By David B. Rivkin, Jr. and Lee A. Casey [Posted from The Wall Street Journal May 26, 2010]

Sixty-eight senators have sent a letter to President Obama urging U.S. ratification of the Ottawa Convention. The 10-year-old treaty, banning the production and use of land mines, has been accepted by over 150 countries, including most of our allies.

The U.S., however, should not join this august club. Land mines remain a critical part of America's 21st century security architecture.

The demilitarized zone (DMZ) between North and South Korea contains massive minefields. They guard against surprise attacks by numerically superior North Korean infantry who are poised 20 miles from the outskirts of Seoul.

Deterring nuclear-armed and consistently erratic North Korea (its most recent provocation was sinking a South Korean warship) is a challenge requiring all the tools in the U.S. military arsenal. Ratifying the Ottawa Convention means dismantling the DMZ minefields. That means an American president might face the unpalatable choice of watching South Korea (and the U.S. forces stationed there) overrun—or using nuclear weapons.

Although the U.S. has chosen not to deploy land mines in post 9/11 wars, they can save the lives of American soldiers. Our bases in Iraq and Afghanistan have regularly come under insurgent attacks, including on the morning of Oct. 3, 2009, when hundreds of Taliban penetrated the defense perimeter of Combat Outpost Keating, an isolated U.S. camp in northeastern Afghanistan. Outnumbered six to one, the G.I.s fought a desperate action with small arms. U.S. aircraft arrived, but only after eight Americans (of 53) were killed. Had the camp been surrounded with a minefield, the results would have been very different.

Outside Korea, land mines on a grand scale may no longer be an essential part of the U.S. arsenal. But ratifying the Ottawa Convention transforms a policy choice into a legal obligation that, notably, neither Russia nor China (or Iran, North Korea and several other rogue states) have accepted. Unilateral disarmament here is neither smart arms control nor good foreign policy.

Land mines do present important humanitarian concerns. Once deployed, they can remain active for decades, and civilians are regularly injured or killed by these weapons long after a conflict has ended. This is a particularly acute problem in the developing world, where many belligerents never bothered to mark or clear the affected areas.

But the newest generation of American "smart" mines can be remotely armed and disarmed, or programmed to blow themselves up after a given time. These weapons are no more or less inhumane than other types of military hardware.

While some smart mines can be expected to malfunction and remain armed, the same is true of all unexploded ordinance, including aircraft-delivered bombs and artillery rounds. Properly used, land mines are not only an effective weapons system, but their limited range can produce far less unintended damage to civilians than, for example, a heavy artillery barrage or aerial bombing.

The treaty, however, would ban all land mines, stupid or smart. In truth, most of its proponents are more interested in reworking the entire legal regime governing warfare than they are in making any particular type of weapon more humane.

Traditionally, the laws of war accommodated military imperatives, imposing only the most basic of restraints. This was in recognition that a more restrictive code would not likely check nations engaged in a life or death struggle. As the realities of war have receded for most developed countries, progressives have worked to transform the norms applicable to armed conflict into something akin to a code governing domestic police functions.

The Ottawa Convention is part and parcel of this process, and the only real justification for U.S. accession to this treaty is a bow to international political correctness. That is what the Senate letter meant by urging the president to reconsider the U.S. position as consistent with his "commitment to reaffirm U.S. leadership in solving global problems."

That type of symbolism is just not a good enough reason to give up a weapon that can protect American forces and assist them in accomplishing their missions.

Messrs. Rivkin and Casey, Washington, D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.

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.

From Fox & Friends, original airdate: 2/6/10

Was it proper for them to be mirandizing this guy in the first place?

David Rivkin: Utterly improper and Clayton forget about the critics. The justice dept senior official, U.S. attorney for the Southern District of New York [Preet Bharara] on Dec. 18 argues in a filing that its essential to treat a person like Ghailani or Abdumuttalab as intelligence assets, with protracted interrogations, psychological dominance, to illicit ever bit of intelligence information back and forth—not 15 minutes.
Remember he’s at his most vulnerable right after his capture. This was a huge mistake.

We seem to have gotten a lot of information from this guy.

Of course. But we didn’t get this information in a timely fashion. So intelligence got stale. And just because we’re getting some intelligence stream out of this guy doesn’t mean we couldn’t have gotten more.
My point is, don’t listen to me, listen to Mr. Bharara, U.S. Attorney for the Southern District of New York, who wrote this filing up to consult the intelligence community that espouses the virtue of treating somebody as an intelligence asset. Forget about where he’s going to be tried eventually, that’s a different debate. We could’ve treated him as an enemy combatant, interrogated him humanely for several months, got everything out of him and then made a decision whether we want to put him in a criminal justice system.…. We got some information out of him, we could’ve gotten more. There’s no doubt about that.





