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What’s It Take for Holder to Be Allowed to Do a Sunday Show? Kill Miranda!

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The White House press made a bit of a todo over the fact that Eric Holder was finally allowed to go on a Sunday show today (he’s appearing on both ABC and NBC). Given all the somewhat bizarre claims from people like Rahm that Holder botches his public statements, it sort of makes you wonder what he’d have to agree to before he’d be allowed out without a minder.

The answer?

Kill Miranda!

Even in his appearance on ABC, Holder makes a case that Miranda has not impeded any investigation to date:

The system has proven to be effective. …. people have been given Miranda warnings, people have continued to talk, as was the case [with Faisal Shahzad], as was the case with Abdulmutallab in Detroit.

And Holder has made even more passionate defenses of Miranda in the past, notably in Congressional testimony (see some quotes from such testimony here). Nevertheless, Holder effectively uses his Sunday show debut to say, “If it ain’t broke, but fearmongers like Joe Lieberman and Lindsey Graham want to attack it nevertheless, then hell! Let’s break it!”

But gosh. It sure is nice to see the last defender of rule of law allowed to appear on the Sunday shows!

Dick Cheney’s Counterterrorism Incompetence Continues to Endanger Us

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When I was out tromping around Yosemite (!!) on Friday, one of Najibullah Zazi’s co-conspirators, Zarein Ahmedzay, plead guilty to two terrorism-related charges.

Mark that up as yet another counterterrorism victory for civilian courts.

But it’s more than that. As Isikoff and Hosenball emphasize, the government revealed on Friday that Zazi and Ahmedzay received instructions from two top al Qaeda figures–Saleh al-Somali and Rashid Rauf–in 2008. Here’s how DOJ reveals the detail in their press release:

As Ahmedzay admitted during today’s guilty plea allocution and as reflected in previous government filings and the guilty plea allocution of co-defendant Najibullah Zazi, Ahmedzay, Zazi and a third individual agreed to travel to Afghanistan to join the Taliban and fight against United States and allied forces. In furtherance of their plans, they flew from Newark Liberty International Airport in Newark, N.J., to Peshawar, Pakistan at the end of August 2008. Ahmedzay and the third individual attempted to enter Afghanistan but were turned back at the border and returned to Peshawar.

Within a few days, Ahmedzay, Zazi and the third individual met with an al-Qaeda facilitator in Peshawar and agreed to travel for training in Waziristan. Upon arriving, they met with two al-Qaeda leaders, but did not learn their true identities. As the government represented during today’s guilty plea, the leaders were Saleh al-Somali, the head of international operations for al-Qaeda, and Rashid Rauf, a key al-Qaeda operative. The three Americans said that they wanted to fight in Afghanistan, but the al-Qaeda leaders explained that they would be more useful to al-Qaeda and the jihad if they returned to New York and conducted attacks there. [my emphasis]

Now, that’s interesting for several reasons. Rauf, as you might recall, had a key role in planning the foiled 2006 attempt to use liquid explosives to blow up airliners (potentially using the same TATP Zazi was going to use in his plot). The British were busy conducting a solid law enforcement investigation of the plot and were working with Pakistan to extradite Rauf. But partly in an effort to shore up Bush’s crappy poll numbers, Cheney and the guy who ordered the destruction of the torture tapes, Jose Rodriguez, asked the Pakistanis to pick up Rauf before the Brits could finish their investigation. Here’s how Ron Suskind described what happened.

NPR: I want to talk just a little about this fascinating episode you describe in the summer of 2006, when President Bush is very anxious about some intelligence briefings that he is getting from the British. What are they telling him?

