A Tale of Two Terrorists

The Obama administration's decision to read the Christmas Day bomber his Miranda rights has rightly come under withering criticism. Instead of a lengthy interrogation by officials with al Qaeda expertise, Umar Farouk Abdulmutallab was questioned for 50 minutes by local FBI agents and then later advised of his “right to remain silent.”

It's well understood that the focus on gaining evidence for a criminal trial was an intelligence failure of massive proportions. Not well understood is that the most powerful recent argument for aggressively interrogating terrorists, keeping them in military detention, and prosecuting them in military commissions comes to us from the Obama Justice Department itself.

On Dec. 18, 2009, days before the Christmas attack, the U.S. attorney for the Southern District of New York, Preet Bharara, made a secret filing in federal district court that was aimed at saving the prosecution of Ahmed Ghailani, another al Qaeda terrorist. Ghailani is facing charges for helping al Qaeda bomb U.S. embassies in Kenya and Tanzania in 1998. Ghailani argues that those charges should be dropped because lengthy CIA interrogations have denied him his constitutional right to a speedy trial.

Mr. Bharara, on behalf of the Justice Department, filed a memorandum with the court stating that Ghailani's claims are dangerous and off the mark. Interrogating terrorists must come before criminal prosecution, he wrote in language so strong that even a redacted version of his filing (which we have obtained) serves as a searing indictment of the administration's mishandling of Abdulmutallab.

“The United States was, and still is, at war with al Qaeda,” Mr. Bharara argued. “And because the group does not control territory as a sovereign nation does, the war effort relies less on deterrence than on disruption-on preventing attacks before they can occur. At the core of such disruption efforts is obtaining accurate intelligence about al Qaeda's plans, leaders and capabilities.”

Mr. Bharara is right. The interrogation of a high-value terrorist is a critical opportunity to obtain intelligence. As Mr. Bharara pointed out in regards to Ghailani, “the defendant was . . . a rare find, and his then-recent interactions with top-level al Qaeda terrorists made him a potentially rich source of information that was both urgent and crucial to our nation's war efforts.” Abdulmutallab's recent interactions with leaders of al Qaeda in the Arabian Peninsula made it likely he could give up actionable intelligence. He possessed unique information about those who deployed him, bomb makers who prepared him, and operatives who trained with him.

As Mr. Bharara's memorandum notes, “The terrorist attacks of September 11, 2001 . . . naturally resulted in a heightened focus on intelligence gathering to preempt another attack.” He went on to say that “when the United States took custody of the defendant . . . and it justifiably believed that he had actionable intelligence that could be used to save lives, it reasonably opted to treat him initially as an intelligence asset.”

The Justice Department did not bring Ghailani to a civilian court immediately after he was captured in 2004, preferring, after his lengthy interrogation was completed, to prosecute him in a military commission. It wasn't until June that his case was shifted to the criminal justice system.

Moreover, the government “did not Mirandize the defendant at any point to preserve the possibility of later using his inculpatory statements. It did not maintain a strict chain of custody with respect to physical evidence in the manner of a law enforcement agency. . . . Indeed, the goal of the [CIA interrogation program] was remote from law enforcement; the program's purpose was to gain intelligence, not to get admissible confessions or to gather admissible evidence.”

This, according to Mr. Bharara's filing, was the right approach: “the defendant . . . did in fact have actionable intelligence about al Qaeda,” and thus “the interest in national security plainly justified holding the defendant in this case as an enemy combatant, interrogating him, and prosecuting him for violations of the laws of war, even if that meant delaying his criminal trial.”

Days after Mr. Bharara's filing, as the Abdulmutallab fiasco unfolded, Attorney General Eric Holder and other senior administration officials made it clear in congressional testimony and numerous media appearances that their focus was no longer on gathering intelligence to pre-empt an attack, but on prosecuting terrorists in the criminal justice system. That change in focus likely grew out of President Barack Obama's early decision to close the prison complex at Guantanamo, and to transfer high-value detainees like Ghailani who have been held there to the criminal justice system.

One immediate consequence of the president's approach is the effort by Ghailani's lawyers to take full advantage of a bevy of constitutional rights that are available to him in the civilian justice system, but which he would have never received in a military commission. Ghailani's demand that charges against him be dropped because of the long delay in getting a trial is likely only the first of a torrent of filings to come from al Qaeda members if the administration persists on trying them in civilian courts.

Administration officials have rejected robust interrogation methods and announced that those remaining Guantanamo detainees who would be neither tried nor released are slated to be transferred to a prison in Thompson, Ill.

These decisions have been accompanied by intensified investigations of, and threats to prosecute, career and political officials from the previous administration. So it is ironic that the assessments laid out in the Ghailani memorandum were not proffered by the administration's conservative critics, but by Mr. Bharara, who was appointed by Mr. Obama, and the career Justice officials who helped draft his filing. In other words, it was written by those who have been forced to deal with the consequences of trying terrorists in civilian courts.

This administration's approach greatly impairs our ability to obtain vital intelligence and puts us all at greater risk of suffering another terrorist attack. Hopefully, the administration will consider the arguments of its own prosecutors and change course before it's too late.

Mr. Rivkin, served in the Reagan and George H.W. Bush administrations, is a Washington, D.C., attorney and cochairman of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies. Mr. Thiessen, a former speech writer for President George W. Bush, is the author of “Courting Disaster,” just published by Regnery.