Mukasey: FBI custody does not require criminal processing for enemy combatants

Former Attorney General Michael Mukasey has heard enough of the arguments coming from the Obama administration about the decisions surrounding the processing of Umar Farouk Abdulmutallab to object strenuously in today’s Washington Post.  Laying out his argument in the manner of a legal brief, Mukasey systematically deconstructs the notion that FBI action in the beginning of the process is a determinant of the process selection of an enemy combatant, regardless of citizenship.  In doing so, Mukasey may have stumbled onto old tensions between intelligence and law-enforcement efforts:

If possible, FBI custody is even less relevant today in determining someone’s status. In 1942 the FBI was exclusively a crime-fighting organization. After Sept. 11, 2001, the agency’s mission was expanded beyond detection of crime and apprehension of criminals to include gathering intelligence, helping to prevent and combat threats to national security, and furthering U.S. foreign policy goals. Guidelines put in place in 2003 and revised in September 2008 “do not require that the FBI’s information gathering activities be differentially labeled as ‘criminal investigations,’ ‘national security investigations,’ or ‘foreign intelligence collections,’ or that the categories of FBI personnel who carry out investigations be segregated from each other based on the subject areas in which they operate. Rather, all of the FBI’s legal authorities are available for deployment in all cases to which they apply to protect the public from crimes and threats to the national security and to further the United States’ foreign intelligence objectives.”

In this, we can hear an echo of the 9/11 Commission and the Jamie Gorelick-enhanced “wall” between intelligence and law enforcement activities.  The Commission (which inexplicably included Gorelick herself) concluded that the insistence of a high degree of separation between the two functions, requiring separate personnel and disincentivizing communications, created the problems in  “connecting the dots” prior to the attacks on the World Trade Center and Washington DC.  The “wall” had been removed by the time the commission reached that conclusion (Congress and the Bush administration acted more quickly in that instance) by restructuring the FBI as Mukasey points out here.

Bear in mind that removing the “wall” was not a unanimously supported effort, at least not later.  Worries arose about potential abuses of power, especially in regards to domestic intelligence-gathering activities, that would have its own echoes later in the now-infamous DHS report on right-wing “extremism.”  However, the key goal of the 2003 and 2008 actions was to allow the FBI to work in both capacities as needed with as much flexibility as possible to connect dots and prevent terrorist attacks rather than just investigate them afterward.

Mukasey continues:

Contrary to what the White House homeland security adviser and the attorney general have suggested, if not said outright, not only was there no authority or policy in place under the Bush administration requiring that all those detained in the United States be treated as criminal defendants, but relevant authority was and is the opposite. The Supreme Court held in Hamdi v. Rumsfeld that “indefinite detention for the purpose of interrogation is not authorized” but also said in the same case that detention for the purpose of neutralizing an unlawful enemy combatant is permissible and that the only right of such a combatant — even if he is a citizen, and Abdulmutallab is not — is to challenge his classification as such a combatant in a habeas corpus proceeding. This does not include the right to remain silent or the right to a lawyer, but only such legal assistance as may be necessary to file a habeas corpus petition within a reasonable time. That was the basis for my ruling in Padilla v. Rumsfeld that, as a convenience to the court and not for any constitutionally based reason, he had to consult with a lawyer for the limited purpose of filing a habeas petition, but that interrogation need not stop.

What of Richard Reid, the “shoe bomber,” who was warned of his Miranda rights and prosecuted in a civilian court? He was arrested in December 2001, before procedures were put in place that would have allowed for an outcome that might have included not only conviction but also exploitation of his intelligence value, if possible. His case does not recommend the same procedure in Abdulmutallab’s.

With those precedents in mind, why did the Obama administration insist on following criminal process rather than the obvious military-commission option?  It comes from a mindset that Obama brought to the executive branch that the law-enforcement model is preferable.  It’s not required, but Obama and Eric Holder choose to use it because of their distaste for the alternatives.

How much longer before we see the reconstruction of the “wall”?

Update: Made the title more precise; Mukasey is talking about the specific case of enemy combatants.

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John Sexton 10:00 PM on June 02, 2023