SUSKIND: In late July of 2006, the British are moving forward on a mission they’ve been–an investigation they’ve been at for a year at that point, where they’ve got a group of “plotters,” so-called, in the London area that they’ve been tracking…Bush gets this briefing at the end of July of 2006, and he’s very agitated. When Blair comes at the end of the month, they talk about it and he says, “Look, I want this thing, this trap snapped shut immediately.” Blair’s like, “Well, look, be patient here. What we do in Britain”–Blair describes, and this is something well known to Bush–”is we try to be more patient so they move a bit forward. These guys are not going to breathe without us knowing it. We’ve got them all mapped out so that we can get actual hard evidence, and then prosecute them in public courts of law and get real prosecutions and long prison terms”…

Well, Bush doesn’t get the answer he wants, which is “snap the trap shut.” And the reason he wants that is because he’s getting all sorts of pressure from Republicans in Congress that his ratings are down. These are the worst ratings for a sitting president at this point in his second term, and they’re just wild-eyed about the coming midterm elections. Well, Bush expresses his dissatisfaction to Cheney as to the Blair meeting, and Cheney moves forward.

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Eric Holder Addresses the Constitution Project

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I happened to get lost, end up in DC, and show up to cover the Constitution Project’s annual dinner, particularly Attorney General Eric Holder’s keynote (see here for the [!]Breaking [!]News on that front).

Before I get into that, I just wanted to note how gratifying it is to be in a crowd of DC folks who fight for things like defendant rights and rule of law. The two awardees were George Kendall and Thomas Pickering (Alberto Mora introduced Pickering).

As Dahlia Lithwick said in her Emcee gab, these folks are the heros.

Here’s my liveblog of his talk. It sure felt like Holder’s apologia for military commissions to a bunch of civil libertarians. When you come before a bunch of people who believe in civilian trials and spend most of your time trying to push the benefits of both civilian trials and military commissions, it does not bode well.

After thanking the Constitution Project for its support of expanding access to legal services, Holder addresses his testimony before the Senate Judiciary Committee. [here’s his testimony]

Protecting America’s safety, America’s interests, and America’s values by adhering to the rule of law.  We are a nation at war. Go to bed each night thinking about how best to keep our people safe. I am determined to win this war. I know we can. We won’t win by adhering to a rigid ideology or a narrow approach. But we are also a nation that lives under rule of law. Just as on the battlefield, our government must use all the tools we can to win the war.

Scoffs at those who say Obama Administration has continued policy of Bush Admin.

Calls military commissions and civilian trials “weapons against those who choose to do us harm.”

Differences between the two fora.

Proposal by some to do away with civilian courts, not realistic. Without civilian authority, we would lose one of our key weapons, It would deny us means to punish guilty, and it would be disservice to history of civilian justice system. No question that if such a plan advances it would harm our national security.

Just look at what civilian courts have achieved.

Intelligence Undie bomber has provided has been actionable.

Names the successes:

  • Najibullah Zazi
  • Undie Bomber
  • David Headley
  • Aafia Siddiqui

In some cases, military commissions appropriate. Congress has taken extraordinary steps to improve commissions since they were first introduced. MCs reflect realities of battlefield. I have faith in our MCs, which is why I have referred 6 cases. There is no inherent contradiction between referring cases while at the same time prosecuting terrorists in civilian courts.

Commissions only have jurisdiction over AQ and affiliated groups. Not Hamas, not FARC. Not against Americans. MCs can only prosecute some violations of rules of law. Civilian prosecutors can also make other charges: firearms, false statements. Terrorism plots can be disrupted, while still collecting information. Civilian courts can provide just punishment for variety of bad acts.

Our civilian courts have 200 years of precedence. They have a reliability that gives them credibility.

Describes preference of allies to cooperate with civilian trials, says he hopes that as MCs get a better reputation, allies will cooperate on MCs too.

Debate has meant to scare rather than educate.

Holder picks up his defense of prosecutors who serve honorably. They deserve our gratitude and our respect.

Now Both JSOC AND CIA Have Green Light to Target American Citizen

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Let the competition begin. The WaPo clarifies an earlier Reuters report (which was unclear that this pertained to CIA) that Anwar al-Awlaki has been added to the CIA’s kill list, after having been on JSOC’s kill list for some months.

Anwar al-Aulaqi, who resides in Yemen, was previously placed on a target list maintained by the U.S. military’s Joint Special Operations Command and has survived at least one strike carried out by Yemeni forces with U.S. assistance against a gathering of suspected al-Qaeda operatives.