From THE ED SHOW on MSNBC original airdate: 2/8/10

Video opening of footage of top counter terrorism chief John Brennan explaining the night of Detroit bombing.

Ed: Why the Republican criticism so late when they knew the day it took place what was going on?

Rivkin: First of all, they didn’t. It’s interesting that Mr. Brennan says that being in FBI custody is synonymous with being Mirandized. What’s interesting is at the beginning of this administration they announced the creation of something called HIG, high interrogation group that was centered in the FBI. They specifically said it did not mean people would be invariably Mirandized. So Brennan is just factually wrong. Let me just point out isn’t it kind of silly to be talking about, gee, why didn’t the other side complain instead of looking at the underlying substance of this.
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.

Well, what you’re saying may be true. But no Republican at the time had any objection for weeks on end on this issue?

Ed, I just explained that they did not know when he was going to be Mirandized.

Well you’re assuming that. You’re putting your credibility against Mr. Brennan who says they were told.

No, Mr. Brennan said that Abdulmutallab was in FBI custody and that invariably meant he would be Mirandized …. I’m telling you when the administration eye-level announcement, when they created HIG, specifically said it did not mean that people would get Mirandized. So unless they could read Mr. Brennan’s mind … The notion they [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!



From Fox and Friends, original airdate:  2/11/10

Host: Supreme Court said California is different; they do have, under the Constitution there, a right to free speech in parts of the mall subject to reasonable regulation. So wasn’t the pastor’s first amendment right violated?

David Rivkin: I think it’s an excellent case as you correctly point out under the California Constitution; it’s broader in scope than the federal Constitution. And the gist of it would be this: the regulations the mall put in place were overly broad and they were enforced in an arbitrary fashion. Remember he did not carry placards, he did not try to organize a demonstration which is the kind of activity for which you would need a permit, he just had a conversation with free shoppers. And the notion that you need to get advance approval for that kind of interaction is quite frankly, silly.

The mall instituted two “reasonable” restrictions—a specific place in the mall, and the speaker has to submit an application four days in advance. Doesn’t that strike you, as a lawyer, as maybe potential censorship and unreasonable?

It is. And again it would be quite different if we were talking about a large city where you were going to organize a demonstration of many thousands. A number of cities don’t require that long of an advance period. So they manage it. 

But another thing to emphasize: these regulations only apply to conversations involving political and religious and other noncommercial speech. So it’s not just a question of reasonable regulations such as place. But it’s the content because it seems to single out religious and political content.

That may be what bothers people. It’s ok to strike up conversations about baseball but not God. There’s something that may be offensive to a great many people about that.

That is absolutely true. Let’s be clear: content regulation, or regulations that treat one type of speech different from another are almost always unconstitutional … For example in the context of getting a permit, let’s say: It was reasonable to get a permit for a large demonstration, but regulations said you don’t need to get one when talking about art, but if you’re talking about God you need a permit. That would be struck down without a doubt.

If I’m a business owner and someone is proselytizing in my store, I guess I have a legit business interest in preventing that from happening and thus the reasonableness of the designated area?

No, what you want to do is tailor restrictions as narrowly as possible. Concerning behavior in a store: If someone is driving customers away there would be nuisance and loitering approaches that would enable you to ask the person to leave, or cause them to be arrested. You don’t need to have regulations of this kind here. But nothing like that happened here.

Yes or no: Is the preacher going to win?

Well, it's in California State courts but I think he has an excellent change of winning. He obviously lost so far at the trial level, but things tend to get better results at the appeal level. I’m optimistic he would win.

 

Former Justice Department official cites secret legal filing that contradicts Obama approach to charging terrorists

Published on February 08, 2010 by Brent Baldwin (OfficialWire) WASHINGTON, D.C.

Attorney and former Justice Department official David Rivkin recently broke a story in his Wall Street Journal Op-Ed (“Tale of Two Terrorists”) regarding a secret filing made by the U.S. attorney for the Southern District of New York. The filing, made Dec. 18, basically argued that interrogating terrorists must come before criminal prosecution.

On Feb. 6, Rivkin appeared live on Fox and Friends alongside Matthew Alexander, a former senior interrogator in Iraq and author, to discuss the use of Miranda rights for accused terrorists. They specifically discussed Nigerian terrorist Umar Farouk Abdumuttalab, who promptly stopped talking after being read his rights. White House Press Secretary Robert Gibbs previously stated that the FBI obtained sufficient intelligence from a 50-minute interrogation of Abdumuttalab on Christmas Day before reading him his rights. Rivkin strongly disagrees with this approach.

“This was a huge mistake,” Rivkin said. “The Justice Department senior official, U.S. attorney Preet Bharara on Dec. 18 argues in a filing that its essential to treat a person like Abdumuttalab as an intelligence asset, with protracted interrogations to illicit every bit of intelligence information back and forth—and not just for 15  [or 50] minutes.”

