May 25, 2010. From: Michael Yon [http://www.michaelyon-online.com/court-decisions-on-bagram-detainees.htm]

We all are aware that war leads to difficult situations. In regard to detainees, we've seen terrorists released only to strike again. Yet in the interest of justice we are concerned about detaining potentially innocent people. Difficult times, difficult answers. In summary, some detainees at Bagram are trying to use American courts to chisel their way out.

Last year, a group of people were asked to join in offering an opinion to the court. Those were: Special Forces Association, U.S. Army Ranger Association, Senator Lindsey Graham, Col. (ret) Abraham German, Wade Ishimoto, Prof. Andrew Nichols Pratt, Dr. Dennis Walters, Rear Admiral (ret) George Worthington, Michael Yon and Senator Ryan Zinke.

The good attorneys who are trying to keep us from getting blown up by repeat offenders emailed today. The above parties received the following message from Attorneys David Rivkin and Carlos Ramos Mrosovsky:

Dear Gentlemen,

We are very happy to report a tremendous success in the Maqaleh litigation before the D.C. Circuit. Last Friday, the panel of three judges handed down their decision, as well as an opinion by Chief Judge Sentelle, which reversed the district court and ordered that the Bagram detainees' habeas petitions be dismissed. We have attached Judge Sentelle's opinion for your review.

It appears that our amicus brief was right on target. While both the government and counsel for the detainees made "bright line" arguments -- that is, they argued that habeas rights should always or should never apply on U.S. military bases overseas -- the court refused to accept either extreme position. Instead, it focused on the "practical factors" which were emphasized in our brief. In this regard, the most important language appears on page 22 of the decision: " . . . we hold that the third factor, that is 'the practical obstacles inherent in resolving the prisoner’s entitlement to the writ . . . weighs overwhelmingly in favor of the position of the United States." The court then concluded that the fact that Bagram is located within an active theater of war weighed strongly against extending habeas rights to detainees held there. Given the court's emphasis on the "practical difficulties" side of the analysis, we feel confident that the involvement of amici who could speak with ultimate credibility as to those difficulties cannot but have made an immense impact.

At this stage, it is too early to know whether counsel for the detainees will seek a final appeal to the Supreme Court. Even if she does so, however, we believe that, given the unanimous nature of the D.C. Circuit panel's decision and its well-reasoned character, the Supreme Court is most unlikely to grant this request. Overall, the D.C. Circuit's Maqaleh decision represents a significant victory.

Thank you again for your participation in this amicus briefing project. Please do not hesitate to contact us if you have any questions.

Best regards,
David & Carlos

WASHINGTON — A federal appeals court ruled Friday that three men who had been detained by the United States military for years without trial in Afghanistan had no recourse to American courts. The decision was a broad victory for the Obama administration in its efforts to hold terrorism suspects overseas for indefinite periods without judicial oversight.

The detainees, two Yemenis and a Tunisian who say they were captured outside Afghanistan, contend that they are not terrorists and are being mistakenly imprisoned at the American military prison at Bagram Air Base.

But a three-judge panel of the United States Court of Appeals for the District of Columbia ruled unanimously that the three had no right to habeas corpus hearings, in which judges would review evidence against them and could order their release. The court reasoned that Bagram was on the sovereign territory of another government and emphasized the “pragmatic obstacles” of giving hearings to detainees “in an active theater of war.”

The ruling dealt a severe blow to wider efforts by lawyers to extend a landmark 2008 Supreme Court ruling granting habeas corpus rights to prisoners at Guantánamo Bay, Cuba. A lower court judge had previously ruled that the three Bagram detainees were entitled to the same rights, although he had found that others captured in Afghanistan and held there were not.

A lawyer for the detainees, Tina Foster, said that if the precedent stood, Mr. Obama and future presidents would have a free hand to “kidnap people from other parts of the world and lock them away for the rest of their lives” without having to prove in court that their suspicions about such prisoners were accurate.

“The thing that is most disappointing for those of us who have been in the fight for this long is all of the people who used to be opposed to the idea of unlimited executive power during the Bush administration but now seem to have embraced it during this administration,” she said. “We have to remember that Obama is not the last president of the United States.”

Senator Lindsey Graham, Republican of South Carolina and an influential lawmaker in the long-running debate over detentions, called the ruling a “big win” and praised the administration for appealing the lower court’s ruling.

