TOPICS > Politics

Debate Reignites on Legal Rights of Terror Suspects

February 3, 2010 at 12:00 AM EST
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The suspect in the attempted Christmas Day bombing incident is speaking to authorities again, but some lawmakers are worried the administration's handling of the case poses a risk to national security. Jim Lehrer speaks with experts about how the U.S. should prosecute terror suspects.
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JIM LEHRER: The Obama administration stepped up its defense today of how it’s handling terror cases. That followed reports that a Nigerian man is telling what he knows about the airliner bombing attack last December.

“NewsHour” correspondent Kwame Holman begins our coverage.

KWAME HOLMAN: It’s not clear exactly what he’s saying, but, by all accounts, Umar Farouk Abdulmutallab began cooperating with the FBI last week. He allegedly tried to blow up an incoming transatlantic flight over Detroit on Christmas Day.

After the plane landed, he spoke briefly to investigators, then was read his rights, asked for his lawyer, and stopped talking, until recently. At a late-night briefing at the White House, administration officials said Abdulmutallab’s family members were flown from Nigeria to the U.S. to help persuade him to answer questions.

They said he supplied information about his contacts in Yemen, where allegedly he was trained by al-Qaida and talked about intelligence related to multiple terror threats.

Top intelligence officials have conceded they were not immediately consulted about how to handle Abdulmutallab. But, today, Attorney General Eric Holder took responsibility. He said suspects captured inside the U.S. always have been placed in the federal courts.

He wrote to Senate Republican Leader Mitch McConnell, saying, “No agency has since advised the Department of Justice that an alternative course of action should have been pursued.”

Holder’s statement followed growing Republican criticism.

SEN. SUSAN COLLINS, R-Maine: Then he was given a Miranda warning and a lawyer.

KWAME HOLMAN: Over the weekend, Maine Senator Susan Collins charged, the Obama team has a blind spot when it comes to fighting terrorism. And South Carolina Senator Lindsey Graham followed up yesterday.

SEN. LINDSEY GRAHAM, R-S.C.: It makes no sense to capture someone fresh off the battlefield and, within 50 minutes, read them their Miranda rights and lose all the intelligence they possess to help us win this war.

KWAME HOLMAN: But, at a Senate hearing that same day, FBI Director Robert Mueller insisted, no intelligence was lost.

ROBERT MUELLER, director, FBI: In the initial interview, we had to determine whether there were other bombs on the plane, whether there were other planes that had similar attacks contemplated, wanted to understand who the bombmaker was, who had directed him. All of that came in the first series of questions.

KWAME HOLMAN: And, today, White House officials rejected complaints that they shouldn’t have let it be known that Abdulmutallab is talking again.

BILL BURTON, White House spokesman: The reason that people were told about the success of these interviews didn’t have anything to do with politics — that these interrogations are working, that we’re getting evidence that is actionable, and that we feel like we have pursued the right course. No information that was given out over the course of those briefings compromises that in any way.

KWAME HOLMAN: In the meantime, the director of national intelligence, Dennis Blair, has voiced new concern that another attack on the U.S. could come soon, in the next three to six months.

JIM LEHRER: For more on how terror suspects should be handled, Michael Mukasey was attorney general during the last year of the Bush administration. He is now an attorney in private practice in New York City. Eugene Fidell is president of the National Institute of Military Justice, and he’s a senior research scholar at Yale University Law School.

First, Mr. Mukasey, do you believe, specifically, that the Christmas Day bomber case should be handled through federal civilian court?

MICHAEL MUKASEY, former U.S. Attorney General: In a word, no. Certainly, the decision shouldn’t be made immediately to do that. I think the first concern should have been to use him, not as a defendant, but as an intelligence asset, and to treat him in that fashion, until a decision was made about where ultimately to prosecute him.

JIM LEHRER: But then what would have been his status then during that interim time? Would he have been considered a — somebody fresh off the battlefield, as Senator Graham said, or what would be his status legally?

MICHAEL MUKASEY: He would have been considered — he would have been considered an unlawful combatant. There have been others arrested in the United States, not withstanding what is in the attorney general’s letter, that were treated eventually as unlawful combatants. And I can think of at least two of them.

JIM LEHRER: All right.

Now, Mr. Fidell, you disagree with that. You think the way that the U.S. government and specifically Attorney General Holder proceeded is correct, right?

EUGENE FIDELL, president, National Institute of Military Justice: I do.

I think that the administration brought to bear the proper questions. They asked the proper questions. And what they did in this case is totally consistent with the pattern that the Department of Justice has evolved over the period since 9/11.

JIM LEHRER: Mr. Mukasey says there are at least two examples where somebody who was arrested in the United States on a terrorism thing was in fact taken through military channels. Do you dispute that?

EUGENE FIDELL: Right. The cases — you have to be specific, Jim. The cases are the cases I believe of Mr. Padilla and the case of Mr. al-Marri. Both of those cases sort of wove a meandering course between the federal district courts and the military commission system, and wound up right back in the federal district courts, where they were convicted and they received very long jail terms.

So, although there have been miscues — and I think there were miscues in both of those cases — at the end of the day, they were handled exactly consistently with what Attorney General Holder has done in the case of Mr. Abdulmutallab.

JIM LEHRER: Mr. Mukasey, you were shaking your head just now.

MICHAEL MUKASEY: Perceptive.

JIM LEHRER: Why?

MICHAEL MUKASEY: I should have — I guess I should have held a stone face, as some people suggest Justice Alito should have done. But I couldn’t resist.

JIM LEHRER: All right.

MICHAEL MUKASEY: Although I did know I was on camera.

JIM LEHRER: What’s wrong with what — we don’t want to go through too much — too much of the weeds here. Let’s just get to the point.

