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.

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Summary:

The Obama administration's decision to pursue a federal case against the man accused of trying to blow up a plane on Christmas Day has stirred debate. David Rivkin, co-Chair of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies, says the case is perfect for a military tribunal. But David Laufman, who served as an assistant U.S. Attorney in the Eastern District of Virginia from 2003-2007, says the federal court is the proper venue for the case.

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Official Transcript:

MICHELE NORRIS, host:

The man who tried to blow up a plane on Christmas is at the center of another debate. Umar Farouk Abdulmutallab is being held in federal prison in Michigan and is due to appear in court on Friday. The Obama administration has decided to pursue the case in federal criminal court, not through a military commission, and that decision has both supporters and detractors. We're going to hear now from both sides on that question.

MELISSA BLOCK, host:

David Laufman is a former assistant U.S. attorney in the Eastern District of Virginia, who prosecuted several terrorism cases there. He also worked in the Justice Department helping to coordinate the department's response after 9/11. Welcome to the program.

Mr. DAVID LAUFMAN (Former Assistant U.S. Attorney, Eastern District of Virginia): Thank you.

BLOCK: And we're also joined by David Rivkin, co-chair of the Center for Law and Counterterrorism at the nonprofit Foundation for Defense of Democracies. He worked in the Justice Department under President George H.W. Bush focusing on legal policy and intelligence oversight. Welcome to you.

Mr. DAVID RIVKIN (Co-Chair, Center for Law and Counterterrorism, Foundation for Defense of Democracies): Good to be with you.

BLOCK: And David Laufman, let's start with you first. You prosecuted terrorism cases yourself, as I mentioned, and you say federal criminal court is the proper venue for this case. Why is that?

Mr. LAUFMAN: Well, prosecution of this individual in a criminal justice system is consistent with a vast bulk of experience of how individuals accused of committing terrorism offences has been handled, going back far beyond the Obama administration into the first George Bush administration and before that. It is by far the norm for the government to proceed by way of criminal prosecution rather than in the more recent military commission system.

BLOCK: So you say president is that that would be how this is handled.

Mr. LAUFMAN: Correct.

BLOCK: David Rivkin, you disagree. You say that Abdulmutallab should have been charged as an enemy combatant, should've been pursued through military courts.

Mr. RIVKIN: Right, not because of lack of precedent. My colleague is absolutely right. That's the way things have been done most of the time. But let's consider several factors. First of all, this is a poster child for a military commission. This is an individual who immediately upon being detained indicated he was a member of al-Qaida. This is an individual who possesses, if at all, valuable operation intelligence - not strategic intelligence. He's not Osama bin Laden.

His intelligence is of vanishing value, it's essential to interrogate him immediately, interrogate him properly. He was never subjected to gruesome(ph) interrogation. He was never held on any black site. If that is not the right person for military commission, which combines the benefits of being able to obtain (unintelligible) intelligence quickly before he gets (unintelligible) up, then I don't know who is.

BLOCK: I want to hear from both of you on one other argument that's raised -and that's this, that when terrorism cases are channeled through the federal criminal system, it can foster cooperation around the world with foreign intelligence, foreign law enforcement. Is that, do you think, plausible or relevant? David Rivkin, you first.

Mr. RIVKIN: Well, actually, there is some truth, unfortunately, to this argument because much of the rest of world certainly (unintelligible) allies are not serious about all things military. Military commissions and the whole military justice system has gotten a very bad rap. But there's also one other point - the symbolic benefits, democracy - words in a democracy matter. How you portray a given offense matters a great deal to your citizens, to the community at large. This is not just an act of terrorism. I've been living with terrorism for decades, unfortunately. This is an act of war. It is a different animal.

So, on one the hand we have a commander-in-chief who tells us we're at war, but every time, here's somebody who carries out an act of war against the United States, we treat as an act of terrorism. This is more than an act of terrorism.