“Allowing a noncitizen enemy combatant detained in a combat zone access to American courts would have been a change of historic proportions,” he said. “It also would have dealt a severe blow to our war effort.

“There is a reason we have never allowed enemy prisoners detained overseas in an active war zone to sue in federal court for their release. It simply makes no sense and would be the ultimate act of turning the war into a crime.”

It was not entirely clear how the ruling might affect detention policies for terrorism suspects caught outside Afghanistan or Iraq. While the Obama administration has stepped up the use of Predator drone strikes to kill terrorism suspects and has relied on other countries, like Pakistan, to hold and interrogate suspects who are captured alive, it is not known whether the United States has directly captured anyone outside Afghanistan or Iraq recently — and, if so, where it has taken them.

A Justice Department spokesman, Dean Boyd, would not comment on the decision.

David Rivkin, who filed a friend-of-the-court brief on behalf of the Special Forces Association urging the court to side with the government, said the ruling would have broad significance by removing doubts over whether the United States could capture and interrogate terrorism suspects without worrying about having to collect, in dangerous situations, evidence that would later stand up in court.

“This is an excellent decision,” said Mr. Rivkin, who was a White House lawyer in the administration of the first President Bush. “It has restored a considerable degree of sanity to what threatened to be a crazy legal regime that would have deprived the United States, for the first time in history, of the opportunity to capture and detain — outside of the United States, in theaters of war — high-value combatants. That has been solved, and it will apply to many other situations in the future.”

The case was brought on behalf of a Tunisian man who says he was captured in Pakistan in 2002, a Yemeni man who says he was captured in Thailand in 2002, and another Yemeni man who says he was captured in 2003 at another location outside Afghanistan that has not been disclosed. (The government has disputed the second Yemeni’s claim.)

The men’s case was originally heard by Judge John D. Bates of the Federal District Court, an appointee of former President George W. Bush. The Bush and Obama administrations had both urged Judge Bates not to extend habeas corpus rights beyond Guantánamo, arguing that courts should not interfere with military operations inside active combat zones.

But in April 2009, Judge Bates ruled that there was no difference between the three men who had filed suit and Guantánamo prisoners. His decision was limited to non-Afghans captured outside Afghanistan — a category that fits only about a dozen of the roughly 800 detainees at Bagram, officials have said.

In urging the appeals court to let Judge Bates’s decision stand, lawyers for the detainees argued that reversing it would mean that the government would be able “to evade judicial review of executive detention decisions by transferring detainees into active combat zones, thereby granting the executive the power to switch the Constitution on or off at will.”

But in the appeal panel’s decision reversing Judge Bates, Chief Judge David B. Sentelle said there had been no such gamesmanship in the decision to bring the three detainees to Bagram because it happened years before the Supreme Court’s Guantánamo rulings.

Still, he left the door open to approving habeas corpus rights for prisoners taken to prisons other than Guantánamo in the future, writing, “We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than speculation.”

Ms. Foster vowed to keep fighting. But Mr. Rivkin said that the detainees’ chances for overturning the decision were dim because the three appeals judges spanned the ideological spectrum: Chief Judge Sentelle, appointed by President Ronald Reagan; Judge Harry T. Edwards, appointed by President Jimmy Carter; and Judge David S. Tatel, appointed by President Bill Clinton.

It could also be difficult to win a reversal by the Supreme Court, where five of the nine justices supported giving habeas rights to detainees in the Guantánamo case. Among the narrow majority in that case was Justice John Paul Stevens, who is retiring.

The nominee to replace him, Elena Kagan, who as solicitor general signed the government’s briefs in the case, would most likely recuse herself from hearing an appeal of the decision, and a four-four split would allow it to stand.

Published in the LATimes: May 10, 2010 By: David B. Rivkin Jr. and Vincent J. Vitkowsky

In a recent hearing before the Senate Judiciary Committee, Atty. Gen. Eric H. Holder Jr. said that a civilian trial in New York City for Khalid Shaikh Mohammed and four other accused 9/11 plotters was still “not off the table.” This is unfortunate, and not only because such a trial would inevitably compromise classified information, impose massive security and logistical costs on New York, and provide the defendants with a superb propaganda platform. Another major problem with a civilian trial has been largely overlooked: the impact on the 12 private citizens unlucky enough to be chosen as jurors.

