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I am going to break with the conventional wisdom – The underwear bomber should have been mirandized

January 30, 2010

I don’t particularly like coming to this conclusion but –

1. The crimes that Abdulmutallab is charged with are civil not military violations.
2. He committed his acts in American airspace and was arrested at a US airport.
3. He wasn’t actually engaged in combat so the unlawful combatant tag doesn’t fit.

It’s a shame and I wish I could come to another conclusion but if we are really a nation of laws and not men then in my opinion Abdulmutallab is entitled to the protections our justice system has to offer. If either item 1 or 2 were changed I would say throw him in Gitmo or Bagram and have at him.

-Update- My point here was that we as a people have allowed the rules to be set in such a way that I don’t really see any other way that the FBI(?) could have handled the initial interrogation. I don’t think that Abdulmutallab should be accorded these rights as a matter of principle. It’s a matter of the way I understand the law. I don’t like it, but if we allow our politicians to adopt stupid laws then we as a people have to live with the results.

-update 2- Getting as bad as Glenn Greenwald here but… In this morning’s Washington Post Michael Hayden makes the point I was aiming for in a much better fashion. I didn’t go into enough detail in my initial post, Hayden does.

While I am at it I am going to offer a suggestion on the Khalid Sheikh Muhammad trial. We (and by that I mean the idiots running the country) moved this into the civilian courts, as far as I am concerned we are stuck with that decision now. The constitution doesn’t let you shift jurisdictions just so the government can win. It’s too bad that the two constitutional law professors who are our president and vice-president didn’t understand that and thought they could have their cake and eat it too but ther you are. While we may be stuck with a civilian trial what congress should do is establish a special court that reports directly to the Supreme Court and base it in Gitmo. The FISA court could serve as a precedent. They could also write special rules of evidence and procedure to address the more issues of incriminating statements under duress etc.

That’s the way I would do it. I would also let our allies in Iraq and Afghanistan have representatives present to address their concerns.

14 Comments leave one →
  1. xbradtc permalink
    January 30, 2010 11:15 pm

    Lemme tell you why you are wrong:

    The crimes that Abdulmutallab is charged with are civil not military violations.

    His actions were undertaken on behalf of, if not part of, a known terrorist organization, which an authorization for the military use of force has been granted to the President by an act of Congress. That cedes jurisdiction to the military commission system.

    He committed his acts in American airspace and was arrested at a US airport.

    He committed his acts in Britain, Yemen, and the Netherlands, all in furtherance of his plot. The Imperial Japanese Navy attacked us in US airspace back in December of 1941- that doesn’t mean it was a criminal matter. Further, he was initially “taken into custody” in the US, and only later was he arrested. That the administration hasn’t formulated policies that give guidance on whether subjects such as this should be arrested, or detained for transfer to military authority shows a fundamental lack of seriousness of the current administration about the current threat.

    He wasn’t actually engaged in combat so the unlawful combatant tag doesn’t fit.

    Define combat. He was trying to destroy an airplane and kill people. Sounds like he thought he was in combat. Further, his purpose in NOT wearing a uniform was to enable him to further his mission, making him the equivalent under the conventions of a spy or saboteur, making him fit for summary execution under the laws of war. That we grant him any further opportunity to a courtroom, either military or civilian, is a gift we as a society bestow upon him, no something to which he is entitled.

    A foreign national, traveling to other nations, to meet with terrorist organizations, in order to plan, train for, and execute a terrorist attack on our country from an overseas location is pretty much the working definition of an unlawful combatant. By your argument, the 19 hijackers of 9/11 would be ineligible for military commissions.

  2. xbradtc permalink
    January 30, 2010 11:18 pm

    As to KSM, until he is enters a courtroom, I’m pretty sure we can move him out of that jurisdiction. INAL, but I think that’s right.

    • jenn1964 permalink*
      January 31, 2010 12:00 am

      You could be right. I am not a lawyer either. I do know that at some point in the process Jeopardy attaches and if the government does something like dismiss charges in federal court in order to try him in a military commission they will find that once again they have screwed the pooch. Jeopardy will have attached and KSM can’t be tried. If they follow my plan everyone gets to save a little face, and the security issue in NY is addressed.

  3. jenn1964 permalink*
    January 30, 2010 11:57 pm

    There is a difference between the attack by Japan and by Abdulmutullab. Pearl harbor was carried out by the IJN in uniform and in planes and ships bearing the markings of the IJN. That’s an act of war.

