Our guest blogger is Ken Gude, Associate Director of the International Rights and Responsibility Program at the Center for American Progress Action Fund.
We are in day 47 of the conservative exploitation of a failed terrorist attack for partisan political purposes. The good news is that the public doesn’t appear to be buying it: A poll out today shows public support for President Obama’s handling of terrorism has increased since November. The support is merited because the Obama administration’s decisions are producing results, while the favored conservative alternative already failed when tried before.
Today’s installment is a diatribe from former Bush administration officials Dana Perino and Bill Bruck against John Brennan, which contains a number of misrepresentations and outright lies. Bear with me, it’s going to take a while to go through the whole thing.
First, Perino and Bruck attempt one of my favorite conservative attacks, going after the Obama administration for aiding the enemy by informing the public that the underwear bomber, Umar Farouk Abdulmutallab, is cooperating:
“The administration has spent the past two weeks telling anyone who will listen, including our enemies overseas (whom Abdulmutallab apparently is flipping on), that Abdulmutallab’s family convinced him to start cooperating six weeks after he was Mirandized.”
So, after weeks of partisan attacks by conservatives over its handling of Abdulmutallab specifically designed to scare the American people, when the Obama administration seeks to reassure the public that its chosen path is producing results, that too becomes grounds for more attacks. Essentially, Perino and Bruck are saying, “Its fine for us to attack you but you can’t defend yourself.” Right.
And notice the clumsy lie about when Abdulmutallab began cooperating:
“Abdulmutallab’s family convinced him to start cooperating six weeks after he was Mirandized.”
We know that Abdulmutallab’s family was instrumental in securing his complete cooperation with authorities beginning on January 17. That information was made public on February 2. So, the public learned of his cooperation six weeks after the attack but he had been in full cooperation with authorities for more than two weeks at that time. Perino and Bruck repeat this lie throughout the piece.
Perino and Bruck reveal their confusion about what it means to secure the cooperation from an individual being interrogated:
“Indeed, this is when Brennan himself writes that ‘[t]he most important breakthrough occurred.’ How, then, could Abdulmutallab have been ‘thoroughly interrogated’ immediately after he was arrested if ‘the most important breakthrough’ came six weeks later, and only after his family intervened? This glaring contradiction goes unaddressed.”
It’s not addressed because there is no contradiction. As soon as he was detained, and before he went into surgery for injuries he sustained during the failed attack, Abdulmutallab was questioned and apparently gave his interrogators useful information. When Abdulmutallab emerged from surgery he decided to stop cooperating and asked for a lawyer. He was then Mirandized. The breakthrough came when FBI agents gained the assistance of his family to persuade him to cooperate fully with the government. At least since mid-January, Abdulmutallab has been providing useful information that has already resulted in one terrorist cell being rolled up.
Perino and Bruck then suggest that Brennan was lying when he claimed that senior officials in the intelligence community and military were discussing the case before Abdulmutallab was Mirandized after he came out of surgery:
“Either the heads of the intelligence community lied to Congress several weeks ago when they all testified, under oath, they were not consulted, or Brennan is fibbing now.”
The “lack of consultation” canard has been a conservative favorite for weeks now. It rests on a faulty presumption, that Mirandzing Abdulmutallab was the cause of his decision to stop cooperating. We know that is false. We also know that not only did officials across the intelligence, military, and law enforcement communities discuss the case at an early stage, but that Republican Congressional leaders were also updated on Christmas night, and none of them raised any objections. A subsequent meeting of the National Security Council, including all of the principals, discussed in detail the issue of whether to proceed with criminal charges or chose military detention, and it was unanimously decided to follow the criminal route.
Perino and Bruck blast Brennan for stating the simple truth, that Mirandizing individuals seized in the United States has never before been considered controversial and is the law and longstanding policy of administrations of either party:
“This is only the policy if the FBI is placed in charge of the arrest and interrogation. This is circular reasoning at its best — we Mirandized Abdulmutallab because we had to under FBI policy because we called in the FBI. Hmm. We would hope for better from the White House’s top expert on counterterrorism.”
Its worth noting here just how radical the idea is that Perino and Bruck are proposing – that the U.S. military be sent into a hospital in Detroit, Michigan to immediately take over detention of Abdulmutallab. It has literally never happened before. The two individuals that were held as enemy combatants, Jose Padilla and Ali Saleh al-Marri, were both originally detained by the FBI for long periods. Richard Ried and Zacarias Moussaoui were never placed in military custody. Neither were Ramzi Yousef, the Blind Sheik, or the hundreds of others international terrorists convicted in U.S. courts.
Perino and Bruck next accuse Brennan of not understanding the law, but it is Perino and Bruck who clearly don’t understand the point Brennan was making when he accurately said “It’s naive to think that transferring Abdulmutallab to military custody would have produced an outpouring of information.” Perino and Bruck:
“Brennan just doesn’t understand the law. A suspect held as an enemy combatant in military custody has no right to be Mirandized and no right to remain silent. None whatsoever.”
Brennan was pointing out the fundamental flaw in the entire conservative attack on the Obama administration’s handling of Abdulmutallab: We’ve tried it their way and it didn’t work. Neither Padilla nor al-Marri ever cooperated with their interrogators, never produced the kind of intelligence information that has already been gleaned from Abdulmutallab. Conservatives are banking on the general assumption that military detention is always better or tougher, but the record tells the opposite story.
Perino and Bruck then casually throw in this demonstrably false statement:
“Congress and the Supreme Court have authorized a system for detaining and trying enemy combatants outside the criminal system.”
