Attorney General Eric Holder said Wednesday he made the decision to charge the Christmas Day terror suspect in civilian court rather than the military system, with no objection from all the other relevant departments of the government.
In a letter to Senate Republican Leader Mitch McConnell (PDF), the attorney general wrote that the FBI told its partners in the intelligence community on Christmas Day and again the next day that Umar Farouk Abdulmutallab would be charged criminally.
Holder said that the possibility of detaining Abdulmutallab in the U.S. military system under the law of war was explicitly discussed in the days following the arrest, including at a Jan. 5 meeting that included President Barack Obama and senior members of the national security team.
"No agency supported the use of law of war detention for Abdulmutallab, and no agency has since advised the Department of Justice that an alternative course of action should have been, or should now be, pursued," the attorney general wrote.
He added that the decision to charge Abdulmutallab in federal court is "fully consistent with the long-established and publicly known policies and practices of the Department of Justice, the FBI, and the United States Government as a whole, as implemented for many years by Administrations of both Parties."
"Those policies and practices, which were not criticized when employed by previous Administrations, have been and remain extremely effective in protecting national security," Holder wrote.
Holder's letter was the latest volley in a vigorous counterattack by the Obama administration to Republican charges that the arrest and FBI interrogation of the Detroit suspect was a mistake that cost a chance to learn key information.
The letter was also sent to 10 other Republican senators who had joined McConnell in objecting to Holder's handling of the case: Sens. Kit Bond, Tom Coburn, Susan Collins, John Cornyn, Lindsey Graham, Chuck Grassley, Orrin Hatch, Jon Kyl, John McCain and Jeff Sessions.
Top government officials revealed Tuesday night that Abdulmutallaband may be providing useful information to authorities about al Qaeda.
FBI agents flew to Nigeria in the days following the failed bombing attempt and got Abdulmutallab's family to help them persuade him to cooperate.
Two FBI agents flew to Nigeria in early January and contacted family members of Abdulmutallab. The agents then flew back to the United States with the family members on Jan. 17 and they helped gain the cooperation of Abdulmutallab, CBS News White House correspondent Chip Reid reports. The officials would not say which family members have been involved, specifically declining to say whether his father is involved. He also declined to say if the family is still in the U.S.
The official said giving Abdulmutallab his Miranda rights has in no way interfered with gaining his cooperation. In fact, the official argues, it was the unanimous judgment of intelligence and law enforcement professionals that Abdulmutallab was more likely to cooperate with civilian investigators than with military ones.
The Obama administration has drawn criticism for its handling of the Christmas Day attack. Republicans say it showed terrorist suspects can't be treated like criminals.
However, the Bush administration tried hundreds terror suspects in criminal court - including high-profile cases like "shoe bomber" Richard Reid and 9/11 plotter Zacarias Moussaou - and drew little of the same criticism. It secured convictions in 91 percent of those cases.
"Since the September 11, 2001 attacks, the practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States," Holder writes in the letter. "In keeping with this policy, the Bush Administration used the criminal justice system to convict more than 300 individuals on terrorism-related charges. "
Holder also addresses a frequent Republican objection - increasingly heard from top Democrats as well - that terror suspects should not be read and granted Miranda rights when detained. He lists numerous terror suspects who were convicted and/or provided key intelligence to federal authorities after being granted Miranda rights.
He notes that Richard Reid was advised of those rights less than five minutes after being removed from the airplane and reminded of them four times in a 48 hour periods. Reid is now serving a life sentence in federal prison.
FBI Director Robert Mueller testified Tuesday that FBI agents questioned Abdulmutallab until he entered surgery, and that the suspect was not advised of his Miranda right to remain silent until after he emerged from surgery. A federal law enforcement official, requesting anonymity to discuss an ongoing case, said the suspect made clear upon emerging from surgery he was going to stop talking and then was given his Miranda warning.
"Neither advising Abdulmutallab of his Miranda rights nor granting him access to counsel prevents us from obtaining intelligence from him," wrote Holder "On the contrary, history shows that the federal justice system is an extremely effective tool for gathering intelligence."
In fact, Holder argues, it is the very course that administration critics advocate - holding terror suspects under the law of war and without the rights afforded to criminal defendants - that has been most problematic in the past.
The 2002 arrest and military detention of Jose Padilla - a U.S. citizen living in Chicago - led to a protracted legal battle and a circuit court ruling that he could not be held under the law of war. A separate circuit court reached the same conclusion about Ali Saleh
Kahlah Al-Marri, who was indicted on federal criminal charges unrelated to terrorism but later transferred to military custody. Both men were ultimately transferred back to the criminal system and convicted.
Abdulmutallab has been providing useful intelligence that FBI agents working with the intelligence community have been following up on in the United States and overseas, an official who spoke to the Associated Press said Tuesday night.
No one has said what, specifically, Abdulmutallab is telling officials - a likely sign that he has made a plea agreement with the government.