    Abdulmutallub was acting alone (although possibly at the behest of another. ) That’s an act of sabotage/terrorism/murder not combat. If he had walked up to a group of soldiers in iraq and detonated the bomb it would be combat.

    The AUMF gives the President the authority to use military force to prevent attacks, that’s it (by my reading anyway. the courts probably have different interpretations). In this case the attack had already been prevented and there was no effective military force to use against the bomber.

    All that kind of misses the point though, which is that we have now allowed ourselves to get into a position where the lawyers are running the show and not the counterterrorism professionals and this is what happens when you let lawyers be in charge. Given that in my opinion the people who mirandized him made the right decision.

  4. xbradtc permalink
    January 31, 2010 12:16 am

    Abdulmutallub was acting alone (although possibly at the behest of another. ) That’s an act of sabotage/terrorism/murder not combat. If he had walked up to a group of soldiers in iraq and detonated the bomb it would be combat.

    You’ve reached the point where you are now perversely, you offer the strongest argument for using military commissions. Why should forces that eschew the law of war not be tried for war crimes, and instead be accorded greater protections under the law than if they had complied with the rules of war? And he certainly wasn’t acting alone. He might have been the only one on the plane, but he didn’t gin this all up by himself.

    Had he attacked a military target in civilian clothing, he’d be liable as a saboteur. Had he attacked a civilian target in a uniform, he’d be liable as a war criminal. So why does the fact that he attacked a civilian target while in civilian clothing suddenly give him greater protections? It doesn’t.

    I won’t even say “the decision to try him in civilian court” because there was no decision made. It just happened. It was the default reaction of the FBI and an administration that is fundamentally unserious. Since there was no decision made, it is hard to argue after the fact that it was indeed the right one.

    Congress is at fault here as well. They have the power to decide jurisdiction of courts, and yet have not addressed the need for either a national security court, or outlined those instances when an individual or group, such as this, engage in acts that fall outside the realm of our civilian court system and should be remanded to some other jurisdiction, in this case, the military commission system.

    • jenn1964 permalink*
      January 31, 2010 12:26 am

      As I said in the original post I don’t like the conclusion I have reached but given the position that we have allowed the politicians to put us in it’s the only one I think that holds water.

      • xbradtc permalink
        January 31, 2010 12:34 am

        Quite obviously, I disagree. I think we are not past the point where we can change the venue and jurisdiction, if we have the will to do so.

  5. January 31, 2010 4:19 am

    “if we have the will to do so.”

    That’s pretty much the point right there.

    • jenn1964 permalink*
      January 31, 2010 7:27 am

      Exactly. This is a completely messed up situation.

  6. January 31, 2010 1:15 pm

    I’ll allow that your point is well-reasoned and that there is room for debate on it, but I don’t agree.
    In a Venn diagram of domestic vs. international law, the case simply falls in the overlap region.
    In my opinion, taking the domestic approach, however well-founded the argument in the tactical, literal sense, has the nasty strategic side-effect of watering down national sovereignty.
    IOW, the domestic approach only makes sense when there is a unified world government, and *all* politics and crimes are domestic in nature.
    Just my $0.02,

    • jenn1964 permalink*
      January 31, 2010 1:20 pm

      Like I said, I don’t like the conclusion either I just think it is the position that Obama et. al. have forced us into.

      My entire point is that the agents who mirandized the crotch bomber really had been left with no other option.

  7. xbradtc permalink
    February 4, 2010 1:59 pm

    Jenn, Shannen Coffin at The Corner seems to refute your argument:

    • jenn1964 permalink*
      February 4, 2010 3:43 pm

      I’m not sure that she does.

      She makes some points about whether or not the initial ruling regarding Padilla was valid, but the fact of the matter is that the Bush administration didn’t feel confident enough in their position to let it go to the Supreme Court a second time. Given the Court’s history of rulings regarding Gitmo, I wouldn’t either, and if I recall correctly at least one of those rullings occured with Roberts and Alito on the bench. Finally as I understand the law, and I am not a lawyer, the fact that Abdulmutallab is a non-citizen is immaterial. If you are in the US you are subject to American jurisprudence including the right to a lawyer.

      Again I am not saying I agree with the outcome but as I see it the FBI agents who mirandized Abd. didn’t do anything wrong – which was really my basic point to begin with. That point is reinforced by the fact that Holder has now said he made the decision.


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