BLOCK: David Laufman, what do you make of that point? That this, according to David Rivkin, was an act of war, should be treated as such in the courts?

Mr. LAUFMAN: I don't debate the point that there may be parallel jurisdiction appropriate to try him in the military commission system. My point is simply is that the American criminal justice system has worked very effectively to deal with precisely these kinds of offenses. The Richard Reid case, which arose, I believe around Christmas of 2001, when we were at the highest level of crisis management in the post 9/11 moment, is precisely on all fours with his case. He was tried criminally. There was no great hue and cry. Richard Reid was successfully prosecuted. He got a life sentence. This guy, if he's convicted, is going to get a very, very heavy sentence.

BLOCK: We're talking about Richard Reid, the so-called shoe bomber.

Mr. LAUFMAN: Correct.

BLOCK: Richard Reid pleaded guilty in federal court and, as you say, serving a life sentence at Supermax in Colorado. David Rivkin, why shouldn't that be the closest parallel to what we're talking about here? It was also an attempted attack on an airliner.

Mr. RIVKIN: Well, first of all, at the time Mr. Reid was apprehended, the military commission system was not stood up. Second of all, I frankly find the whole argument puzzling - the argument by reference to tradition. Tradition is a good thing, but following tradition blindly - let's stipulate, even if Mr. Reid was apprehended at the time military commission was stood up and the Bush administration did it, it's not bipartisan(ph). It was a mistake. Okay? Just because you made one mistake does not mean you have to keep repeating that mistake. New president comes in, tremendous more authority. He says, and I take him at face value, but military commissions are important. Well, give them some exercise.

BLOCK: David Laufman, what do you think?

Mr. LAUFMAN: It's not a choice of more process, less security. We've had eight years to get the commission system right, and we still haven't gotten it right. I don't think the commission system should be a Petri dish now for bringing terrorism cases into a system that is not able to adjudicate them effectively.

BLOCK: Thanks very much to both of you for coming in.

Mr. LAUFMAN: Thank you.

Mr. RIVKIN: Thank you.

BLOCK: David Laufman is the former assistant U.S. attorney in the Eastern District of Virginia. And David Rivkin is with the Center for Law and Counterterrorism at the Foundation for Defense of Democracies. Both have worked in the Justice Department.

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The following was transcribed from the January 5, 2010 Hardball with Chris Matthews program.

Chris Matthews: In an effort to increase security, obviously, the Transportation Security Administration (that's the TSA; the people that check us at the airport) has increased screening measures for airline passengers coming from 14 countries around the world there. They’re all highlighted there [Algeria, Nigeria, Libya, Cuba, Sudan, Somalia, Yemen, Saudi Arabia, Syria, Iraq, Iran, Lebanon, Afghanistan, Pakistan]. I have Alejandro Beutel there with the Muslim Public Affairs Council. He says this is the wrong way to go about safety. David Rivkin, a former Reagan and Justice Department official who’s been with us, disagrees. Let me start with you, David: Why is it smart to go to these 14 countries— Afghanistan, Algeria—includes Cuba, by the way—Iran, some on the state terrorism list. All these countries, mostly Islamic countries except for Cuba, I guess—and what they’re doing in these cases are extra pat-downs, basically extra check of your carry-on luggage, it’s sort of what they do –I travel all the time, gentlemen—it’s what they do when you get on that SSS list, when they pull you aside and they say ‘Okay, we’re going check out everything, we’re going to wand you, we’re going to check your luggage by hand.’ They do that to you if you break one of the rules or the buzzer goes off too many times. Is that the right or wrong way to go?

David Rivkin: It’s a reasonable way to go. Let’s agree that profiling, leave aside political correctness, is a way of marshalling scarce resources to manage a large threat. The real question: Is this the right way to profile? Let’s agree that coming from these countries is a reasonable proxy for the enhanced probability they might be a terrorist. I frankly think we need to look at other factors: we need to look at age, we need to look at gender—

CM: What does that tell you?