Because he is a U.S. citizen, adding Aulaqi to the CIA list required special approval from the White House, officials said. The move means that Aulaqi would be considered a legitimate target not only for a military strike carried out by U.S. and Yemeni forces, but also for lethal CIA operations.

“He’s in everybody’s sights,” said the U.S. official, who spoke on the condition of anonymity because of the topic’s sensitivity.

Does it strike you as odd that we’re targeting US citizens with no judicial process? Does it strike you as odd that we’ve got two entirely separate sets of list on which Americans can be targeted to be killed? Does it strike you as odd that we’ve now got an apparent turf battle over who gets to kill al-Awlaki?

One more bit of irony. The intelligence that won al-Awlaki a place on the kill list? It almost certainly came from Umar Farouk Abdulmutallab, who is not an American citizen (though he was captured in the US and he is the son of a bigwig banker), about whom we fought for months over whether we ought to Mirandize him.

Targeting al-Awlaki

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There’s actually what I think is a big scoop in this weird David Ignatius column on debates over whether we can target Anwar al-Awlaki. The scoop? The Yemeni government approached the US in October asking for help targeting al-Awlaki.

Last October, the Yemeni government came to the CIA with a request: Could the agency collect intelligence that might help target the network of a U.S.-born al-Qaeda recruiter named Anwar al-Aulaqi?

Now, one aspect of the weirdness of this article is that Ignatius doesn’t state clearly what the Yemeni government wanted.

He later suggests the request was not to “collect intelligence” but rather to capture al-Awlaki. But even in the same breath, he admits that that presumed “capture” might also mean “kill.”

The CIA concluded that it could not assist the Yemenis in locating Aulaqi for a possible capture operation. The primary reason was that the agency lacked specific evidence that he threatened the lives of Americans — which is the threshold for any capture-or-kill operation against a U.S. citizen. The Yemenis also wanted U.S. Special Forces’ help on the ground in pursuing Aulaqi; that, too, was refused.

The rest of Ignatius’ column engages in some hindsight reflection about what a shame it is that CIA and/or JSOC couldn’t help collect intelligence or maybe capture an American citizen or maybe kill him in the process of capturing him back in October, before Nidal Hasan launched his attack at Fort Hood. And to Ignatius’ credit, he ultimately does come down on the side of having actual evidence against Americans before the government can kill them.

In retrospect, it seems clear that the available information should have triggered closer scrutiny of both Hasan and Aulaqi. We’ll never know whether such action could have deterred Hasan. As for Aulaqi, officials now say he is on the U.S. target list.

Finally, does it make sense to require NSC permission before a potentially lethal operation against a U.S. citizen such as Aulaqi? My answer would be yes. The higher threshold that was in place in 2009 was appropriate then and still is: Use of lethal force always needs careful controls — especially when it involves Americans.

But there are two things Ignatius doesn’t really deal with in this column.

First, we were already “collecting information” from al-Awlaki. We appear to have had legal FISA wiretap on him going back some years. So, particularly given that our government has sold both warranted and bulk wiretapping as the fail safe prevention for terrorism, we really need to know why it is that CIA even entertained an information collection-I mean capture-I mean kill operation against al-Awlaki when, presumably, our existing no-kill information collection hadn’t collected even enough information to indict him.

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Another Reason to Use Civilian Courts

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This WaPo story–which tells how Mohamedou Ould Slahi and Tariq al-Sawah got special privileges and too much fast food at Gitmo in exchange for cooperation–focuses on the things the detainees get, like Subway sandwiches, their own mint garden, and their own compound. (h/t cs) But it really points to one more reason why civilian trials may be better than military commissions: because of the ability to offer something in exchange for cooperation.

With both the underwear bomber and Najibullah Zazi, officials were eventually able to get their cooperation investigating their ties with the al Qaeda network in exchange for the possibility of leniency (and for the underwear bomber, a promise not to try for the death penalty). And Jamal al-Fadl ended up being one of the key witnesses in the Embassy Bombing trial, which helped put US-based al Qaeda figures in jail for life.