The Supreme Court has not ruled on the lawfulness of Congress’ version of the military commissions. Nor has it ruled on the legality of the kind of military detention without charge that Perino and Bruck are advocating. The Supreme Court struck down the first iteration of the military commissions. It has allowed the current form to proceed to the trial phase, preferring to handle questions of legality through the appeal process, which is ongoing. And while the Court has approved military detention of individuals captured on the battlefield in a zone of active combat, it has never authorized the military detention of an individual seized in the United States.
Perino and Bruck then make a puzzling claim:
“We’re confident that the government’s lawyers would have had no trouble convincing a judge that Abdulmutallab — a man caught trying to ignite a bomb in his underwear while on a plane, who then said before he was Mirandized that he’s a member of al Qaeda — is an enemy of the United States, not a common criminal.”
I have no idea why they’re so confident because government lawyers have had a great deal of trouble convincing judges that individuals seized in the United States should be held in military detention. The Second Circuit Court of Appeals ruled that Padilla could not be held as an enemy combatant. The Fourth Circuit Court of Appeals originally ruled that al-Marri could not be held as an enemy combatant before the full panel ruled 5-4 that he could. The Supreme Court has never issued an opinion on the ultimate legality of such detention. The government could have even more trouble with this case because of Richard Reid, a nearly identical case that the Bush administration prosecuted in criminal courts.
Perino and Bruck then ludicrously blame “left-wing lawyers” for the military commissions’ shockingly low number of convictions:
“Brennan is correct that there have been only three convictions in the military commission system — but that’s mainly because left-wing lawyers, including many who now populate the highest levels of the Obama-Holder Justice Department, filed lawsuit after lawsuit during the Bush years challenging the system on behalf of the detainees held at Guantanamo.”
The military commissions have such a terrible record on convictions because they were so poorly conceived that they were ruled unconstitutional by the Supreme Court. In 2006, the Court struck down the military commissions and sent the Bush administration back to the drawing board. The next incarnation wasn’t much better, and took two more years to get off the ground. Congress has again tried to rectify more errors in the commissions, but many flaws still persist.
Next comes a new lie that I hadn’t heard before, that the number of terrorism convictions in criminal courts is “bogus”:
“The ‘hundreds’ of convictions of ‘terrorists’ is a bogus number that vastly inflates the real numbers by including people convicted of crimes like identity theft and immigration fraud.”
This really is pathetic. Study after study has shown that, yes, hundreds of terrorists have been convicted in criminal courts. One looked at cases just from 2001 to 2009 and found 195 convictions. The Justice Department puts the current number at more than 300. President George W. Bush said in 2003 “more than 260 suspected terrorists have been charged in the United States courts, [and] more than 140 have already been convicted.”
But let’s be extremely generous to Perino and Bruck and just eliminate 90 percent of these convictions as “bogus.” That still leaves at least 30, or ten times the number of convictions as in military commissions. However you slice the numbers, the record of criminal courts is impressive and the record of military commissions is embarrassing.
In a critique that deserves praise for its audacious mendacity, they somehow claim that it’s the criminal system that is illegitimate:
“[U]sing civilian courts to hold show trials of KSM and others they believe they’ve got the goods on, while saving military commissions (with their somewhat lower evidentiary standards) for the tougher cases.”
This just doesn’t make any sense. A civilian trial of KSM will be a “show trial” but it’s the military commissions “with their somewhat lower evidentiary standards” that are the more legitimate forum? I understand that there is a bunch of hyperventilating on the right about tainting the jury pool for a KSM trial, but that’s just bunk. Federal judges take great pride in the fairness of the trials under their supervision and they deal with obviously guilty defendants like KSM all the time. It’s really annoying that conservatives have suddenly found their voice about “show trials” after they spent the last eight years trying to construct precisely that at Guantanamo.
I’m sure as they were writing their next lie they were smiling, because it’s just impossible to say this with a straight face:
“No one has argued that ‘counterterrorism professionals’ are not up to the task.”
Leaving aside that the entire point of their column is to say that the president’s top counterterrorism adviser is not up to the task, how can they overlook Senate Minority Leader Mitch McConnell’s irresponsible attack on the FBI, in which McConnell said that “Larry Ling would have a more thorough interrogation of one of his [guests] than the Christmas bomber had by the Justice Department.”
Perino and Bruck repeat another lie in the closing paragraph:
“The law is clear that a foreign terrorist affiliated with al-Qaeda who is captured on U.S. soil may be lawfully held as an enemy combatant.”
Again, the law is anything but clear. The Padilla and al-Marri cases never reached the Supreme Court and the differing Circuit Court opinions lack anything resembling clarity.
Perino and Bruck’s final error is one that simply has not received enough scrutiny throughout this debate:
“The point of interrogation, and holding Abdulmutallab even temporarily as an enemy combatant, is to get information to stop future attacks.”
The point of interrogation is to get information to stop future attacks, but holding Abdulmutallab as an enemy combatant for any period of time would likely have irreparably harmed our ability to obtain such information. When it was tried before, with Padilla and al-Marri, it produced no information. Padilla’s extended isolation severely damaged his mental capacity to the point that he is unlikely ever to be a reliable intelligence source.
Interrogation experts determined that Abdulmutallab would respond very poorly to anyone in a military uniform interrogating. Knowing that and looking at the past record, the Obama administration decided to proceed in the criminal justice system precisely because it gave them the best chance to obtain intelligence information that can prevent future terrorist attacks. And it has worked. Abdulmutallab is cooperating and is providing information that is preventing future terrorist attacks.
Brennan’s frustration is understandable. Politicians, former speechwriters and press secretaries get endless airtime to criticize and question the judgment of national security and counterterrorism professionals. Political attacks on the president and his national security team get lots of attention, while little scrutiny is given to the veracity of their attacks, and less still to the alternatives being proposed. But the bottom line is we experimented with doing it “their way” before and it was a spectacular failure, while the Obama administration’s decision to use the proven and effective criminal justice system has produced results.