DR: Well, young males are disproportionate—again, we shouldn’t be blinded by this—there are some women terrorist bombers, but by and large they are males—

CM: Okay then, let me ask you this question: The people that attacked us on 9/11—Hard, horrific evidence—they were checked, they were called back out of line again because they set off the metal detectors. They’re carrying box cutters! They were still allowed to get on the planes. They still killed the 3,000 people. So, what good does it do to pull a person out of line and do one of these pat-downs if all it’s going to do is slow somebody down for ten minutes?

DR: Nothing if it’s ineffective by itself, but if you combine it with other measures—you have to work the process from beginning to end. Selecting people, checking people, and making sure they don’t get through if they are carrying some suspicious objects. You need to do all of them; it’s not either/or.

CM: What do we do? These are countries, not ethnic groups, being identified. These are countries, and by the way just to remind everybody: 9/11? 15 Saudis, one Egyptian, one Lebanese and two from the Emirates countries, the UAE. So they come from certain countries so far. They could be coming from Denmark tomorrow. We don’t know, but their countries of origin correspond to the countries on this list. Your thoughts?

Alejandro Beutel: Exactly. Well, my colleague mentioned before that we need to have a layered defense, and that’s correct. But the sort of ethnic and religious profiling that’s taking place—

CM: Where is that taking place?

AB: Right now with the latest TSA standards, by selecting these 14 countries, that’s just basically telegraphing our strategy. If we decide to profile from these countries, then terrorists are just going to recruit elsewhere. Profiling’s not going to help against Richard Reid, it’s not going to help against Jose Padilla, it’s not going help against any of the UK bombers that took place in the 2006 plot—

CM: Why not?

AB: Because these are people who don’t fit profiles. A 2005 study by the Library of Congress found that there is no such thing as a reliable terrorist profile, especially based on ethnic background.

CM: But this is by country—country of origin.

AB: Yes. I understand that, but again though, even based on country of origin terrorists can—

CM: Okay, so if you can only check certain people, because you can’t check everybody, who should you check? Have you ever been to LA airport, LAX, in the morning, 6:00 when there’s a billion people there?

AB: Yes, Absolutely. Yes.

CM: Or around here at Reagan where there’s a billion people there on a Saturday morning, you can’t check everybody through exhaustive checks or people will never get on a plane, so how do you single out the people you check? That’s a question I want answered.

AB: Well, let’s go back to what President Obama was saying earlier in his statement about the review: What we need to do is make sure that our intelligence actually connects the dot.

CM: But in terms of checking people when they get on airplanes, which people should be checked most thoroughly?

AB: Well actually what you need to do in terms of a smart defense is make sure that, in the layers themselves, you need to check people beforehand by having the proper intelligence—

CB: But how do you check when they get on airplanes? I’m asking a simple question. Give me an answer.

AB: I’m getting to it, because it’s a nuanced issue. So you have Stage One beforehand and then once you get to the airport itself, what you do is you look at certain behaviors that they are doing—behavioral profiling—if they’re doing something that’s strange, if you’re asking basic questions about ‘Where are you going to be going?’

CM: Wait a minute. Who asks these questions? I go to an airport and they don’t ask any questions.

AB: Behavioral profiling, for instance at Logan Airport in Boston, they’re doing something right now where they have a pilot program where it’s a part of airport security itself. One of the last rings of defense is that they look for things that are possible suspicious behaviors. It doesn’t look at ethnicity or race or religion, but looks at the actual behaviors themselves—things that might be dead giveaways to someone who might have something suspicious.

CM: Like what?

AB: For instance, if someone’s going to be doing something where they’re going to be a little bit fidgety, or they’re not answering questions straight—

CM: But there are no questions put to you.

AB: In some cases, though, there will be questions put to individuals at the last minute.