MICHAEL MUKASEY: OK.

JIM LEHRER: Why is it that you believe that people like the Nigerian involved in the Christmas bombing should be handled through a military way, at least at the beginning, rather than the civilian courts from the beginning?

MICHAEL MUKASEY: Because his principal value was as an intelligence asset. He — the first intercepts on him went back to August. We knew that he had been — obviously been trained by somebody. That bomb had — he hadn’t made himself. Somebody else had made it. He said there were other people on the way.

He should have been questioned, not only by people who were trained interrogators, but by people who knew a substantial amount about al-Qaida and Yemen. And those people were not to be found immediately in Detroit.

Then there should have been an opportunity to check that information out and to come back to him with yet additional requests. It wasn’t simply a matter of getting a few dribbles of information out of him, and then making due with that.

JIM LEHRER: Mr. Fidell, what would be your problem with having done it that way?

EUGENE FIDELL: It’s not my problem. It’s — the problem is the Constitution of the United States.

The Constitution provides that people who are undergoing custodial interrogation — and that includes this individual — have a right to be warned concerning their right to remain silent, that anything they say may be used against them, and to be provided an attorney.

That, it seems to me, has to be respected. And I’m concerned that the position that Attorney General Mukasey is espousing and some of the highly respected Republican members of the U.S. Senate have been espousing gives the Constitution second place. And I think, by doing that, we lose the major battle here, which is to preserve our country and our country’s institutions and values.

JIM LEHRER: Mr. Mukasey, you want to give the Constitution second place?

MICHAEL MUKASEY: Not at all.

The Constitution is not a treaty with the world. It’s a pact under which we have organized — it’s a law, I should say, under which we have organized the government of the United States. It doesn’t require that we treat every unlawful combatant as a criminal defendant.

In point of fact, when the Germans landed saboteurs on Long Island and off Florida, those people were treated as unlawful combatants. They were prosecuted before a military tribunal in Washington, notwithstanding that the courts were open, and they were executed. And all of that took place within three months of the time they landed.

JIM LEHRER: Mr. Fidell, what about — what would be the…

MICHAEL MUKASEY: The issue…

JIM LEHRER: Sorry. Yes. Go ahead, sir.

MICHAEL MUKASEY: I’m sorry.

The with regard to Abdulmutallab, though, is not prosecution. It is intelligence. And that has a very short shelf life, some of it. Some of it is durable. Some of it isn’t. And we should have been at that right away. I understand…

EUGENE FIDELL: Well, let me speak to…

MICHAEL MUKASEY: … that he’s talking again. And I think that’s terrific.

JIM LEHRER: What about that point?

EUGENE FIDELL: Let me speak…

JIM LEHRER: Yes.

EUGENE FIDELL: Yes, I would like to respond to that.

There are times — and I know Attorney General Mukasey understands this from his personal experience both in that position and as a federal district judge — but there are times when any prosecutor has to make some hard choices. And you might have to make the hard choice of extracting information from somebody in violation of the Miranda decision of the Supreme Court, and recognize that you’re going to harm your opportunity to prosecute that individual in the future.

Those are terrible choices. I think Attorney General Holder is enough of a prosecutor and learned enough in the law to understand those choices. And I must say, I’m — I don’t feel that people should be second-guessing his judgment on the administration of justice.

Moreover, I think it should be emphasized that we have a very hands-on president of the United States who, unlike many of his predecessors, is not only an attorney, but an extremely capable attorney. And to do armchair, you know, philosophizing about this, when these people are trying to get on with seeing that the laws are enforced, I think, is extremely unfortunate.

JIM LEHRER: Mr. Mukasey, what about that?

The president of the United States and the attorney general of the United States have made this decision. What’s wrong with leaving it with them?

MICHAEL MUKASEY: It is their decision to make. However, I was invited on this show to give my opinion of it.

JIM LEHRER: Absolutely.

MICHAEL MUKASEY: And I’m happy to give my opinion of it.

JIM LEHRER: Yes. But, I mean, you don’t feel — you don’t feel that the decisions were wrong? You do feel the decisions were wrong and should be reversed?

MICHAEL MUKASEY: I do feel the decisions were wrong, because the only downside of interrogating him immediately without a lawyer is if they subsequently decided to prosecute him in a civilian court, which itself is debatable.

But let’s say that you assume they will do that. The only thing that’s lost is his confession. And given the fact that he committed his offense in front of 285 witnesses, that’s not a big loss.

JIM LEHRER: What do you think, Mr. Mukasey, of the action of the United States Congress to withdraw funding for not only this case, but all cases of — terrorist cases that are going to be tried in federal criminal court? Do you think that’s a proper way to kind of regulate this?

MICHAEL MUKASEY: I’m really saddened by that. I think it’s not a way — it shouldn’t have to be a way to regulate it.

I believe that the executive should make these decisions and should make them appropriately. Congress has the power to withdraw funding. But I’m — I think it’s a very sad day when Congress gets involved in the day-to-day handling of cases.

The fact is that there may be very good reason for them to do that, but it saddens me, just as a matter of the way our system should function, that it has come to that.

JIM LEHRER: In a word, Mr. Fidell, you also believe this is a sad day?

EUGENE FIDELL: I think it’s worse than sad. I think it’s quite concerning because of the constitutional implications.

It’s — number one, it’s left up, under the Constitution, to the president to take care that the laws are enforced. And to manipulate the jurisdiction and resources of the federal district courts raises a separation-of-powers issue, and I think it tarnishes what all Americans believe is the jewel in the crown of our legal system, the federal courts.

JIM LEHRER: OK. We will leave it there.

Mr. Mukasey, Mr. Fidell, thank you both very much.

EUGENE FIDELL: Thank you.