Yet with Slahi and al-Sawah, there seems to be no easy way to reflect their cooperation. Rewarding these two detainees for having cooperated is considered “a hard sell.”

“I don’t see why they aren’t given asylum,” said W. Patrick Lang, a retired senior military intelligence officer. “If we don’t do this right, it will be that much harder to get other people to cooperate with us. And if I was still in the business, I’d want it known we protected them. It’s good advertising.”

A current military official at Guantanamo suggested that that argument was fair. Still, he said, it’s “a hard-sell argument around here.”

Heck, in the case of Slahi, the government is appealing Judge Robertson’s order that he be released.

And, as a number of sources admit later in the EPU range of this article, we simply don’t have the means to account for cooperation in our disposition of higher level al Qaeda detainees.

A Justice Department-led review of the cases of all detainees at Guantanamo Bay, which recently wrapped up, decided that Sawah and Slahi are owed no special treatment. An administration official, speaking before the federal court ruling on Slahi, said the government wants either to prosecute them or to hold them in some form of indefinite detention without charge.

Some current and former military officials say there should be other options. The treatment of high-profile informants such as Sawah and Slahi, they argue, will affect the government’s ability to turn other jihadists.

“We are much behind in discussing and working out details of some form of witness protection program for the most potentially important and in-danger witnesses,” said a military official who has served at Guantanamo.

The former chief military prosecutor at Guantanamo, Lawrence Morris, said officials always weighed a detainee’s cooperation, particularly its quality and timeliness, before making a charging decision.

“We were not heedless to other factors, but our job was to make our best judgment from a criminal standpoint,” said Morris, who noted that the decision to bring a case against Sawah came after prolonged deliberation and consultation with intelligence officials.

So instead of providing an incentive for al Qaeda insiders to flip in exchange for special treatment, we instead push for indefinite detention for them (albeit detention softened by fast food). And we’re left with the kind of intelligence hack contractors can collect in the field rather than real inside information.

Republicans Trashing Law Enforcement because It Polls Well

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The best explanation for why, after having been briefed that underwear bomber Umar Farouk Abdulmutallab was in FBI custody (and therefore, anyone who watches TV would know, mirandized), Republicans more recently started attacking the Obama Administration for having mirandized Abdulmutallab is this:

Republicans discovered the renewed power of terrorism in last month’s special Senate election in Massachusetts. Neil Newhouse, the pollster for the Republican victor, Scott Brown, said voters responded to the way Mr. Brown framed the issue, supporting him 63 percent to 26 percent when told he favored charging suspected terrorists as enemy combatants in a military tribunal while his Democratic opponent would give them constitutional rights and a civilian trial.

“This moved voters more than the health care issue did,” Mr. Newhouse said. “The terrorism stuff resonated, and it wasn’t just from the advertising we did.”

In fact, Mitch McConnell all but admitted that he was hitting the Administration on civilian court issues because of Scott Brown’s election in response to a question he was asked on February 3.

“If this approach of putting these people in U.S. courts doesn’t sell in Massachusetts, I don’t know where it sells,” he told a questioner.

He added: “You can campaign on these issues anywhere in America.”

That is, Republicans are attacking law enforcement–even as they have succeeded in getting Abdulmutallab’s cooperation quicker than it took the torturers to get false information out of KSM–because it polls well, because Scott Brown won on a pro-waterboarding platform.