Alexander countered that he would rather “deligitimize” terrorists by showing that our government upholds the word of the law; and also by treating terrorists as common criminals which would make them less effective as recruitment figures.

Rivkin said the most important means of self-defense involved timing and the overall intelligence information gathered from suspects at hand. “We didn’t get this information in a timely fashion. So intelligence got stale. And just because we’re getting some intelligence stream out of this guy doesn’t mean we couldn’t have gotten more,” Rivkin said, noting that he was still for humane treatment of prisoners.

“We could’ve treated him as an enemy combatant, interrogated him humanely for several months, got everything out of him and then made a decision about whether we want to put him in a criminal justice system,” Rivkin said. “We got some information out of him, but we could’ve gotten more. There’s no doubt about that.”

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:

 

Thursday, February 4, 2010

defenddemocracy.com
Escape from Guantanamo Bay

LEE A. CASEY & DAVID B. RIVKIN JR.

In truth, it will be far more difficult for the president to accept that his decision to close Guantanamo was wrong than it will be for him to explain a reversal of the policy. Here, the spin is easy - it has the unusual virtue of being true.

Obama has consistently maintained that he would not endanger American security in implementing his policies vis-à-vis al-Qaeda and its allies - he could hardly have done otherwise. That being the case, he need only acknowledge that one of the fundamental aspects of his Guantanamo closure policy - the ability to transfer most of the detainees either to their own countries or to third countries for "rehabilitation" - has not worked out as he had hoped and expected. The only way of closing Guantanamo and ensuring U.S. security interests would be to bring the entire detainee population into the United States, which he never planned to do. Therefore, Guantanamo will have to remain open pending further review of detainee repatriation opportunities and policies.

The problem, of course, is that Mr. Obama's base spent nearly eight years claiming that Guantanamo was inherently evil and that it was a stain on the nation's reputation attributable to George W. Bush's insatiable desire to concentrate power in his own hands regardless of individual rights.

The Bush policy was, of course, neither evil nor unlawful, and any "stain" has always been more imaginary than real. But too many of Bush's critics came to believe their own propaganda, and changing these beliefs will be hard. Nevertheless, the presidency is a hard job - so Mr. Obama had best get to it.

From Thoughtbasket.com:
The Christmas Bomber and Miranda
February 4, 2010 · 1 Comment

Bad timing for David Rivkin, who used Tuesday’s Wall Street Journal for one of his monthly attacks on some Obama policy. This time it was about the Christmas Day bomber, with Rivkin saying that not immediately sending the bomber into military detention was “an intelligence failure of massive proportions.” Too bad that the very next day, today, the exact same newspaper reported that the Christmas bomber is again talking to the FBI, providing “valuable intelligence.” This also damages the arguments of this guy and this woman. Look, there are valid reasons to say that terrorists should be viewed as wartime combatants rather than criminals. But claiming that we won’t get good information from terrorists held in the civilian legal system is clearly not a valid reason. And there is at least one good reason not to throw them in military brigs: it creates an appearance of the US being at war with Islam, which appearance seems to generate more terrorists. Finally, I would like to note, again, that George W. Bush also tried terrorists in civilian courts. For Republicans to now claim that this approach is terribly weak is to be hypocrites of the worst sort. Which is, I supposed, to be expected from politicians.
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http://www.defenddemocracy.com/index.php?option=com_displayevents&Itemid=362&eventid=230

From Inside the Beltway - Wash Times EDGING FORWARD

The plot to bomb a jetliner on Christmas Day has strengthened the assertion that there are scores of terrorists lying in wait for their opportunity to do harm to America. That means the argument over civil trial versus military tribunal for future perpetrators is bound to continue. Ergo, inquiring minds want to know: In which direction is the Obama administration likely to go with this?

"The disputes and acrimony over this kind of issue is not unique to this administration. Some people within it clearly 'get it.' " Others do not, and find themselves doing something for legal reasons, then for political reasons they must defend it," David Rivkin Jr. tells Inside the Beltway.

Mr. Rivkin served as a Justice Department and White House lawyer in the Reagan and George H.W. Bush administrations, and is a Washington, D.C., lawyer and co-chairman of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies.

"There is a phrase, 'Reality bites.' Well, reality is now biting the Obama administration. I think it is inevitable that they move more and more to a military embrace, towards the laws of war paradigm, a mainstay of the Bush administration that has largely been abandoned by this one," Mr. Rivkin says.
BLUE HUE
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Point of View radio talk show

http://www.blubrry.com/pointofview/640960/point-of-view-radio-talk-show-for-february-4-2010/

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

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.

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.