The trial of Mohammed would be a long and dangerous ordeal for jurors. They would be forced to surrender years of their lives. They would have to be entrusted with classified information of value to Al Qaeda. Their identities almost certainly would become public knowledge, and they could easily be subjected to intimidation. Consider Osama bin Laden’s threat on March 25 to execute all captured Americans if the defendants or any other Al Qaeda operatives in U.S. custody are executed. Wouldn’t jurors who vote to convict or impose the death penalty have reason to fear that they themselves could become targets for revenge attacks? Meanwhile, a juror who, however improbably, voted to acquit a defendant thought to be responsible for an attack that killed thousands of Americans is likely to be ostracized by many of his fellow countrymen. Either scenario would wreak havoc with civilian jurors’ lives.

The problems posed by holding highly publicized terrorists trials, involving defendants who belong to a functioning paramilitary organization, are well illustrated by the British experience in Northern Ireland, where the British government was forced to create specialized terrorism courts, in part because of the inability to obtain convictions from thoroughly intimidated jurors. Under constant threat from the IRA and other factions, most prospective jurors in Northern Ireland either showed a propensity to acquit or were afraid to serve.

Closer to home and more recently, the experience from the civilian trial of Zacarias Moussaoui, the so-called 20th hijacker, also demonstrated the formidable potential for verbal intimidation, propaganda and grandstanding, with significant deleterious impact on the jury. Even though Moussaoui pleaded guilty, a jury had to be empanelled because the government sought the death penalty. The sentencing phase alone took a full year. The prosecution reviewed the horrors of 9/11, and the defense put the government on trial by arguing that the U.S. did little to prevent the attacks.

Moussaoui had to be ejected from the courtroom several times. As the prosecution described 9/11, he pumped his fists and shouted, “God curse America!” He called the collapse of the twin towers “gorgeous,” and predicted that “3,000 miscreants” will burn in “hellfire.” He testified that the 9/11 survivors and family members were “pathetic” and “disgusting.” Most of the jury favored death, but there was a lone holdout, so the jury delivered a sentence of life imprisonment. Upon hearing it, Moussaoui declared, “America, you lost! I won.” It was difficult not to conclude that, given Moussaoui’s involvement in the worst terrorist attack on American soil, the failure to secure the death penalty was both a setback for the prosecution and a source of grief for many of the victim’s’ families.

To be sure, similar concerns about intimidation can arise when private citizens serve as jurors in some criminal trials. Organized crime’s presence in the U.S. is of much longer standing than Al Qaeda’s, and jurors have often faced threats of retribution. That is one reason criminal trials do not always succeed. Witness, for example, the government’s capitulation earlier this year in deciding not to proceed against John Gotti Jr. in New York after four mistrials in over five years. Yet, while Gotti is a U.S. citizen, entitled to be tried in a civilian court, Mohammed is not.

All of the jury intimidation problems are resolved entirely by trying Mohammed and the other accused 9/11 plotters before a military commission. The jury in this setting would consist of 12 officers who have voluntarily accepted the risks of their profession, including the prospects of facing death on or off the battlefield. Given the choice between trying the accused mastermind of the 9/11 attacks before a vulnerable jury in civilian court or before a military commission in a secure location such as Guantanamo Bay, we should choose wisely.

David B. Rivkin Jr., an attorney in Washington, served in the Department of Justice in the administrations of Presidents Ronald Reagan and George H.W. Bush. Vitkowsky is an attorney in New York City. Both are affiliated with the Center for Law and Counterterrorism.

Anwar al-Awlaki is an American citizen, born in New Mexico. He is best known as a radical imam who preaches jihad and celebrates violent Islamic extremism from within Western societies, including that of the United States. Media reports indicate that he was in contact with U.S. Army Major Nidal Malik Hasan, who is accused of murdering 13 people at Fort Hood, Texas, last November. Al-Awlaki left the U.S. for Yemen (his parents’ homeland) in 2004 and the U.S. government says that he is a member of al Qaeda. Accordingly, President Obama has authorized U.S. forces—including the CIA—to capture or kill al-Awlaki, an order that has provoked outrage among many of the president's own supporters, who claim that any such action would be an illegal, extrajudicial killing of a criminal suspect. In fact, the president's order is entirely lawful and justified.

 

“The fact that al-Awlaki’s role may have been more as a propagandist and interlocutor, rather than a foot soldier, does not render him a civilian or ‘non-combatant’ who is immune from deliberate attack.”

