America has been introduced to the country of Yemen this past week. That introduction was a result of the failed bombing attempt on a Delta flight from Amsterdam to Detroit when 23 year old Umar Farouk Abdulmutallab was unable to ignite the explosives in his underwear. More precisely, the introduction to Yemen was the result of information Mr. Abdulmutallab provided to authorities upon his arrest and before he "lawyered up."
Republicans have criticized the President for allowing Mr. Abdulmutallab to get a lawyer so quickly. They employ the phrase "lawyer up" as if it were itself an act of terror when, of course, the right to a lawyer is one of the proudest hallmarks of our civilization. Yes, it was appropriate for the CIA or FBI to have a first crack at Mr. Abdulmutallab. And, yes, it was appropriate to provide him with an attorney at some point. We can debate at what point that hand-off from the intelligence services to the criminal prosecution should be made, and that debate should happen behind the closed doors of a congressional oversight committee. We certainly do not want future terrorists to know for certain at what point the hand-off occurs, as the hand-off, or promise of it, may be useful to the interrogator himself.
This is what the President’s critics fail to realize. We are not "caving" in the war against Islamic extremists by sticking to our own standards of civilized behavior, standards that require all criminals receive a defense attorney. Indeed, our ability to stick to our standards of civilization is a powerful propaganda tool in our effort to win the war against extremists. The decision to provide Mr. Abdulmutallab a lawyer is the reverse of the Bush administration decision to send suspected terrorists into legal limbo at Guantanamo: Gitmo has been a boon for extremist propaganda and, in the event, it did not necessarily serve to protect Americans. Mr. Abdulmutallab’s masters in Yemen were formerly imprisoned there and were released by the Bush-Cheney administration. If we had caught them, rather than their stooge, we might have delayed the arrival of counsel a bit longer.
The point is that we don’t know what the substantive consequences were of the decision to provide Mr. Abdulmutallab with an attorney at the particular time the provision was made. The Republicans are grabbing onto the decision as a symbol of what they think is the Obama administration’s softness on terror. But, it may be that the Obama team is merely smarter about confronting terror. And, it is certainly the case that the GOP critics are mistaking the forest for the trees in the way they often mistake the role and import of symbols. The current criticism reminds me of the way conservatives denounce flag-burning. They insist that no one should be allowed to burn the American flag. But, you can burn a flag but you can’t burn the flag, as the New Yorker’s Rick Hertzberg once pointed out, just as you can burn a copy of the Constitution but you can’t burn the Constitution. Even if the original in the National Archives were consumed by flame, the Constitution would live so long as we Americans enjoy the right to free speech, to freedom of religion, and the right to a lawyer. For eight years, the Bush administration stomped on the Constitution.It is a comfort to America and the West, not to the terrorists, that we now have an administration that honors that Constitution. And, honoring that Constitution did not prevent us from finding out from Mr. Adbulmutallab that his bosses were in Yemen.
Readers wishing to clear their minds of this drivel can read Charles Krauthammer's 1/1/10 Washington Post column ''A Terrorist War Obama has Denied''. (http://www.washingtonpost.com/wp-dyn/content/article/2009/12/31/AR2009123101744.html)
By the way, MSW, America was ''introduced'' to Yemen by the bombing of the USS Cole. Though of course, what provoked the attack on the Cole as well as the 1993 attack on the World Trade Center, and the attacks U.S. embassies in Kenya and Tanzania, and the 9/11 attacks are mysteries since Guantanamo was not yet in use as a terrorist prison.
The shoe bomber incident occurred 3 months after 9/11. The US was still in the mindset of having the FBI investigate terrorist acts and having the DOJ prosecute terrorist acts as mere crimes - see the 1993 WTC bombing, the embassy bombings and the USS Cole bombing. As a result of 9/11 the Bush administration was in the process of formulating new policies - to treat terrorism as an act of war - much to the chagrin of some liberals, but they had not fully gone into effect. Since the shoe bomber (Richard Reid) was a British citizen there was no question at the time but that he had to be treated as a criminal defendant. However, the Bush Administration and the public soon became aware that the failures of the intelligence community to share information and the concern with standard limitations on investigation tools in order to avoid application of the exclusionary rule at trial led a de-emphasis on obtaining intelligence. Obviously the Bush Administration changed that with the creation of the terrorist prison at Guantanamo.
One of the criticisms of the Bush Administration's use of harsh interrogation techniques at Gitmo was that they were far too harsh and unnecessary because intelligent interrogation methods over a moderate or long period of time would be more likely to result in the disclosure by terrorist of valid information than would harsh treatment. (Bush administration officials rejected that criticism on the grounds that they did not have the luxury of time, that top Al Queda officials were well trained, and the information obtained as a result of harsh treatment was in fact valid and - because it was obtained in timely fashion - saved lives.)
Now, with the underwear bomber it appears the Obama Administration has learned nothing. Whether it sends the right message to try the bomber in federal court is a separate question from whether the bomber should have been charged immediately and allowed to ''lawyer-up''. There was no need to charge him immediately. He is a non-citizen and was engaged in an act of war on behalf of a foreign entity. He should now be in military custody and subject to intense interrogation - which, as noted above, critics of the Bush Administration have claimed is the preferred method of obtaining information from terrorists. Eventually he could be prosecuted in federal court if, for whatever reason, that came to be seem as appropriate. Of course, his statements to interrogators could not be used against him at trial. But so what? The government already has the evidence it needs. But instead of subjecting the bomber to lengthy interrogation to obtain as much information as possible - information that may help prevent future planned attacks on other means of transportation, as Al Queda has done in the past and threatened again - we have National Security Advisor Brennan saying that we may be able to get some information from the bomber after playing ''let's make a deal''. Pathetic.