once Abdulmutallab has been given the Miranda warning, can the administration take it back?

 

"Of course," says David Rivkin, a lawyer who served in the Reagan and Bush I administrations. "To the extent that the facts justifying his designation as an enemy combatant are there, you can always designate him as such. Miranda rights are relevant only to interrogations in the criminal justice system. If he were transferred to the military justice system, it wouldn't be taking those rights back -- it would be just irrelevant."

 

Others worry that it wouldn't be so easy. "The problem is, once you get them into the civilian system, the federal courts have made very clear that they're not going to let go easily," says Lee Casey, another veteran of the Reagan and Bush I administrations who has co-authored several articles with Rivkin. "While I think it would be a great idea, given how solicitous the courts have been of these detainees, I doubt the federal courts would cede jurisdiction."

 

Whatever the degree of difficulty, it is a fact that Abdulmutallab was recruited by al Qaeda, trained by al Qaeda, and sent to the United States by al Qaeda. It's reasonable to assume he could be an important source of information about the terrorist organization. For Lieberman, Collins and Sessions, that makes it worth the effort.

 

You might think the president would agree. After all, he has said specifically that the United States is "at war against al Qaeda." But changing Abdulmutallab's status would be an admission that his administration got it wrong when confronted by an al Qaeda terrorist determined to kill Americans. And it's not at all clear that that is something the president is prepared to do.

 

Byron York, The Examiner's chief political correspondent, can be contacted at byork@washingtonexaminer.com. His column appears on Tuesday and Friday, and his stories and blog posts appears onwww.ExaminerPolitics.com ExaminerPolitics.com.

Read more at the Washington Examiner: http://www.washingtonexaminer.com/politics/Senators-rebel-over-treating-terrorist-as-civilian-82641967.html#ixzz0eITYEn7a

David Rivkin transcript:

Fox & Friends appearance, Monday, Jan. 25, 2010

(video available at youtube.com/justourfreedom)

Gretchen Carlson: Joining us now to weigh in is David Rivkin, a former Justice Department official. Good to see you, Dave …. When you heard Robert Gibbs say that the “crotch bomber,” as Brian likes to call him, was interrogated for only 50 minutes that made you extra hot under the collar. Why?

Rivkin: Absolutely. Because it is utterly incompetent. Every intelligence expert knows that it takes days and weeks and months to get all the intelligence you can get out of a person. Even then you don’t know if you got everything. To say smugly that 50 minutes is all you need is appalling.

 

Brian Kilmeade: It just defies logic. A customs official, an FBI official were the ones who questioned him for 50 minutes and then he got medical treatment.

 

Rivkin: You’re right, remember you’re supposed to get all the intelligence experts.

Where is the CIA? Where is military intelligence? Where is all the interagency cooperation that is supposed to be brought together to gain intelligence supposedly after 9-11? You had local people on the scene. Its probably not the “A” team, I hate to say it about Detroit—but the best people in Washington spend 50 minutes with him?

The thing is they did it. What is even worse from my perspective, they’re defending it. They’ve learned nothing from this experience. They had a knee jerk reaction to do law enforcement stuff, and they’re defending it weeks into the process.

 

Gretchen Carlson: Some people would say it’s not a knee jerk reaction, Dave, they would say this is the policy of the Obama administration. That they have made a determination in their minds that they’re going to charge any terrorist as a criminal, not an enemy combatant.

 

Rivkin: But they could’ve done that. They didn’t have to do it this fast. It was a knee jerk reaction because they didn’t have a system in place. Remember all these senior intelligence advisors were never consulted about it. It was not even decided by the attorney general. [This] was not enough time to call anybody in Washington.

They put a system in place that lurches toward the result and weeks later they’re still defending it. That’s why I was so upset listening to Gibbs yesterday.

 

Brian Kilmeade: [Umar Farouk Abdulmutallab] was talking non-stop.  Everyone agrees he was talking non-stop. Talking about second bombs.

 

Rivkin: You are most vulnerable at that time. Psychological shock, being captured, this is the time to press on.

 

And the minute they said you have the right to remain silent, you can have a lawyer he never spoke again and he’s got a lawyer. And they said they “hope” he changes his mind and begins to talk.

 

Rivkin: Lots of intelligence, even if you get out of him weeks and months down the road, would not be as actionable.

 

I can see you seething right now because you know what’s at stake. David Rivkin, thanks so much.

 

Rivkin: The security of the American people. Very depressed.

 

 

 

Former Justice Department official calls out recent intelligence failure on Fox & Friends show

Published on January 25, 2010

by Brent Baldwin

(OfficialWire)

WASHINGTON, D.C.