Here’s the timeline:

December 25, 2009: Abdulmutallab attempts to bomb plane; after refusing to talk, FBI reads Miranda warning; John Brennan briefs Republican leadership that Abdulmutallab in FBI custody; FBI tells intelligence partners it will charge Abdulmutallab criminally, to no objections

December 26, 2009: FBI again tells intelligence partners it will charge Abdulmutallab criminally, to no objections

January 1, 2010: Two FBI agents fly to Nigeria to seek help from Abdulmutallab’s family

January 4, 2010: Scott Brown embraces water-boarding, advocates trying Abdulmutallab in military commission

January 5, 2010: Administration considers, but rejects, possibility of treating Abdulmutallab as enemy combatant

January 7, 2010: Obama Administration releases report of what went wrong on terror attack

January 8-10. 2010: 57% surveyed prefer military commission to civilian trial

January 17, 2010: Two Abdulmutallab family members fly back to Detroit to convince him to cooperate

January 19, 2010: Scott Brown wins special election

January 20, 2010: Joe Lieberman and Susan Collins hold hearing on Christmas bombing; Collins complains about information sharing, not Miranda warning; Blair says not consulted before Miranda read, says new interrogation team should have made decision though it is not yet functional

Several days after his family arrives: Abdulmutallab begins to cooperate

January 25, 2010: Lieberman and Collins write letter attacking FBI for giving Miranda warning

January 27, 2010: Mitch McConnell and others write Holder complaining about Miranda warning

January 30, 2010: Susan Collins attacks Obama for Miranda warning in weekly radio address

February 2, 2010: Mueller tells SSCI Abdulmutallab is cooperating

February 3, 2010: Holder responds to Republican critics; Mitch McConnell attacks “law enforcement” approach and later admits it works in campaigns, mentioning Brown’s victory

February 7, 2010: John Brennan reveals that Republican leaders briefed on FBI custody for Abdulmutallab, made no objections

February 9, 2010: John Brennan writes op-ed, “We need no lectures.”

And Now They're Disclaiming Responsibility for their Briefings

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Surprise, surprise. Just days after Crazy Pete Hoekstra did what Crazy Pete Hoekstra attacked Nancy Pelosi for last year–accused the CIA of lying–he’s now caught in another position he has criticized Pelosi for–not objecting in a briefing to an Administration policy he subsequently claimed to be vehemently opposed to. On Meet the Press this morning, John Brennan revealed that he briefed the Republican members of the Gang of Eight about the treatment of underwear bomber Umar Farouk Adbulmutallab (this is already an improvement on Bush policy, since they usually only briefed the Gang of Four). And they didn’t raise any objections to the planned treatment of him.

The Obama administration briefed four senior Republican congressional leaders on Christmas about the attempted terrorist attack on a Detroit-bound flight.

White House counterterrorism chief John Brennan said that Senate Minority Leader Mitch McConnell (R-Ky.), House Minority Leader John Boehner (R-Ohio), Sen. Kit Bond (R-Mo.) and Rep. Pete Hoekstra (R-Mich.) did not raise any objections to bombing suspect Umar Farouk Abdulmutallab being held in FBI custody.

“They knew that in FBI custody there is a process that you follow. None of those individuals raised any concerns with me at this point,” Brennan said on NBC’s “Meet the Press.” “They were very appreciative of the information.”

The Republicans are, predictably, claiming they didn’t know that normal FBI procedure includes mirandizing suspects, claiming that it wasn’t a real briefing–anything to sustain their efforts to politicize national security.

Meanwhile, I’m not holding my breath waiting for the press to call these Republicans on their excuses about the briefing or, more importantly, on their raging hypocrisy. After all, last year the press was able to sustain itself for several months over Crazy Pete’s attack on Nancy Pelosi for this (even while Crazy Pete’s attack was factually wrong). But somehow they seem to lose interest when someone like Crazy Pete gets exposed, for the second time in a week, as a raging hypocrite.

Holder to Republicans: Stop Being Such WATBs about Miranda Warnings and Mukasey's Decisions

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Eric Holder just sent the following letter to a bunch of whiny Republican Senators trying to make an issue about Americans respecting the rule of law. (I’m posting the whole thing bc there’s a lot of excellent smack down in it.)

Dear Senator McConnell:

I am writing in reply to your letter of January 26,2010, inquiring about the decision to charge Umar Farouk Abdulmutallab with federal crimes in connection with the attempted bombing of Northwest Airlines Flight 253 near Detroit on December 25, 2009, rather than detaining him under the law of war. An identical response is being sent to the other Senators who joined in your letter.