CM: I’m all for that, but how do you decide who to ask the questions of?

AB: It’s not just about questions either, though. It’s also making sure to read the body language, again there are multiple things—

CM: Ok, give me a procedure to defend America, quickly. What would be your procedure to defend this country? His [Rivkin’s] procedures at least start with this country of origin.

DR: I’m not against the nuanced profiling.

CM: What would be your approach?

AB: My approach would be a layered defense starting with smart intelligence making sure that we share the information, then from there making sure that once we get closer to the airport we have behavioral assessments that don’t rely on certain profiles that are not going to be effective.

CM: Like country of origin?

AB: Like country of origin, ethnicity—

CM: Okay, I just don’t know how you would go about it. You said they ask questions, they don’t ask any questions right now.

DR: No. We need this kind of profiling. I’m not against nuanced behavioral profiling. We don’t have resources for it. But let me point out, the ultimate criticism is profiling is ineffective. Let me tell you, if we push Al-Qaeda to stop recruiting the people they’ve been recruiting and start looking for Scandinavians—

CM: Yea, they will.

DR: They will, but they would trickle down. This is what you do in warfare. You push your enemy to operate in less than optimal ways. I would bet you they’re not going to be able to recruit enough Scandinavians, and profiling is just the starting point. You are supposed to look at other things. It’s not a panacea, but to deny that it’s useful as a foundational stone is just silly.

AB: No. It only displaces the problem and all it takes is one or two people to do these things. That’s all it takes.

DR: No it doesn’t displace. Why does it displace?

CM: Let me ask you a general question. Let’s get away from race and all this and get to the simple question. Let’s get to nationality. If you’re looking for provisional IRA people back ten years ago, wouldn’t you start with the Irish?

DR: Of course.

CM: I mean, is that unreasonable? Is that prejudicial? Let me ask you that. Is that prejudicial, to look for the IRA among the Irish? Is that prejudicial to you?

AB: No, because—

CM: Because they recruit the IRA among the Irish.

AB: But the thing is that it’s very specific. There’s a difference between the IRA, which was an ethnic-based group, very specific—

CM: Don’t you recruit Islamic terrorists among Islamic people?

AB: How can you tell who’s a Muslim?

CM: But this list is starting by nation-states. Like you would start with Ireland, if a guy’s got a passport from Northern Ireland, you might say—

AB: But Chris, how can you tell who is a Muslim?

CM: You can’t tell!

AB: Exactly, and that’s part of the thing. You cannot—

CM: But you can begin to. Let’s get back to my question. A thousand people get on the plane. You can only check ten. Which ten do you check? That’s what we’re saying.

DR: Not the old little grandma, that’s for sure.

CM: Do you check Joan Rivers?

AB: No, but you can’t necessarily tell who’s a Muslim.

CM: Ok, this is the problem, and here’s where I get a little heated because I think everybody likes to push aside the issue. You have limited resources. I don’t think we’ve paid the TSA people enough. I think we’ve seen some New York cops—retired cops with street instinct—standing around those airports, who have a sense of these questions. By the way, you can’t interrogate passengers. You can’t ask them all these questions right now.

DR: Let me explain one thing. My colleague doesn’t want profiling, let’s be candid, because he’s afraid it would lead to broader stigmatization of a community. This is not what this country is about.

CM: Yea. I would hate it if automatically I was a trivialized person every time I went to an airport. I wouldn’t like it, either.

DR: What we are talking about is allocation of scarce resources, not stigmatizing people.

CM: I’ll tell you one thing: Everyone from those countries knows why this is going on, and it’s not because of prejudiced people. It’s because common sense tells you. By the way, if Americans kept attacking Arab countries, we’d be checked.

DR: Of course. Profiling is common sense.

CM: I hate to say it, but this conversation’s going to get more heated as time goes on. If we get hit again, this won’t be a calm conversation. Thank you both for coming. Please come again.

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