Lawyer and former Reagan Justice Dept. official David Rivkin was upset after hearing White House Press Secretary Robert Gibbs defend the decision to interrogate accused Detroit bomber Umar Farouk Abdulmutallab for only 50 minutes before granting him an attorney. Rivkin explained his frustration live during the Fox and Friends morning show that aired Jan. 25.

“Every intelligence expert knows that it takes days and weeks and months to get all the intelligence you can get out of a person. Even then you don’t know if you get everything,” Rivkin said. “To say, smugly, that 50 minutes is all you need is appalling.”

The accused terrorist was granted an attorney after a nearly hour-long interrogation session and immediately stopped speaking on the advice of counsel. Rivkin went on to argue that 50 minutes was not nearly enough time to consult experts in Washington, get feedback from the attorney general, or utilize interagency cooperation from the CIA and military intelligence.

“The thing is they did it. What even worse from my perspective, they’re defending it,” Rivkin continued. “They’ve learned nothing from this experience. They had a knee-jerk reaction to do law enforcement stuff, and they’re defending it weeks into the process.”

Rivkin said the Obama Administration could’ve still charged the accused terrorist as a criminal but that it did not have “a system in place” and should’ve consulted more senior intelligence officials. For instance, interrogators could have capitalized more on the mental state of the recently arrested prisoner, Rivkin said. “You are most vulnerable at that time. Psychological shock, being captured, this is the time to press on,” he told hosts for Fox & Friends.

Rivkin, who is a vocal proponent for classifying accused terrorists as enemy combatants instead of criminals, closed by lamenting the fact that much or any intelligence gathered from the suspect “weeks and months down the road would not be as actionable.”

About David Rivkin
David Rivkin is an attorney in private practice and partner at Baker & Hostetler in Washington, D.C., who has had a lengthy career distinguished by service in the White House during two presidents’ terms, in the U.S. Department of Justice and in the U.S. Department of Energy. He is a well-known writer and media commentator on matters of constitutional and international law, as well as foreign and defense policy. He is a visiting fellow at the Nixon Center, contributing editor at the National Review, and a member of the Advisory Council at National Interest magazine. He currently serves as co-chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies. He also represents foreign governments and corporate entities on legal, political, defense, economy and public relations matters.  For more information, visit www.davidrivkin.com.

Contact

David B. Rivkin, Jr.
drivkin@bakerlaw.com
Tel: (202) 861-1731

Writing in the New York Times, Michael Kinsley defends treating Umar Farouk Abdulmutallab (the al-Qaeda operative who recently tried to blow up an airliner over Detroit) as a criminal defendant rather than an enemy combatant. He argues that, since any line to be drawn between waging war and engaging the criminal-justice system is going to be arbitrary, the U.S. border is as good a line as any. That is, al-Qaeda terrorists captured abroad are enemy combatants while those captured at home are criminal defendants, entitled to all the rights provided by our Constitution and statutes.

The problem is that the lines between law enforcement and war are not arbitrary (but rather well defined by law and tradition) and that choosing the U.S. border as a nice, bright line is not driven by military strategy, logic, or law. There is nothing sacred about American territory. Indeed, at least two major wars — the Revolutionary War and Civil War — and numerous military conflicts with Indian tribes were prosecuted on American soil. This war can be (and has been) fought here as well as in Afghanistan, Iraq, or Yemen. In fact, the United States is the enemy’s favored battleground, because this is where al-Qaeda’s most desired targets — American civilians — are most heavily concentrated. This is why the victims of 9/11 died in New York, Washington, and the fields of Pennsylvania, rather than at American facilities and installations abroad.

Nor, in fact, is the line Mr. Kinsley proposes arbitrary; it is ideological. Adopting a war-abroad/law-enforcement-at-home rule is nothing but an exercise in political triangulation. It indulges the Left’s fundamental disdain for the use of military force, while permitting the Obama administration to claim that it actually is trying to protect the American people by taking the fight to the enemy. Read between the lines — or read the lines. Mr. Kinsley contrasts our roles “as a liberal democracy and as a legitimately aggrieved superpower.” Why is it, exactly, that those two things are inconsistent? We are, in fact, a legitimately aggrieved liberal democracy that happens, also, to be a superpower.

At bottom, law enforcement and war do not mix well because they begin with very different assumptions and, as a result, are governed by fundamentally different rule sets. It is those assumptions that the Obama administration and the Left in general find problematic. Thus, our civilian criminal-justice system is designed to constrain the overwhelming power of the state vis-à-vis an individual criminal defendant. Ask any criminal-defense lawyer: The prosecution has the edge at almost every point. It decides who to investigate and who to charge, has resources that (however constrained) far outweigh those of any ordinary defendant, and controls the evidence, crime scene, and witnesses.