Although he was profoundly criticl of the "war on terror" before his election, President Obama has continued far more of the Bush administration's policies than he has changed. He has not closed the Guantanamo Bay detention facility, he has not withdrawn American forces from either Iraq or Afghanistan, and he has clearly accepted the fundamental proposition that the U.S. is at war with al Qaeda and its allies. As State Department legal adviser Harold Koh (once also a vocal critic of the "war on terror") recently noted in a speech before the American Society of International Law: "We continue to fight a war of self-defense against any enemy that attacked us on September 11, 2001, and before, and that continues to undertake armed attacks against the United States." George W. Bush could not have put it better. It is safe to say that President, rather than candidate, Obama has been hit with a sobering dose of reality about the nature and extent of the jihadist threat.

The president's decision to add Anwar al-Awlaki to the list of al Qaeda operatives that the military and/or the CIA can target for attack is, therefore, hardly surprising. The fact that al-Awlaki is a U.S. national makes no difference. Americans who join in armed hostilities against the United States are enemy combatants. They are subject to attack, capture, and detention pursuant to the law of armed conflict, just like any other enemy combatant who is not a citizen. This was established in the World War II "Nazi saboteur" case, Ex parte Quirin (1942), in which the Supreme Court approved the trial by military commission of eight German agents, at least one of whom was an American citizen. The Supreme Court reaffirmed this basic principle more recently in Hamdi v. Rumsfeld (2004), in which it approved the capture and detention (without criminal charge or trial) of an American who was taken fighting with the Taliban.

In both cases, the court invoked the law of armed conflict. It is this body of law in particular that permits U.S. forces to attack, without warning or any effort to capture, enemy combatants including al-Awlaki. Enemy combatants are not criminal suspects and the U.S. military is not a police force that must first attempt to effect an arrest before using deadly force. The only limitations on the use of force against such individuals involve the basic principles of distinction (forbidding direct attacks on civilians) and proportionality (requiring that the likely collateral damage to civilians from a military operation is justified by its overall objective). The use of technologically innovative instruments, such as remote-controlled drones, in no way violates these well-settled rules. Indeed, technology has long been a handmaiden of war. As a matter of law, drones are no different from aerial bombs, artillery shells, bullets, or bayonets.

It is true that drone attacks have emerged as one of the most significant and effective American instruments in this war, capable not just of killing numerous enemy combatants but, perhaps even more importantly, forcing the entire al Qaeda infrastructure to operate in a “scared mode.” When al Qaeda leaders are afraid to meet or travel, cannot communicate by phone, relying instead of couriers, their ability to wage war is tremendously degraded. Indeed, the fact that these salutary strategic results can be accomplished with unprecedented precision and greatly reduced, albeit of course not fully eliminated, collateral damage is something to celebrate. It is certainly not a reason to challenge the use of drones or seek to subject them to some heightened regulatory restrictions, above and beyond those found in the traditional precepts of the law of armed conflict.

Similarly, the fact that al-Awlaki's role may have been more as a propagandist and interlocutor, rather than a foot soldier, does not render him a civilian or "non-combatant" who is immune from deliberate attack. Like anyarmed force, both al Qaeda and the Taliban include many individuals, who are part of their command and control or logistics and support apparatus. And, just as many members of legitimate military establishments, who rarely if ever actually go into action, are nevertheless "combatants" under the law of armed conflict, so is al Qaeda's leadership (high and low) legally subject to armed attack.

Finally, simply because established targeting lists are prepared far from the actual battlefield is no good reason—as some have claimed—to subject the president's decision to add or delete a name to judicial review. The Constitution makes the president commander in chief, and Congress has specifically authorized the president to use force against those responsible for the September 11 attacks and those who support their efforts. Appropriate congressional committees are briefed on a regular basis about all particulars of the drone program, further enhancing its accountability and bipartisan support.

The questions of when and how to attack the enemy are properly within the president's discretion and not subject to judicial supervision. In this instance, it is the political branches of the federal government, and not the courts, which have the legal authority—along with the necessary technical expertise and political accountability—to conduct all aspects of the war against al Qaeda. If and when enemy combatants, including U.S. citizens like al-Awlaki, are captured, detained, and/or prosecuted, the courts will have their say.

