Regarding Abdulmutallab and the Law
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The blawgosphere is buzzing this week about Abdulmutallab, or more specifically what should be done with him. You can read an interesting post summarizing the arguments on the WSJ law blog here. What it boils down to is this: Should Umar Farouk Abdulmutallab be given the same constitutional protections we afford other criminals in this country?

Sarah Palin recently posted her thoughts on the subject on her Facebook page. She titled the Post “It’s War, not a Crime Spree” and here’s what she has to say on the topic:

President Obama’s meeting with his top national security advisers does nothing to change the fact that his fundamental approach to terrorism is fatally flawed. We are at war with radical Islamic extremists and treating this threat as a law enforcement issue is dangerous for our nation’s security. That’s what happened in the 1990s and we saw the result on September 11, 2001. This is a war on terror not an “overseas contingency operation.” Acts of terrorism are just that, not “man caused disasters.” The system did not work. Abdulmutallab was a child of privilege radicalized and trained by organized jihadists, not an “isolated extremist” who traveled to a land of “crushing poverty.” He is an enemy of the United States, not just another criminal defendant.It simply makes no sense to treat an al Qaeda-trained operative willing to die in the course of massacring hundreds of people as a common criminal. Reports indicate that Abdulmutallab stated there were many more like him in Yemen but that he stopped talking once he was read his Miranda rights. President Obama’s advisers lamely claim Abdulmutallab might be willing to agree to a plea bargain – pretty doubtful you can cut a deal with a suicide bomber. John Brennan, the President’s top counterterrorism adviser, bizarrely claimed “there are no downsides or upsides” to treating terrorists as enemy combatants. That is absurd. There is a very serious downside to treating them as criminals: terrorists invoke their “right” to remain silent and stop talking. Terrorists don’t tell us where they were trained, what they were trained in, who they were trained by, and who they were trained with. Giving foreign-born, foreign-trained terrorists the right to remain silent does nothing to keep Americans safe from terrorist threats. It only gives our enemies access to courtrooms where they can publicly grandstand, and to defense attorneys who can manipulate the legal process to gain access to classified information.

Her argument stems from the idea that we are fighting a war and that prisoners of war should be treated as such and not as criminals.
Since the signing of the Treaty of Westphalia in 1648, wars have been fought almost exclusively between nation-states or factions within nation-states. Wars so conceived are limited in scope and duration. When fighting a war against a recognizable enemy, it makes sense to hold prisoners without trial for the duration of the war.
What are the consequences of redefining war to include conflicts between nations and amorphous groups? The most obvious is the inability to negotiate a peace. The “war on terror” is not being fought against any one well defined group with a universally accepted hierarchy of leadership. Even if it were limited to a “war on al-qaeda” is there any evidence to suggest that in the highly unlikely possibility that a peace was negotiated, it would be respected by individual terrorists or splinter organizations? And doesn’t Palin’s argument suggest that drug users and distributors should be treated like POW’s in the “war on drugs”?
A traditionally defined war has a well defined ending point, at which time both sides release their prisoners. The war on terror is open ended and treating captured terrorists as POW’s does not make sense in this scenario. That leaves us without a framework for handling people like Abdulmutallab.
Palin implies that giving Abdulmutallab the right to remain silent will prevent him from giving us information that could be used to stop further terrorists. I reject that assumption on multiple grounds, starting with the premise that the right to remain silent is one that can be “given” to someone by the government. Our nation was founded on the premise that we are all born with limitless freedoms but that in order to preserve a well ordered society we voluntarily entered a social contract whereby we give certain powers to a government of our own choosing that it might better protect our natural born rights. Palin fundamentally misunderstands the nature of our democracy by implying that the right to remain silent is one granted by the Constitution, rather than a pre-existing right the Constitution guarantees will not be abridged by the government.
Setting aside the abstract argument for the moment, I have to ask what Palin thinks we should do to compel Abdulmutallab to talk. Assuming he won’t willingly give us information, that leaves only coercion of some sort. Since Palin thinks legal coercion won’t be effective, I’m left to believe she thinks Abdulmutallab should be tortured. I can not support this argument on either moral or practical grounds. The moral objections to torture are widely known and often rejected. As they have failed to sway the advocates of violent forms of coercive interrogations and as I’m not a philosopher, I will leave the moral arguments for others to make and instead present a brief summary of the practical objection to torture.
In 2006, the National Defense Intelligence College presented a report by the Intelligence Science Board titled Educing Information Interrogation: Science and Art which lays out much of the argument. In a nutshell, it’s this – torture as a form of interrogation does not work and is likely to produce false results. If this seems antithetical to you, then consider the images in the past that we’ve seen of captured American servicemen who have been tortured confessing to the most heinous of crimes they did not commit. It happened in the first gulf war, it happened in Vietnam, it happened in Korea, and it happened long before television cameras existed to capture the events. Were these Americans traitors? Were they weak willed? Of course not – they were tortured beyond their breaking point and they said what they had to say to make the pain stop. Why would we expect anything different of an Islamic Extremist? Of course torturing Abdulmutallab will generate a confession and a list of names, dates, plans, contacts, but what reason do we have to believe that it will be any more accurate than the list of crimes admitted to by American servicemen who have been tortured in the past? The fundamental truth is this: When you are tortured past your breaking point you will say or do anything to make the pain stop and in the case of interrogations that means you will tell your interrogator whatever it is you think they want to hear without regard to whether it is true or not. Torture will induce confessions, but will not induce truth.
The American legal system is not perfect and will not yield perfect results but it will put Abdulmutallab behind bars where he belongs. I’m reminded of Winston Churchill’s famous quote: “It has been said that democracy is the worst form of government except all the others that have been tried.”
Palin also argues that giving Abdulmutallab his day in court will allow him to grandstand, as though a pluralist society like America is incapable of hearing the radical views of a religious fundamentalist before rejecting them. I think history has spoken for itself on that subject.
I welcome your thoughts.




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