Presented with these realities, our body polity has decided at least since the 1960s to temper and handicap the government’s ability to investigate, prosecute, and punish criminal misconduct. This is why, as Mr. Kinsley correctly describes, many a murderer, rapist, or child molester goes free. To be sure, despite all of these constraints on the police, prosecutors, and prison authorities, in the final analysis, the state is overwhelmingly powerful as compared with even the most deviant and potent criminals. This is true even in cases of organized crime and drug gangs. However well armed and ruthless such groups may be, any properly functioning state will be capable of marshalling sufficient force to maintain an overwhelming predominance.

In war, the challenge to governmental authority is not individual but collective, and is far more dangerous as a result. Foreign belligerents have broader means and a stronger motive to disrupt the social order than common criminals do. The power of their armaments and the pervasiveness of their ideology can often be traced to the direct or indirect support they receive from other international players. All states at some basic level have an interest in maintaining civil law and order — and however much foreign police or judicial systems may hamper U.S. law enforcement in certain cases, they do not actively seek to promote the criminal activity involved. By contrast, in war, foreign states may choose to support — directly or indirectly — enemy belligerents, effectively augmenting their reach and capabilities.

As a result, governmental power is necessarily augmented during wartime. This is especially the case in liberal-democratic states, where that power is ordinarily subject to greater limits than in authoritarian regimes. It is, of course, this very augmentation that the Bush administration’s critics found so unacceptable after Sept. 11, 2001. The alternative, however, is accepting greater risk to the civilians al-Qaeda wants to target. The right way to proceed, consistent with the law, morality, and history, is to treat captured enemy personnel as enemy combatants, subject to the laws of war. By contrast, criminals — including individuals who commit terrorist acts but, whatever their ideological predilections, are not members of entities such as al-Qaeda that have been engaged in an armed conflict with us (this would include Timothy McVeigh and Major Nidal Malik Hasan) — should be treated as criminal suspects subject to the workings of the criminal-justice system. Treating an al-Qaeda operative who enters the United States to carry out an attack as a common criminal not only denies the nature of this challenge we face, but it works to level the playing field to our disadvantage.

Former Justice Department official David Rivkin calls increased airport screening a starting point on Hardball with Chris Matthews

Published on January 06, 2010 by Brent Baldwin (OfficialWire) WASHINGTON, D.C.

Former Reagan Justice Department official David Rivkin appeared live on MSNBC's Hardball with Chris Matthews to discuss increased airport profiling measures in the wake of the Christmas Day attempted terrorist bombing of Flight 253 to Detroit.

It's a reasonable way to go. with profiling, let's leave aside political correctness, Rivkin told host Chris Matthews. It's a way of marshaling scarce resources to manage a large threat. The Transportation Security Administration has increased inbound flight screening measures in 14 foreign countries of origin including: Afghanistan, Iran, Saudi Arabia, Cuba, Libya, Pakistan and Nigeria.  Rivkin noted that the real question was whether this was the right way to profile.

"I frankly think we need to look at other factors: We need to look at age, we need to look at gender. but we shouldn't be blinded by it," he added.

Rivkin asserted that the profiling process should be combined with other measures and worked “from beginning to end of the transportation process. "Selecting people, checking people, making sure they don't get through if they are carrying some suspicious objects, you need to do it all," Rivkin said.

Joining Rivkin on the broadcast was Alejandro Beutel of the Muslim Public Affairs Council, who offered a counterargument that behavioral profiling was more useful, while agreeing with Rivkin that there should be a layered defense. Matthews took the side of Rivkin, also admitting our lack of resources and pointing out to Beutel that it was simply common sense to profile based on countries of origin.

"I'm not against nuanced behavioral profiling but we don't have the resources for it," Rivkin said. If we push Al-Qaeda to stop recruiting [from these countries]; this is what you do in warfare, you push your enemy to operate in less than optimal ways. I would bet they won't be able to recruit enough Scandinavians [to counter profiling measures].

Rivkin told Beutel that he was wrongly worried about broader groups being stigmatized. "We don't do that in this country, Rivkin said. All we are talking about is allocating resources, not stigmatizing."

About David Rivkin
David Rivkin is an attorney in private practice and partner at Baker & Hostetler in Washington, D.C., who has had a lengthy career distinguished by service in the White House during two presidents' terms, in the U.S. Department of Justice and in the U.S. Department of Energy. He is a well-known writer and media commentator on matters of constitutional and international law, as well as foreign and defense policy. He is a visiting fellow at the Nixon Center, contributing editor at the National Review, and a member of the Advisory Council at National Interest magazine. He currently serves as co-chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies. He also represents foreign governments and corporate entities on legal, political, defense, economy and public relations matters.

For more information, visit www.davidrivkin.com or contact:

David B. Rivkin, Jr.
drivkin@bakerlaw.com
202.861.1731
Suite 1100
1050 Connecticut Avenue, NW
Washington, DC 20036-5304