As to Obama's disappointed supporters, it is time that they acknowledge—as he and his administration have done—that the United States is at war with al Qaeda, and not merely engaged in some elaborate law-enforcement exercise. This war was not invented by George W. Bush as a means of increasing presidential power. It was brought to our shores by a determined and ruthless enemy that decided, long before September 11, to challenge the United States militarily in a concerted effort to drive American influence out of theMuslim world, and then ultimately to replace Western democracy as the prevailing global political and social system. That is the reality Obama discovered when he entered the Oval Office.

Messrs. Rivkin and Casey are Washington attorneys who served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. They frequently write on international and constitutional law matters.

David Rivkin responds with call for serious evaluation of FBI interrogation policy

Published on February 09, 2010 by Brent Baldwin (OfficialWire) WASHINGTON, D.C.

On the hot seat of MSNBC’s The Ed Show, former Justice Department official David Rivkin called Deputy National Security Advisor John Brennan “factually wrong” when insisting that senior members of Congress were aware that Miranda rights would be given so soon to terrorist suspect, Umar Farouk Abdulmutallab.

“It’s interesting that Mr. Brennan says that being in FBI custody is synonymous with being Mirandized,” said Rivkin, Senior Fellow at the Foundation for The Defense of Democracies and co-chair for the Center for Law & Counterterrorism.  Rivkin pointed to an organization within the FBI known as HIG (high-level interrogation group), formed early in the administration, that had previously announced it did not require Mirandizing a suspect.

“The notion [Republicans] could conceive the administration would be so foolish as to Mirandize him in 50 minutes is quite simply ludicrous. Of course they didn’t conceive of it. It would’ve been crazy!” Rivkin said.

The show segment from Feb. 8th began with a Meet The Press clip of Deputy National Security Advisor John Brennan explaining that he had briefed several senior members of Congress on the night of the Christmas attack who never expressed reservations about standard FBI procedure. Among those was Senate Minority Leader Mitch McConnell, now one of the loudest critics of the Obama administration’s handling of the brief interrogation.

Liberal host Ed Schultz tried to paint the entire Republican argument as “political posturing” and challenged Rivkin, saying he was pitting his credibility against the word of Brennan. But Rivkin remained adamant that officials would not have simply assumed Miranda rights were being given automatically. Rivkin also pointed out that there should be less blame cast by both sides and more attention to the underlying failures in common sense procedure.

“We’re talking about somebody who is interrogated for 50 minutes, that interrogation was interrupted and he is Mirandized. I don’t know of any serious interrogator who does not believe that we should have a go at him for several weeks,” Rivkin said.


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:

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

Copyright 2010 National Broadcasting Co. Inc. All Rights Reserved NBC News Transcripts SHOW: Saturday Today 7:00 AM EST NBC January 9, 2010 Saturday 1124 words Umar Abdulmutallab makes first court appearance; NBC terrorism analyst Roger Cressey discusses case AMY ROBACH, LESTER HOLT

PETE WILLIAMS

AMY ROBACH, co-host:

And we turn now to the attempted bombing of that US jetliner on Christmas Day. The suspect in the case made his first court appearance Friday in Detroit to formally face the charges against him. NBC's justice correspondent Pete Williams was there.

 

PETE WILLIAMS reporting:

US marshals escorted Umar Abdulmutallab in and out of the Detroit federal courthouse, surrounded by extra security, from a federal prison 45 miles away. He walked into the courtroom despite having what federal officials say are severe burns on his legs, caused when the explosive device caught fire in his lap on the plane. He told the judge he's taking pain pills, but his lawyer, a public defender, said he was clear-headed enough to follow the proceedings. In a barely audible voice, Abdulmutallab said he understood the charges and the maximum penalty. His lawyer entered a plea of not guilty for him.

Outside, several dozen members of Detroit's Muslim American community voiced their support for the prosecutors.

Ms. ZEINAB MOUGHNIA (Muslim American Demonstrator): I feel like it's so important for us Muslim Americans to send out the message that we do not condone terrorism, we do not support terrorism in any way, and terrorism is not a part of our religion whatsoever no matter what you may hear, no matter what terrorists may say.

 

WILLIAMS: But some former Justice Department officials say he shouldn't even be here, that he should have been declared an enemy combatant so that he could be questioned at length without a lawyer.

