In a five-page, single-spaced letter today to Senate Republicans, Holder took full responsibility for the decision to charge Umar Farouk Abdulmutallab with federal crimes. And he took full aim at critics who've argued it cost the United States valuable intelligence because the young al Qaeda operative promptly lawyered up and stopped talking.
In the letter, Holder adamantly defended his decision—and himself. "As Attorney General, I am guided not by partisanship nor political considerations," he said, but by a commitment to "protect the American people, defeat our enemies and ensure the rule of law." He managed to set himself up as a shining knight of principle and a guardian of the law, while calling into questions the motives of anyone who deigned to criticize him.
Holder said a contrary approach ignoring the role of the criminal justice system in fighting terrorism would be "foolish" and "dangerous." But that's exactly what critics have called the decision to stop questioning Abdulmutallab.
The decision was made in chaos on Christmas Day, after FBI agents questioned the severely wounded young Nigerian for a mere 50 minutes before he was rushed into surgery. There was no consultation with top intelligence officials, and the director of National Intelligence Dennis Blair, who was out of the loop, questioned in Senate testimony whether it was the right call.
The former CIA Director, Gen. Michael Hayden, contended out in a recent Washington Post editorial that the decision cost valuable intelligence. And while the White House last night was heralding the fact that Abdulmutallab has now started talking again—five weeks after he tried to blow up the airliner--those critics say the five weeks of silence came at a high cost, with real consequences.
Although he still may have some intelligence to offer, the five-week delay in questioning him diminished it, they say, because it gave al Qaeda time to adjust to whatever he revealed—changing safe houses, closing down email accounts, adopting new pseudonyms.
That's why questions were raised immediately when agents read Abdulmutallab his rights and Holder opted to charge him with a crime like an ordinary murder suspect, instead of detaining him in a military process, with continued interrogations by intelligence experts.
But last night and today, administration officials now are insisting those questions can and should be put to rest. Their argument? It's the law, stupid. The law probably wouldn't let us do it.
Aware of needed damage control, the White House and Attorney General are now taking the position that, legally, it was "highly questionable" whether they could have detained the terror suspect and continued to question him without a lawyer, even if they wanted to. Holder, in his letter to the Senators, said that legal authority "is far from clear."
Many legal experts, however, agree the law is, in fact, pretty clear: It's not that highly questionable at all. Under existing law, the Obama Administration had the authority to detain and question Abdulmutallab more extensively. And it chose not to.
If the Obama Administration wants to make a policy decision to treat al Qaeda operatives as common criminals and not as enemy combatants, that's a position it could take—and some advocate they should. They've argued that giving rights to these terrorists, for example, will enhance our standing in the world and deter future terrorist acts.
But those are policy arguments and policy decisions, and they have consequences. They should stand or fall on the merits. They aren't required by law.
To argue, instead, that the law essentially tied has their hands—that the law all but required this course of action in Detroit--ignores the cases that have been decided.
And there's a danger in that. Whether or not the Obama Administration made the right call on Christmas Day, it's a problem to see top officials now make incomplete or misleading legal arguments to justify their decision after the fact.
Insisting it was "highly questionable" under the law to detain suspects like Abdulmutallab reminds me of the economic theory of path dependence. Decisions in the future could well be limited by what's decided today. You get on a path, and you can't change course.
Today's legal argument that it was "far from clear" they could continue interrogating Abudulmutallab, even if they wanted to, could set this administration down a fixed path on the most pressing issues facing this nation, based in no small measure on old-fashioned damage control.
There is clear legal basis to detain al Qaeda combatants. Congress expressly authorized force against "nations, organizations, or persons" who carried out the 9/11 attacks, and two Presidents have made it clear this is a war. Federal courts have either endorsed or not questioned the government's authority to detain al Qaeda members and actual combatants in wartime.
As Gregory Katsas, an assistant attorney general in the Bush Administration pointed out to me, Abdulmutallab is an actual combatant. He's not some money guy or a facilitator. He tried to blow up a plane with nearly 300 people on board. And he's not a U.S. citizen. Sure, he's being held in this country, Katsas notes, but so were three enemy combatants during the Bush Administration—Yaser Esam Hamdi, Jose Padilla and Ali Salah Al Marri--and courts have said those detentions were lawful.
And while it's true that a New York-based federal appeals court said the government had no authority to detain Padilla, a U.S. citizen arrested in the United States, the Supreme Court specifically rejected that rationale in another case involving Hamdi. A separate, Richmond-based federal appeals court later upheld his detention in the military process.
Bottom line: the government prevailed in every case involving enemy combatants being held in this country.
And while it's true, as Holder points out, that a federal judge could someday say that a non-U.S. citizen like Abdulmutallab had a right to a lawyer, even in the military process, the Supreme Court has never ruled those rights kick in immediately or at the same time as in the criminal process. At a minimum, they could have gotten days longer to question him by putting him on the military track.
One of the most fascinating undercurrents in this entire debate is seeing White House officials defend themselves by saying the Bush Administration decided to Mirandize attempted shoe bomber Richard Reid and try him in a criminal court. I didn't realize the Obama Administration had decided to adopt wholesale Bush's policies, yet they're arguing that since Bush did it with Reid, it's ok. But has anyone ever thought maybe Bush was wrong? He certainly wasn't arguing, as the Obama Administration is, that it was legally questionable to detain and extensively interrogate terror suspects without lawyers present.
"Quite a turnabout," Katsas said, "in rhetorical strategy."
And that's before you get to the real differences between Reid, whom many believe was more of a lone actor, and Abdulmutallab, who was an operative trained with and directed by al Qaeda abroad. Abdulmutallab presumably would have valuable, actionable intelligence—about his handlers, their locale, and his own individualized training--if interrogators had moved quickly to extensively question him before al Qaeda readjusted.
But that wasn't the path this administration took with Abdulmutallab. And the legal arguments top officials now are making to justify it suggest there won't be a course correction anytime soon.