The decision to charge Mr. Abdulmutallab in federal court, and the methods used to interrogate him, are fully consistent with the long-established and publicly known policies and practices of the Department of Justice, the FBI, and the United States Government as a whole, as implemented for many years by Administrations of both parties. Those policies and practices, which were not criticized when employed by previous Administrations, have been and remain extremely effective in protecting national security. They are among the many powerful weapons this country can and should use to win the war against al-Qaeda.

I am confident that, as a result of the hard work of the FBI and our career federal prosecutors, we will be able to successfully prosecute Mr. Abdulmutallab under the federal criminal law. I am equally confident that the decision to address Mr. Abdulmutallab’s actions through our criminal justice system has not, and will not, compromise our ability to obtain information needed to detect and prevent future attacks.

There are many examples of successful terrorism investigations and prosecutions, both before and after September 11, 2001, in which both of these important objectives have been achieved — all in a manner consistent with our law and our national security interests. Mr. Abdulmutallab was questioned by experienced counterterrorism agents from the FBI in the hours immediately after the failed bombing attempt and provided intelligence, and more recently, he has provided additional intelligence to the FBI that we are actively using to help protect our country. We will continue to share the information we develop with others in the intelligence community and actively follow up on that information around the world.

1. Detention. I made the decision to charge Mr. Abdulmutallab with federal crimes, and to seek his detention in connection with those charges, with the knowledge of, and with no objection from, all other relevant departments ofthe government. On the evening of December 25 and again on the morning of December 26, the FBI informed its partners in the Intelligence Community that Abdulmutallab would be charged criminally, and no agency objected to this course of action. In the days following December 25 – including during a meeting with the President and other senior members of his national security team on January 5 – high-level discussions ensued within the Administration in which the possibility of detaining Mr. Abdulmutallab under the law of war was explicitly discussed. No agency supported the use of law of war detention for Abdulmutallab, and no agency has since advised the Department of Justice that an alternative course of action should have been, or should now be, pursued.

Since the September 11,2001 attacks, the practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States. The prior Administration adopted policies expressly endorsing this approach. Under a policy directive issued by President Bush in 2003, for example, “the Attorney General has lead responsibility for criminal investigations of terrorist acts or terrorist threats by individuals or groups inside the United States, or directed at United States citizens or institutions abroad, where such acts are within the Federal criminal jurisdiction of the United States, as well as for related intelligence collection activities within the United States.” Homeland Security Presidential Directive 5 (HSPD-5, February 28,2003). The directive goes on to provide that “(following a terrorist threat or an actual incident that falls within the criminal jurisdiction of the United States, the full capabilities of the United States shall be dedicated, consistent with United States law and with activities of other Federal departments and agencies to protect our national security, to assisting the Attorney General to identify the perpetrators and bring them to justice.”

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Breaking! A Month of Interrogation Works Better than Waterboarding Someone 183 Times

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As Admiral Mullen just testified to Congress, Underwear Bomber Umar Abdulmutallab has been cooperating with the FBI.

The blood-thirsty right, of course, has been screaming all month that Abdulmutallab wasn’t taken immediately to a military facility to be tortured interrogated harshly.

That blood-thirst has always felt rather weird to me. Unlike all the others that the torture industry has made an exhaustive effort to sufficiently dehumanize such that we (or rather they) could all cheer torture, I have a tougher time doing that with Abdulmutallab. I know that Abdulmutallab is at this very minute less than twenty miles away from me (and for two days, he was just a few miles from my house). And even with that proximity, he just doesn’t feel like that big a threat to me right now.

Maybe that’s one reason they’ve been screaming for his torture, to make sure we don’t start to normalize the thought of these people in normal prisons.

Or maybe, they wanted to prevent precisely what has occurred. That is, in response to–presumably–normal FBI interrogation, Abdulmutallab has resumed cooperating with investigators.

They didn’t need to waterboard him!

Surprise, surprise. A month of interrogation works better than a month of waterboarding.