 

Mr. DAVID RIVKIN (Former Justice Department Official): It's fundamentally misleading to tell the American people that there's no compromise on our ability to get intelligence. Let's acknowledge that we're going to get intelligence not as expeditiously, not as fulsomely, by classifying him as a criminal suspect.

 

WILLIAMS: But an FBI official says Abdulmutallab, quote, "talked his head off." Administration officials say he stopped answering questions after about 30 hours of questioning, but before he asked for a lawyer. The deputy national security adviser told "Dateline NBC" that Abdulmutallab began talking the moment he was arrested.

 

Mr. DENIS McDONOUGH (Obama Advisor): That opportunity to press him very aggressively provided us very useful intelligence right out of the box.

 

WILLIAMS: Abdulmutallab's father was not here at the courthouse. He's the Nigerian banker who told the US in November he feared his son was becoming radicalized. But two lawyers said they were here, hired by the family to observe the proceedings. For TODAY, Pete Williams, NBC News, Detroit.

 

ROBACH: And for more on this case we're joined by NBC terrorism analyst Roger Cressey.

 

Roger, good morning.

 

Mr. ROGER CRESSEY (NBC Terrorism Analyst): Good morning, Amy.

 

ROBACH: And as we just heard in Pete's piece, it sounds like Abdulmutallab did give investigators some information, quite a bit of information, but can we trust that intelligence?

 

Mr. CRESSEY: Well, you can never trust what a suspect says standing alone. It has to be corroborated against other information. But Abdulmutallab told investigators that he was working through Yemen. That turned out to be right. And so he gave other information that the intelligence community was able to use. The issue is, with any type of interrogation, are you getting actionable, accurate information, and then how can you act upon it?

 

One point on the issue of treating him as a enemy combatant. There's no guarantee if you treat him as an enemy combatant you're going to get any further or any more accurate actionable intelligence than you would have the way he talked when he was first arrested.

 

ROBACH: The president's counterterrorism adviser said the government may offer Abdulmutallab some sort of plea deal. But given his role, perhaps, within al-Qaeda, his training in Yemen--he was willing to die--how likely or how willing would he be then to strike a plea deal with the government?

 

Mr. CRESSEY: It's tough to get in the head of a 23-year-old Nigerian who's about to face the rest of his life behind bars, but the argument here for a plea deal is, `You, Abdulmutallab, need to tell us more about how al-Qaeda in the Arabian Peninsula is operating right now, what their plans are, what other members of their network are out there,' so the US counterterrorism group can do a better job identifying and preventing future plots. If he doesn't have that information, then he's not going to get a plea deal and he's going away for the rest of his life.

 

ROBACH: It's interesting, Roger, this week we heard the president say and talk about the challenges of a lone recruit, someone like Abdulmutallab. That said, what exactly are the unique challenges of a suspect like this 23-year-old?

 

Mr. CRESSEY: Well, he was radicalized before he got to Yemen. Clearly his time in London played a role in that. And what the intelligence community, both ours as well as our allies', have to do is figure out how to identify these type of people earlier in the process before they operationalize. It's a tremendous challenge because someone can harbor anti-American views, but that doesn't mean they're going to become a terrorist. Someone can go to Yemen to study Sharia law; that doesn't men they're going to work with AQAP. So separating that wheat and chaff and identifying the key pieces of data that points to a person being a potential concern, that's the real challenge, and it's very tough.

 

ROBACH: Right, and the president outlined some steps. He felt like the government needed to take better steps to connect the dots, to identify someone like Abdulmutallab. What do you make of the president's proposals in terms of trying to prevent future cases?

 

Mr. CRESSEY: Well, one thing, Amy, it's remarkable two weeks after the attempted attack there's now a report out where the administration is very honest with the American people about what went wrong. And it's important to remember this wasn't a failure of information sharing. The information was in the system. It was a failure to look for the proper information. So there's two things have to happen. First, we got to do a better job identifying resources to ensure we're looking strategically. Al-Qaeda in Yemen was always a threat. The United States understood it. They never thought that they could attack the United--the US homeland. Second issue is you got to use better technology. You can't rely just on human analysts to process this enormous volume of counterterrorism data. So it's human policy, but it's also technology to combine together to give us a better chance to prevent the next attack.

 

ROBACH: All right, Roger Cressey. Thanks so much.

 

Mr. CRESSEY: You bet, Amy.

 

ROBACH: And now here's Lester.

 

LESTER HOLT, co-host:

 

All right, Amy.