Terror Policy Clash: Robert Gibbs V. Susan Collins

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Over the weekend, Maine Republican Sen. Susan Collins gave a pretty blistering address on behalf of her party.

It included this charge:

The Obama administration appears to have a blind spot when it comes to the War on Terrorism. And, because of that blindness, this administration cannot see a foreign terrorist even when he stands right in front of them, fresh from an attempt to blow a plane out of the sky on Christmas Day. There’s no other way to explain the irresponsible, indeed dangerous, decision on Abdulmutallab’s interrogation. There’s no other way to explain the inconceivable treatment of him as if he were a common criminal.

This morning, Collins, the ranking member of the Homeland Security Committee, continued her criticism, releasing a statement that earned a quick rebuttal from White House spokesman Robert Gibbs. First the Collins statement:

I remain concerned that there was no consultation with intelligence officials before the Department of Justice unilaterally decided to treat Abdulmutallab as if he were an ordinary criminal. If Abdulmutallab is now talking in the context of plea negotiations, that is, of course, welcome, but it implies that the government is willing to grant him a measure of leniency for the information he is willing to provide. We will never know whether the quality and quantity of information might have been superior had he not been given a lawyer who is now guiding him on what to reveal and what not to disclose. The lack of coordination on the front end and the inexplicable, reflexive choice to use a law enforcement approach were dangerous decisions.

Here was Gibbs response:

First, all the senior leadership in government involved in intelligence knew that Abdulmutallab was being indicted more than a day before and they supported that decision.  Those represented in the Situation Room who discussed how he would be indicted in an Article III include the following:
Director of National Intelligence Dennis Blair, National Security Agency head LT General Keith Alexander, Attorney General Eric Holder, Secretary of Defense Robert Gates, FBI Director Bob Mueller, Homeland Security Secretary Janet Napolitano, National  Counter Terrorism Center Director Mike Leiter, National Security Advisor General Jim Jones, Central Intelligence Agency Director Leon Panetta, Secretary of State Hillary Clinton

Second, the Bush administration attempted to deny Jose Padilla access to counsel when he was detained as an “enemy combatant,” but was overruled by federal judge Michael Mukasey. Mukasey went on to become the Attorney General in the Bush Administration.  Mukasey declared that Padilla had a right to access to counsel, even when being held as an enemy combatant.  Mukasey even rejected the Bush Administration’s arguments that granting Padilla access to counsel for the purposes of contesting the factual basis of his detention would “jeopardize the two core purposes of detaining enemy combatants—gathering intelligence about the enemy, and preventing the detainee from aiding in any further attacks against America.”  If Abdulmutallab were detained as an enemy combatant, the same standard would have applied to him.   If Abdulmutallab were prosecuted in military commissions, he would also be given access to an attorney.

Third, the FBI’s current policy vis-à-vis Miranda warnings for arrests inside the United States is articulated in its Domestic Investigations and Operations Guide (DIOG), which was finalized at the end of the prior Administration, and in the Legal Handbook for Special Agents, the relevant portions of which have been in effect for many years.   This policy, which is consistent with the policy of all known U.S. law enforcement agencies, is to provide Miranda warnings prior to custodial interrogation.  As the DIOG explains (page 63), “[w]ithin the United States, Miranda warnings are required to be given prior to custodial interviews . . . .”  FBI policy also reminds agents that “standard booking questions and public safety questions” are not “interrogation” for purposes of Miranda.   In both terrorism and non-terrorism cases, the FBI’s experience has been that many defendants will talk and cooperate with the FBI after being Mirandized.

Fourth, Abdulmutallab has not been offered anything.  The Department of Justice take his cooperation “into consideration.”

Fifth, the Federal Bureau of Investigation is part of the intelligence community. Since 9/11, the FBI has made preventing terrorism its principal mission. The men and women of the FBI have disrupted plots, saved American lives, and acquired intelligence that has allowed us to take the fight to terrorists overseas. That includes the counter-terrorism professionals who were on the scene in Detroit, and those who continue to gather critical intelligence from Abdulmutallab while politicians in Washington second-guess their work.

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