In the war on terrorism, this country faces an enemy whose theory of warfare ends the hard-won distinction in modern thought between combatant and noncombatant. In doing that for which we have created government — ensuring life, liberty and the pursuit of happiness — how can we be adequately aggressive to ensure the first value, without unduly threatening the other two? This is hard. And people don’t have to be lazy or stupid to get it wrong.
We got it wrong in Detroit on Christmas Day. We allowed an enemy combatant the protections of our Constitution before we had adequately interrogated him. Umar Farouk Abdulmutallab is not “an isolated extremist.” He is the tip of the spear of a complex al-Qaeda plot to kill Americans in our homeland.
In the 50 minutes the FBI had to question him, agents reportedly got actionable intelligence. Good. But were there any experts on al-Qaeda in the Arabian Peninsula in the room (other than Abdulmutallab)? Was there anyone intimately familiar with any National Security Agency raw traffic to, from or about the captured terrorist? Did they have a list or photos of suspected recruits?
When questioning its detainees, the CIA routinely turns the information provided over to its experts for verification and recommendations for follow-up. The responses of these experts — “Press him more on this, he knows the details” or “First time we’ve heard that” — helps set up more detailed questioning.
None of that happened in Detroit. In fact, we ensured that it wouldn’t. After the first session, the FBI Mirandized Abdulmutallab and — to preserve a potential prosecution — sent in a “clean team” of agents who could have no knowledge of what Abdulmutallab had provided before he was given his constitutional warnings. As has been widely reported, Abdulmutallab then exercised his right to remain silent.
In retrospect, the inadvisability of this approach seems self-evident. Perhaps it didn’t appear that way on Dec. 25 because we have, over the past year, become acclimated to certain patterns of thought.
Two days after his inauguration, President Obama issued an executive order that limited all interrogations by the U.S. government to the techniques authorized in the Army Field Manual. The CIA had not seen the final draft of the order, let alone been allowed to comment, before it was issued. I thought that odd since the order was less a legal document — there was no claim that the manual exhausted the universe of lawful techniques — than a policy one: These particular lawful techniques would be all that the country would need, at least for now.
A similar drama unfolded in April over the release of Justice Department memos that had authorized the CIA interrogation program. CIA Director Leon Panetta and several of his predecessors opposed public release of the memos in response to a Freedom of Information Act lawsuit on the only legitimate grounds for such a stand: that the documents were legitimately still classified and their release would gravely harm national security. On this policy — not legal — question, the president sided with his attorney general rather than his CIA chief.
In August, seemingly again in contradiction to the president’s policy of not looking backward and over the objections of the CIA, Justice pushed to release the CIA inspector general’s report on the interrogation program. Then Justice decided to reopen investigations of CIA officers that had been concluded by career prosecutors years ago, even though Panetta and seven of his predecessors said that doing so would be unfair, unwarranted and harmful to the agency’s current mission.
In November, Justice announced that it intended to try Khalid Sheikh Mohammed and several others in civilian courts for the Sept. 11, 2001, attacks. The White House made clear that this was a Justice Department decision, which is odd because the decision was not legally compelled (other detainees are to be tried by military commissions) and the reasons given for making it (military trials could serve as a recruitment tool for al-Qaeda, harm relations with allies, etc.) were not legal but political.
Even tough government organizations, such as those in the intelligence community, figure out pretty quickly what their political masters think is not acceptable behavior. The executive order that confined interrogations to the Army Field Manual also launched a task force to investigate whether those techniques were sufficient for national needs. Few observers believed that the group would recommend changes, and to date, no techniques have been added to the manual.
Intelligence officers need to know that someone has their back. After the Justice memos were released in April, CIA officers began to ask whether the people doing things that were currently authorized would be dragged through this kind of public knothole in five years. No one could guarantee that they would not.
Some may celebrate that the current Justice Department’s perspective on the war on terrorism has become markedly more dominant in the past year. We should probably understand the implications of that before we break out the champagne. That apparently no one recommended on Christmas Day that Abdulmutallab be handled, at least for a time, as an enemy combatant should be concerning. That our director of national intelligence, Denny Blair, bravely said as much during congressional testimony this month is cause for hope.
Actually, Blair suggested that the High Value Detainee Interrogation Group (HIG), announced by the administration in August, should have been called in. A government spokesman later pointed out that the group does not yet exist.
There’s a final oddity. In August, the government unveiled the HIG for questioning al-Qaeda and announced that the FBI would begin questioning CIA officers about the alleged abuses in the 2004 inspector general’s report. They are apparently still getting organized for the al-Qaeda interrogations. But the interrogations of CIA personnel are well underway.
Michael V. Hayden, director of the CIA from 2006 to 2009.